Ontario Court of Justice

Date: 2024 05 15 Court File No.: Toronto 21 35002352

Between:

HIS MAJESTY THE KING

— AND —

DEAN ARCHIBALD

Before: Justice R. Wright

Heard on: April 5, 2024 Reasons for Judgment released on: May 15, 2024

Counsel: J. Hanna, counsel for the Crown Y. Gupta, counsel for the accused Dean Archibald

WRIGHT J.:

[1] On July 17, 2023, following a trial, I found Dean Archibald guilty of four counts: aggravated assault, assault, theft under $5000 and mischief under $5000.

[2] The two victims of these offences were William and Tracey Haylow, the superintendents at the building where Mr. Archibald was residing. William Haylow was rendered unconscious by Mr. Archibald’s physical attack and suffered significant injuries requiring hospitalization and surgery. Tracey Haylow was assaulted in the course of attempting to offer aid to William Haylow, and Mr. Archibald took and destroyed her phone to prevent her from calling the authorities.

[3] The Crown seeks a global sentence of five-years jail, a DNA Order, and a s. 109 Order.

[4] The Defence submits that the appropriate jail sentence is two-years-less-a-day, to be served conditionally in the community (a Conditional Sentence Order “CSO”).

The Offences

[5] William and Tracey Haylow are married and have been building superintendents for decades. In the spring of 2021, Mr. Archibald, along with his mother, moved into the Scarborough apartment building that they were managing. Prior to June 25, 2021, there was limited contact between the Haylows and the Archibalds related to moving into the building, Mr. Archibald being in the parking garage, and a noise complaint.

[6] On June 25, 2021, Mrs. Haylow received a complaint from the upstairs tenant regarding Mr. Archibald: Mr. Archibald had been at her door, banging and shouting at it, frightening her and her children. Mr. Haylow told Mrs. Haylow he would go speak to Mr. Archibald, determine what the issue was, and tell him that any complaints should be dealt with through the office.

[7] Mr. Archibald was at home alone in the apartment. He answered Mr. Haylow’s knock. Mr. Haylow advised him that he could not confront other tenants. Mr. Archibald was uppity in response. Words were exchanged. The conversation at the door was less than two minutes, after which Mr. Archibald shut and locked the door. Mr. Haylow walked back toward the elevator.

[8] As he approached the elevator Mr. Haylow was struck from behind by Mr. Archibald. He did not know he was going to be assaulted and had no opportunity to defend himself. The attack was vicious and forceful; Mr. Archibald struck blows to both sides of Mr. Haylow's face, his neck/left clavicle, and his upper chest. Mr. Haylow was knocked unconscious. His dentures were knocked out of his mouth and one side broken into pieces, and his glasses were knocked from his face and one arm broken from them.

[9] Mrs. Haylow arrived in the elevator to see Mr. Archibald standing over Mr. Haylow’s prone body shouting; there was significant blood. She rushed out of the elevator, put herself between Mr. Archibald and Mr. Haylow, and attempted to call for help with her cell phone. Mr. Archibald grabbed her wrist and forced her to the ground, while trying to wrestle the phone away from her in order to prevent her call to 911. Mr. Archibald took the phone, threw it on the ground, stomped on it twice, and then picked it up and threw it over Mr. Haylow onto the hallway floor.

[10] Another resident of the building had been in the elevator with Mrs. Haylow; she retrieved a hammer from her nearby apartment and came to Mrs. Haylow’s aid. She approached Mr. Archibald warning him that she would use the hammer, and Mr. Archibald retreated to his apartment, where he locked the door. It took several hours after police attended before he agreed to surrender for arrest.

[11] Mr. Haylow was significantly injured by the assault. He suffered 11 fractures including to his left cheekbone, sinus walls, nasal bone, hard palate, left and right orbital rims, and left and right mandibular bones. He also had swelling and bruising to his left clavicle and left chest wall. There was both external and internal bleeding. Damage to his eye required surgical intervention. He experienced memory loss related to the incident and has ongoing issues with his short-term memory.

Victim Input

[12] William Haylow has suffered ongoing physical pain and cognitive issues as well as psychological trauma since the assault. He had a lengthy surgery on his face. In his Victim Impact Statement ("VIS") he details how he still feels uncomfortable whenever someone is behind him. He has no short-term memory, and this memory may never return. He has lost his active lifestyle; he is insecure about traveling out on transit because of his disabilities. He has trouble with his balance and has suffered a number of falls. He continues to experience pain in his jaw, which does not close properly. It is sore where the wires hold it together and he has no sensation in parts of his lips. The difficulties with his jaw and mouth impact his ability to eat certain foods, and his enjoyment of them. The vision in his left eye is poor, and his lid does not close.

[13] Tracey Haylow has suffered significant psychological impact from the assault on her husband. She expresses in her VIS the constant fear she has felt knowing Mr. Archibald is in the community. She has not slept through the night since the incident. She has gone from being her husband's wife to being his caregiver. She details that his constant falls cause her stress and anxiety. She has further stress because the couple is not in a financial position to retire or change jobs.

The Offender

[14] I had the benefit of both a Pre-Sentence Report (“PSR”) and a Report pursuant to the Mental Health Act (“MHA”). The PSR provides some insight into Mr. Archibald's family history and current community supports. The MHA report provides further insight into some of Mr. Archibald's thought processes, a likely diagnosis, and his rehabilitative potential.

[15] Mr. Archibald is 50-years old. He has a prior criminal record, which is somewhat dated: he was fined $800 for possession of a Schedule II substance in January 2010; sentence was suspended and 18-months probation imposed for a domestic assault in December of 2012, and; he received a 14-day intermittent jail sentence and probation for possession of a Schedule I substance in April of 2016.

[16] He was raised by both of his parents in Scarborough. He witnessed domestic violence by his father while growing up. He would stand up for his mother and receive threats from his father for doing so. When his mother left her husband, it was with the support of her son. The two remain quite close. Mr. Archibald was living with her at the time of these offences. He is the only support for his mother, and her primary caregiver. She is now 80-years old and retired. He has the support of his mother, who also reported that the larger family is supportive of him.

[17] Mr. Archibald completed high school in 1992 and has completed certifications in personal training and computers. He has held varied employment, most recently his own business as a contractor. He has several children (there is a discrepancy between the PSR and the MHA report as to the number; three or five). He does not have a relationship with any of their mothers. He financially supports the children, but does not see them often, as he reported they do not want to spend time with him.

[18] Mr. Archibald has previously responded well to community supervision, completing his partner assault response counselling and having good reporting habits.

[19] The author of the PSR noted Mr. Archibald as deflecting responsibility for the offences and justifying his actions, however Mr. Archibald expressed remorse for the injuries to Mr. Haylow. He reported that his mental health due to lockdowns from the pandemic contributed to the offences, and he felt that he had been being racially profiled by Mr. Haylow.

[20] Dr. Hanna Meng met with Mr. Archibald in January of 2024 to complete the MHA report. Mr. Archibald did not exhibit any overt thought disorder, but there was evidence of underlying conceptual disorganization in his narrative of more recent events, including these offences. His thought content was significant for prominent paranoid, referential and persecutory themes. He described an elaborate scheme of persecution and monitoring since 2019, including by his upstairs neighbours (which is what led to the confrontation that caused Mr. Haylow to attend his apartment). The persecution included noises from upstairs at the same time as he was watching videos about insulting behaviour, and he came to believe the two were related and that he must be under surveillance. This harassment had followed him for several years, and even continued when he was incarcerated after his arrest for these offences.

[21] He had attended at the Centre for Addiction and Mental Health ("CAMH") emergency department on November 1, 2023, asking for a full psychological assessment. He had provided similar reports with respect to the belief he was the subject of elaborate persecution and harassment. There was some concern that he was exhibiting psychotic symptoms; he was encouraged to abstain from the use of marijuana.

[22] He maintained that the assaults on William and Tracey Haylow had been self-defence. He detailed their involvement in attempts to embarrass him and his mother since they had moved into the building. On the day of the assaults, his upstairs neighbour set him up and videotaped his responses to her banging above him. He provided conflicting versions of his thought content and motivations during the incidents leading to the assault and the assault itself.

[23] His belief of persecution has continued after being released from custody and moving to a new building. He described an elaborate system in which his persecutors would cough while passing him on the street to identify themselves and let him know he was still being watched. He expressed having problems with persons in positions of power like police and landlords, and attributed this to his abusive father. He noted he had continued cannabis usage, but would cut down if someone could explain why to him.

[24] Dr. Meng reported that Mr. Archibald's clinical course and current functioning are most in keeping with a diagnosis of Delusional Disorder (persecutory type). Although his psychosis was unlikely to be substance-induced in nature, cannabis use likely exacerbated symptoms. His history of interpersonal distrust and possible hostile misattribution may have informed the paranoid and persecutory nature of his thought system. He is able to factually describe that his beliefs seem paranoid or improbable, but he does not appear to accept that these experiences may arise from a treatable illness, and he rejected the need for pharmacological intervention.

[25] Dr. Meng recommended: (1) Psychiatric care and treatment including a combination of antipsychotic medication and psychotherapeutic interventions; (2) Abstaining from cannabis use; (3) Psychological interventions targeting self-regulation, anger management, skills-based problem solving, effective communication, and conflict resolution; and, (4) Continued vocational pursuits.

Applicable Sentencing Principles

[26] Section 718.1 of the Criminal Code of Canada (“Code”) states that the fundamental principle of sentencing is proportionality. To be a fit sentence the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[27] Ss. 718.01 and 718.2 of the Code set out a number of other considerations:

718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services, shall be deemed to be aggravating circumstances. (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[28] Aggravated assault is punishable by a maximum sentence of imprisonment of 14 years. This is the second highest maximum sentence available, suggesting that aggravated assault is, or at least can be, a very serious offence: R. v. Friesen, 2020 SCC 9, at paras. 96-97. In addition to all of the principles of sentencing, deterrence and denunciation play a predominant role in sentencing for serious, violent crime.

[29] Other aggravating and mitigating factors and the offender’s personal circumstances must also be considered. This includes a consideration of the involvement of Mr. Archibald's mental health issues. In order for mental illness to be considered a mitigating factor, it must be “an underlying reason” for the conduct (R. v. Prioriello, 2012 ONCA 63). Where a “demonstrated link” exists between an offence and a mental health issue, the sentence may be reduced (R. v. A.C.K.T., 2015 ONSC 1169, at para. 24).

[30] The range of sentence for aggravated assault has been recognized to be so broad that the cases are more useful in providing circumstances and considerations to assist in applying the principle of parity than as setting a specific range: R. v. Navarathinam, 2021 ONSC 4241, at para. 29, aff'd 2022 ONCA 377. In Navarathinam, Roberts J. followed the approach summarized by Code J. in R. v. Tourville, 2011 ONSC 1677 (which has been repeatedly upheld by the Ontario Court of Appeal, see: R. v. Jones, 2013 ONCA 245; R. v. Pomanti, 2017 ONCA 48; R. v. Randhawa, 2020 ONCA 668) in determining that a fit sentence for that offender was one of four-years jail.

[31] In Tourville, Code J. categorized the cases and their factual considerations into three groups:

[27] At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems…

[28] In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 175 C.C.C. (3d) 440 (Ont. C.A.)…

[30] At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A).

[32] The combination of Code s. 719(3) and R. v. Summers, 2014 SCC 26, entitles offenders to a maximum credit of 1.5 days per real day of custody. Mr. Archibald served 95 days of pre-sentence custody (“PSC”) before being released on bail; therefore, any jail sentence imposed is to be reduced by 143 days.

[33] In R. v. Duncan, 2016 ONCA 754, the Court stated at para 6:

[…] in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[34] In R. v. Marshall #1, 2021 ONCA 344, Doherty J.A. clarified how harsh presentence incarcerations conditions should be treated.

[50]: … “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.

[52] The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[53] Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed […]

[35] Finally, as to a CSO, it is available if: (1) I impose a sentence of less than two years incarceration; (2) I am satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing; (3) There is no minimum punishment prescribed; and, (4) The offence does not fall into limited specific offences (which, these offences do not).

Analysis

[36] There are a number of aggravating features in this case: (1) Vulnerability: Mr. Archibald attacked Mr. Haylow, without provocation, from behind and catching him unable to defend himself; (2) Viciousness of the attack: using his fists, Mr. Archibald fractured 11 different bones in Mr. Haylow's face. This was a vicious assault that rendered Mr. Haylow unconscious; (3) Impact: the significant physical, cognitive and psychological trauma suffered by Mr. Haylow is aggravating. Mr. Haylow may never fully recover. The quality of his life is significantly decreased; (4) Interference with rendering aid: Mr. Archibald was prevented from continuing his assault by Mrs. Haylow's arrival. When she tried to call for assistance, he took her phone and smashed it. This is an aggravating feature; and, (5) Criminal record: Mr. Archibald is a repeat offender with prior treatment related to assaultive behaviour, although I place less emphasis on this factor than the others, given the gap in his record.

[37] There are also several mitigating factors: (1) Harsh PSC: 11 days of his PSC were spent in segregation following an incident in which Mr. Archibald was pepper-sprayed while in custody. I heard evidence of this in the course of an application for a stay of proceedings. While I did not find that Mr. Archibald’s Charter rights were breached, I did have concerns about some of the actions of the custodial authorities. It is also important to note that the incident came to occur, at least in part, due to a security classification that resulted in restrictions on Mr. Archibald’s movements, and for which I heard no justification in the evidence. I also heard from Mr. Archibald of the effect of the PSC on him and have evidence of Mr. Archibald’s mental health, which would have contributed to the harsher impact of this PSC. I am of the view that mitigation for this harsh PSC is appropriate. (2) Mental Health Considerations: in my view, Mr. Archibald's delusional disorder contributed to these offences. While not excusing his conduct, it does go some way to explaining it, and lessens his moral blameworthiness. In addition, the delusional disorder and his difficulties with authority will make time in custody more difficult for him. (3) Mr. Archibald's background and the domestic abuse he witnessed and suffered: this was a contributing factor to his difficulties with authority figures; and, (4) He has strong support from his mother and rehabilitative potential, as shown in his prior community supervision. This rehabilitative potential is somewhat tempered by his delusional ideation. While I accept that he feels badly for Mr. Haylow’s injuries, Mr. Archibald’s perception of his limited role in causing the injuries causes me some concern about his prospects for rehabilitation. His self-image as a victim both before and after the assaults is concerning.

[38] Both counsel provided sentencing authorities to help support their positions. The Crown relies on: (1) R. v. Navarathinam, 2021 ONSC 4241, aff'd 2022 ONCA 377: the accused used a meat cleaver causing a slash to the victim's cheek and head. The victim was made vulnerable by two men chasing him and intoxication. The accused had a prior record, including assault and assault with a weapon. Mitigating features included harsh PSC, time spent on restrictive bail conditions, and personal circumstances and collateral consequences. The sentence imposed was four-years jail less PSC; (2) R. v. Silva, 2016 ONSC 2254: the accused used a machete for a vicious attack from behind, with evidence of premeditation. The victim suffered permanent scarring to his head and hand, and psychological trauma, but otherwise recovered. The accused had a dated prior record for four convictions, two of which were assaults. He had a positive PSR and a solid employment record. The sentence imposed was four-years jail; (3) R. v. Haly, 2012 ONSC 2302: the accused repeatedly stabbed the manager of a gym with a hunting knife while he was working out. Others intervened, preventing the attack from continuing. All the wounds were soft tissue injuries but took months to heal and had significant emotional impact on the victim. The attack was unprovoked. The accused was only 28-years old and did not have a criminal record. He suffered from depression and substance abuse. A four-and-a-half-year jail sentence was imposed; (4) R. v. Helpert, 2013 ONSC 7469: the accused attacked a stranger with a machete after she commented on his parking. Fortunately, most of the blow was absorbed by the wall behind the victim, but it still caused a six-inch wound to her head, which took months to heal, caused her to miss work, and caused serious depression. The accused was intoxicated by alcohol and medication at the time, but retrieved the weapon to carry out the assault so it was not entirely spontaneous. He was 63 at the time of sentencing with a prior conviction for impaired driving. He suffered from depression and anxiety and chronic pain. He immediately acknowledged his wrong-doing and expressed remorse. The sentence imposed was three-years jail.

[39] The Defence relied on several other authorities: (1) R. v. Pomanti, 2017 ONCA 48: the victim had broken into the accused's home. The victim bear sprayed the accused, who, along with two others, then prevented the victim's escape and then struck him with a shovel causing unconsciousness and significant injuries. The trial judge found he had not acted in self-defence but rather to exact revenge. A sentence of 22-months jail was imposed; (2) R. v. N.F., 2015 ONCA 51: the Court of Appeal upheld a sentence of 20-months jail and 3-years probation. The victim was the 10-year old child of the accused, who caused burns from a hot iron as a form of discipline; (3) R. v. Tourville, 2011 ONSC 1677: the accused caused nine injuries to the victim with a knife during what had begun as a fight. The altercation had some elements of escalation on both sides. The offender was a relatively young first offender from a very difficult background, involving childhood abuse, alcoholism and prescription drug abuse who had made recent efforts to reform himself. He was indigenous and interested in restorative justice programs related to his heritage which were available with a reformatory sentence. There had also been restrictive bail conditions. The sentence was 21-months jail and two-years probation.

[40] The cases relied on by the Crown involve the use of a weapon as an additional aggravating feature. The cases relied on by the Defence feature elements of the use of excessive force in response, which is not the case with Mr. Archibald's assault of Mr. Haylow. Nonetheless, they do assist me in situating Mr. Archibald's case among other sentences for aggravated assault.

[41] Mr. Archibald approached Mr. Haylow from behind, caught him unaware, and caused serious injury to his face, neck and upper chest with his fists. He did not use a weapon, but he caught Mr. Haylow while he was vulnerable. While Mr. Haylow had confronted Mr. Archibald about his behaviour, this is not a case where Mr. Archibald could be said to be responding excessively to aggression or escalation. It was an unprovoked attack. The effect of the assault on Mr. Haylow was significant and will stay with him for the rest of his life. Mr. Archibald further interfered with Tracey Haylow's attempts to get aid for her husband.

[42] In my view, balancing the mitigating and aggravating features that I have outlined, a penitentiary sentence is required to give proper effect to the principles of sentencing, including denunciation, deterrence, rehabilitation, and restraint. An appropriate total sentence in this case is one of three-years incarceration.

[43] As I am of the view that a three-year penitentiary sentence is required, a CSO is not an available sentence.

Sentence

[44] The total sentence will be one of three-years jail, less credit for PSC. To properly reflect the principle of totality, in accordance with R. v. Ahmed, 2017 ONCA 76 and R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.), the sentence will be recorded as: (1) On the count of aggravated assault, three-years jail less credit for 145 days PSC, leaving 950 days to be served; (2) On the counts of assault, mischief and theft, 45-days jail, concurrent to each other and count one.

Ancillary Orders

[45] The Crown seeks ancillary orders which were not opposed.

[46] Pursuant to Code s. 109, Dean Archibald is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years after his release from custody.

[47] DNA: aggravated assault is a primary designated offence for the purposes of the DNA provisions. Dean Archibald is ordered to provide such samples of his bodily substances as are reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act in relation to these charges.

Released: May 15, 2024 Signed: Justice R. Wright