R. v. McLellan, 2024 ONCJ 689
Date: July 23, 2024 Information No.: 4810-998-22-70008059
Ontario Court of Justice
His Majesty the King
-v-
Matthew McLellan
Reasons for Sentence
Before The Honourable Justice H. Amarshi On: July 23, 2024, at Toronto, Ontario
Appearances: S. Duffey, Counsel for the Provincial Crown S. Cowan, Counsel for M. McLellan
Amarshi, J. (Orally)
Good morning, sir. Matthew McLellan has pled guilty to one count of aggravated assault. He attacked a homeless man while he was sleeping. The attack was seemingly random, did not know the victim. Three days before he slashed the face of another man, again the attack was random.
The crown proceeded by indictment. The plea before me proceeded by way of an agreed statement of facts, which was filed as an exhibit at the sentencing hearing.
Two victim impact statements were filed along with photos of the injuries sustained by one of the victims. In addition, the defence filed a psychiatric assessment, it was fulsome and detailed.
The Crown is seeking a two- and half-year sentence, citing the aggravating features of this offence, including the vulnerability of the victims, the defence submits a long conditional sentence can adequately engage the applicable sentencing principles in the case.
In the alternative, the defence suggests that if this Court deems jail to be an appropriate sentence, that it considers imposing a twelve-month reformatory sentence.
Defence also seeks that I consider and apply R. v. Downes, 2006 ONCA 3957, credit in consideration of the one and a half years that Mr. McLellan has been on a strict bail.
Circumstances of the Offence
Briefly, on Friday, December 9th, 2022, at approximately 7:25 A.M., Samuel Brushett, which is B-R-U-S-H-E-T-T, was at the underpass at Victoria Street and Dundas Street East. While at the underpass, Matthew McLellan approached the victim from behind and unprovoked, slashed Mr. Brushett in the face, with a knife, leaving a significant cut on the victim’s right cheek.
The offender then fled the area on foot, southbound on Yonge Street. The victim was taken to hospital. A witness at the nearby Bond Place Hotel, notified police of the incident.
Two days later, on December 11th, 2022, at 6:10 A.M. in the morning, Scott MacMillan, M-A-C-M-I-L-L-A-N, was sleeping on a sidewalk grate in front of a GoodLife Fitness, located at 137 Yonge Street. The victim woke up to Mr. McLellan slashing him in the face with a knife. The offender then fled the area, running northbound on Yonge Street.
Mr. MacMillan attended St. Michael’s Hospital where staff contacted police. That victim sustained a large wound to the right side of his face from his temple to his chin. He was bandaged by medical staff at the hospital but refused to allow them to administer stiches.
Police began an investigation which centered on a video canvass following the suspect from location of the assaults, travelling on foot to 35 Church Street. Police reviewed video at 35 Church Street and located the offender inside his condominium, after a security guard in the building identified Mr. McLellan as a suspect based on the CCTV footage.
Mr. McLellan was charged accordingly.
Mr. Brushett sustained a large wound to the right side of his face, which was photographed. Mr. MacMillan sustained a large wound to the right side of his face from his temple, as I noted, to his chin and as I noted, the injury was not photographed because Mr. MacMillan did not want to remove his bandage.
Circumstances of the Offender
Mr. McLellan is 22 years old; he is single and currently lives in Bayfield Ontario with his parents who are semi-retired. He works part time at the Bayfield Community Center, cleaning and mopping. At the time of the offences, he was living at his parents’ condominium on Church Street with two friends.
Mr. McLellan grew up in Toronto. At thirteen months he was adopted. His life circumstances at infancy were difficult as the mother abandoned him at hospital, she may have had a drug addiction.
He spent the first year of his life in foster care. He reports a happy childhood with a positive relationship with his adoptive parents. He has limited education, having stopped going to school in Grade 7.
The defence provided a comprehensive assessment report in place of a pre-sentence report. That report was completed by Dr. Hy Bloom, a forensic psychiatrist and assistant professor at the University of Toronto Faculty of Medicine. The report is detailed and objective. I placed weight on Dr. Bloom’s conclusions.
Of note, Mr. McLellan was particularly candid in his discussions with Dr. Bloom.
Dr. Bloom detected no signs, as he put it, of a behavioural abnormality. He describes the offender as an intelligent man with a capacity for introspection. He concluded Mr. McLellan has normal cognitive functioning. According to the assessment, the offender has few friends and described himself as a loner. He is currently on anti-ADHD medication.
Mr. McLellan denied having any violent tendencies, acknowledged anger-management issues but say they were confined to the time he was a teenager. He told Dr. Bloom that he did not have an understanding as to why he assaulted the victims, he admitted to having, “Issues with homeless people, there’s thousands of them where I live.” That he was progressively fed-up with them begging all the time.
He admitted to drinking everyday, especially when he was a teenager but says that he has pared back his consumption. He described extensive marijuana use but does not see marijuana as a problem. He admits his parents and friends have told him to cut back on his alcohol and drug use.
When asked about the incident on December 9, 2022, the offender said he drank two beers and smoked marijuana, that he was a little tipsy. He believes his consumption of these substances helped him commit the offences. He described the first incident, that he was walking in the Dundas Square area when he observed a male on the street, he believed was smoking crystal methamphetamine.
He circled around the victim, slashed him on the right cheek and walked away. When asked about his emotional state at the time, he said he felt, “Powerful, like I could hurt somebody if I wanted and then I felt excited, not joy, but a rush from the heart, like adrenaline.” Said he was angry when he committed the offence but when he got home, he felt fine.
A week prior to the December 11, 2022, incident he said he had encountered the victim, he said urinated close to him, that he held a grudge as a result. On December 11, 2022, Mr. McLellan was walking in the area of GoodLife on Yonge Street, when he saw the victim and slashed him.
The offender knew he was being recorded on video, threw the knife down a sewer drain, it was the same knife he had used during the first assault, he went home.
Dr. Bloom concluded that despite this recounting, that Mr. McLellan was not revelling what he had done, further, he had showed some insight into his actions and the offender agreed his conduct was not normal.
Mr. McLellan told the doctor that there were, in his words, a “zero chance” he would do something like this again, not only because he accepted it was wrong, but because of how much these incidents have hurt his parents. He further stated that he had no interest in committing such offences in the future.
Of concern, Mr. McLellan admitted to the doctor that he had inflicted similar injuries on homeless people prior to December 2022 but provided no additional details.
The motivations for his actions remain a mystery. There is no real explanation for his actions. Dr. Bloom posits by way of a working hypothesis that there is a link between Mr. McLellan’s experience of abandonment by his biological mother and his bias against homeless people which may be a contributing factor to his dislike and anger towards the homeless.
In terms of his medical history, Mr. McLellan has had contact with mental health professionals in the past to treat social anxiety and ADHD. He denied to Dr. Bloom experiencing any delusions, paranoia or psychosis and says when he smokes a lot of marijuana he does hear voices.
As a child and adolescent Mr. McLellan saw various professionals including a speech pathologist, a psychologist, a pediatrician, a psychiatrist and a guidance counsellor. He was formally diagnosed with ADHD as well as having learning deficits. School avoidance was a primary concern and is reflective of his limited schooling.
The assessment makes various mention of the offender’s parents with the conclusion that they are loving and supportive, albeit with some challenges in the child/parent relationship. They do not see any changes in Mr. McLellan’s behaviour prior to December 2022.
Dr. Bloom spoke to a friend of the offender who stated he thought Mr. McLellan was severely addicted to alcohol and marijuana.
Mr. McLellan recognizes he has multiple flaws. Dr. Bloom posits that he has a fear of abandonment based on his experience in infancy that may have impacted the psychological development. He continues to suffer from social anxiety and has limited educational achievements. On a positive note, he has developed an interest in history and is knowledgeable.
Dr. Bloom concludes that Mr. McLellan has unresolved feelings of anger and self-loathing, that he has projected to other individuals and groups. Further, that he suffers from a substance abuse disorder namely alcohol and marijuana, although now largely curtailed as a result of these criminal charges.
The doctor believes an argument could be made for a more severe diagnosis of paranoid and schizoid, but he did not make that diagnosis.
In terms of future risk of reoffence, that has been a difficult determination in this case. According to the doctor, Mr. McLellan’s risk for criminal and violent recidivism is difficult to read with confidence given his unique history.
He concludes however, that he would benefit from concerted and enduring psychotherapy by a trauma informed clinician and that he requires sustained therapy to address, among other things, anger-management and substance use prevention.
He further states that the offender be under psychiatric supervision for the foreseeable future to manage medications and other mental health issues and that he needs meaningful structure in his life.
By way of a summary of his conclusions, Dr. Bloom says the following:
In summary, Matthew McLellan is a 22-year-old, single, unemployed gentleman faces markedly serious charges in respect of his unprovoked assaults on two homeless individuals.
Mr. McLellan has accepted the responsibility for his acts and appears to experience a degree of remorse albeit he himself recognizes that there are deficiencies in his capacity for remorse and empathy, an observation that certainly accords with my view.
And further,
I believe that Mr. McLellan entirely understands at a cognitive level and how far below an appropriate standard of conduct his actions were but a further appreciation of the gravity of his conduct may not be fully within his reach at present due to unresolved emotional and psychological conflicts and constructs that I strongly suspect have been gathering force over the last number of years and which, in my opinion, found expression in the behaviours in question.
That is directly from the report.
Victim Impact Statement
Samuel Brushett, the victim of the December 9th attack - he provided a victim impact statement to the officer in charge in this case.
He had said that he was shocked by the incident, that it was close to his jugular, that his injuries took one month to heal, that the attack came out of the blue, that there was no provocation.
He does not feel safe in the area where the assault occurred. He further says that there has been no emotional aftermath.
A photo of Mr. Brushett’s injuries were filed as part of the agreed statement of fact. The wound is deep and runs almost the entirety of the right side of his face below his jawbone.
Mr. Brushett looks disheveled, and it is not disputed that both victims were homeless at the time of the attack.
Scott MacMillan is the victim of the December 11th aggravated assault and said following as part of his victim impact, which was brief. His scar has not healed, that he is disappointed with how little the scar has healed over the long run.
Further stated that the attack did not affect him in a physical way only in an aesthetic way and that he did not want the matter prosecuted.
Position of the Parties
Crown is seeking a two-and-a-half-year jail sentence, that this proposed sentence meaningfully engages the relevant sentencing principles in this case, that this Court must emphasize denunciation and deterrence in consideration of a fit sentence.
Crown references a number of aggravating features, including the fact that there were multiple victims, that the offender has formerly accepted having committed two substantially similar offences over a short period of time, Ms Duffey argues the impact on the victims should be a significant consideration.
I accept that submission.
She points out that although both victims have reported no loss of sensation nor a loss of mobility, there are lasting injuries and disfigurement such that it can impact the ability of the victims to form romantic relationships and limit employment prospects.
Crown further notes that one of the victims was sleeping at the time of the attack and was, as result, in a particularly vulnerable position. She relies on R. v. Arcand, 2010 ABCA 8363. Again, I accept that submission of increased vulnerability.
Ms Duffey argues that the offender was motivated by a bias against a vulnerable group, namely the homeless population.
Defence Position
Defence submits that an 18-month conditional sentence is an appropriate disposition. In the alternative, if the Court concludes a sentence is to be served and community is not a fit sentence, a 12-month period of custody is to be considered.
Mr. Cowan is seeking credit in the range of six months to reflect what he says are particularly strict bail conditions over a one-and-a-half-year period which includes a house-arrest bail and GPS monitoring. Mr. McLellan was to be in the company of one of his sureties when he left his home.
The Defence submits that the offence can be characterised as having elements of impulsivity as opposed to a deliberate campaign against a certain group. He concedes that Mr. McLellan’s motivations for the attack are a bit of a mystery, that there are prospects for rehabilitation given that there has been no finding of unmanageable addiction or major mental illness.
Mr. Cowan argues that the Court focus on specific deterrence because he submits the report suggest traditional methods of social control are effective mitigators and that Mr. McLellan has been embarrassed by his actions and the impact it had on his parents.
The Defence points out two positive elements that have occurred since these charges including the fact that Mr. McLellan has been volunteering at a cat shelter and a food bank and further, the fact that he’s abided by his bail conditions further suggests that there are meaningful prospects for rehabilitation.
Sentencing Principles
Section 718 of the Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to the respect for the law, and help maintain a just, peaceful and safe society. Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparations to victims of crime, and prompting a sense of responsibility in offenders and an acknowledgement of the harms they have caused a community and specific victims in our community.
A fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and to the degree of the responsibility of the offender. This is achieved by identifying and considering the aggravating and mitigating factors and circumstances of the offence and the offender, bearing in mind the established principles of sentencing including those set out in Section 718.2 of the Criminal Code.
In addition, the Court must always be mindful of the principle of restraint, impact on any victim must also be considered. It is in this context, in considering these principles, goals, objectives and factors, that the Court determines a fit sentence that will best achieve the sentencing objectives and is similar to sentences imposed in similar cases. Those sentencing principles are summarized in a case called R. v. Casselman, 2014 ONCJ 198 at Paragraph Three.
I further note that sentencing is a highly individualized process, it is driver by the facts of every offence and the unique characteristics of every offender. Sentencing principles must be applied in the unique circumstances of the case. That means that with the sentence I impose to be appropriate and must be tailored to Mr. McLellan’s circumstances and the circumstances of the offences he has committed.
Aggravating and Mitigating Circumstances
As I indicated, the Criminal Code mandates a consideration of any relevant mitigating or aggravating circumstances related to the offence or the offender.
I find the following aggravating factors: Vulnerability of both victims - both Samuel Brushett and Scott MacMillan were homeless, that is not disputed. They sheltered on the streets of downtown Toronto. Crown was quite right to point out that the homeless population often suffer from multiple vulnerabilities.
It is not contentious that homelessness often intersects with poverty, drug-addiction and mental health issues. They are likely contributors to difficult life circumstances.
They were easy, unsuspecting victims for Mr. McLellan, attacked while sleeping in the early morning hours.
Closely connected to this is what I have concluded as a bias towards an identified group. I appreciate there’s no direct application of section 718.2 which codifies as aggravating factors offences motivated by bias based on factors which include for example race, sexual, or religion.
That said, both victims were targeted because of their homeless status. Dr. Bloom’s report is sufficient to satisfy me that there was a preexisting bias towards this group.
The origin of this prejudice is complicated and to a certain extent, unclear. But I accept that there was an underlying animus motivating in part the offender’s violent actions in this case.
I did accept Mr. Cowan’s submission that the violence was chaotic and suggestive of impulsivity. That Mr. McLellan did not set out to attack both victims, that there was a lack of premeditation.
Further aggravating was the violence was random and unprovoked, the risk of injury was significant. Upon review the injury to Mr. Brushett is clear that there could’ve been a far more dire outcome in this case.
Both the victims provided statements on the impact of the attacks, there is no further disfigurement for either victim, or loss of mobility, but I accept there are adverse long-term physical and emotional impacts on these men as a result of the violence.
A number of mitigating factors I have taken into consideration in determination of an appropriate sanction; Mr. McLellan has pled guilty. Although the plea was not at the earliest possibility, I recognize that there was an intention early on in these proceedings for the offender to resolve these charges. The delay in large part relates to the finalization of Dr. Bloom’s assessment.
In pleading guilty both victims are spared from having to testify which is a relevant and important factor, although I note it may have been possible for the Crown in this case to prove at least one of the counts based on surveillance video alone.
By resolving his matter, Mr. McLellan has saved court resources in a busy jurisdiction.
Further, by way of mitigating factors, the offender is young, he is 22 years old. He has no criminal record; restraint is an applicable sentencing principle.
Based on the assessment I accept that Mr. McLellan is remorseful for his actions, understands to a considerable degree the gravity of his offences, understands the impact it has had on his family and his future life circumstances.
I agree with Mr. Cowan’s submission that this is a case where specific deterrence may have a particularly meaningful impact and social control is an effective mitigator of future behaviour.
Mr. McLellan has made some modest efforts at rehabilitation during his time on bail. He is working for the first time in his life and has been consistently volunteering. There has been a reduction in his consumption of marijuana and alcohol.
I should note that there is no evidence before me that substantiates a preexisting and identifiable mental health illness that is active as a contributing factor to these offences.
There is a working hypothesis as to the motivation for these offences, but no declared mental health diagnosis. In other words, there is no causal link that is sufficient to establish a mental health illness as a mitigating factor in sentencing.
Determination of a Fit Sentence
This requires a careful balancing of sentencing principles. The offender’s moral blameworthiness is high, his actions must be denounced. The victims were vulnerable men living on the street. The attacks were senseless and motivations for the attacks remain unclear.
The knife attacks were highly violent, impulsive acts, there is a pattern of violent behaviour over a short period of time. The attacks are similar in nature. The victim’s homeless status are shared characteristics.
I am cautious not to overweight Mr. McLellan’s admission that there were other similar attacks in the period before these offences; that said, these offences cannot be characterised as a one-off occurrence that are out of character. I remain concerned about future harm.
I accept that there are prospects for rehabilitation. Mr. McLellan has made some efforts. There has been a reduction in his use of intoxicating substances. I rely, however, on Dr. Bloom’s conclusion that the offender requires sustained therapy counselling. Mr. McLellan recognizes the wrongfulness of his actions.
The aggravating features of this case require this Court to emphasize denunciation and deterrence. Mr. McLellan has inflicted significant damage on his victims, unsheltered they are highly vulnerable and at a heightened risk for being victims of crime.
I acknowledge that parity is a relevant sentencing principle in case based on the cases brought to my attention during the sentencing hearing. Although I note there are unique features to this matter. The need for restraint given the offender’s young age and lack of criminal record is also a relevant consideration.
I have determined that a custodial sentence is warranted in this case in the upper reformatory range.
Is Conditional Sentence Appropriate
The conditional sentence is not excluded in these circumstances. Further, it can be imposed even in cases involving acts of violence such as aggravated assault, see R. v. Ali, 2022 ONCA 736. A conditional sentence is capable of achieving the objectives of denunciation and deterrence.
There are cases, however, where there are circumstances in which the need for denunciation and deterrence is such that incarceration is the only suitable way to express society’s condemnation of the offender’s conduct. See R. v. Proulx, 2000 SCC 5, at Paragraphs 106 and 107.
In R. v. Macintyre-Syrette, 2018 ONCA 706, at Paragraph 19, the Court of Appeal states the following, Justice Doherty noted in R. v. Killam, Paragraph 13:
A conditional sentence does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.
See also, R. v. Thurairajah, 2008 ONCA 91, at Paragraph 43.
When I consider whether a custodial sentence or one served in the community would better address all the relevant sentencing objectives in this case, which include denunciation and deterrence, and restraint and rehabilitation, I have concluded a custodial sentence is required.
To be clear, Mr. McLellan targeted, albeit impulsively, homeless men with significant acts of violence. I have made a finding that these acts were motivated by a preexisting bias and hate, that there were multiple victims and a pattern of offending behaviour.
The Application of Downes Credit
Defence seeks credit for the period Mr. McLellan was released on restrictive bail conditions pursuant to R v. Downes, 2006 ONCA 3957, 2006, O.J. No. 555, it is an Ontario Court of Appeal decision. Time spent under stringent bail conditions must be taken into account by the sentencing judge as a relevant, mitigating factor on sentencing.
When an offender seeks credit for stringent bail conditions, the focus of the inquiry is on the impact of the conditions on the offender and whether they were punitive enough to be akin to punishment. The amount of credit to give is within the sentencing judge’s discretion.
Parties are not far apart in terms of the quantum of credit that should be applied. The defence submitting six months is appropriate. Ms Duffey fairly suggested a four-month reduction in sentence is warranted, albeit she notes the impact of the strict bail conditions on Mr. McLellan is somewhat attenuated given the fact that the offender was casually working and has few, if any, social contacts.
I accept that the house arrest bail does impose personal hardships and can sufficiently restrict an accused’s liberties such that some credit is warranted. In this case the house arrest was supplemented by GPS monitoring.
Parties agree that Mr. McLellan served fourteen days in pretrial custody. I determined that the appropriate Downes and Summers (R. v. Summers, 2013 ONCA 147) credit, a combined credit, is six months.
I have concluded that an upper reformatory sentence is required in this case and accordingly, Mr. McLellan is sentenced to a period of custody of 22 months. With the application of the credit I have just referenced, he is to serve an additional six months in custody.
Upon his release from custody Mr. McLellan will be bound by a probation order for two years with the following conditions: Report to a probation officer, in person, within 72-hours of his release from his custody and thereafter at all times as directed by his probation officer.
To abstain from owning, possessing or carrying any weapons.
To have no contact, directly or indirectly – I appreciate he is unlikely to run into these two individuals in the future – but he is to have no contact with Scott MacMillan and Samuel Brushett.
To take counselling as directed by a probation officer, including but not necessarily limited to substance abuse and sign any forms to enable the probation officer to monitor his enrolment and attendance and completion of those programs.
He is to make an appointment within 30 days of his release from custody with a family physician for the purposes of a referral to a psychiatrist. If a referral is provided, Mr. McLellan is to make an appointment with a psychiatrist within 60 days of his release from custody.
There will be a section 109 order for ten years.
DNA sampling is ordered as a primary designated offence for aggravated assault.
The victim fine surcharge is not waived.
THE COURT: I want to thank both Ms Duffey and Mr. Cowan for their thorough and thoughtful submissions in this case. Good luck Mr. McLellan.
M. MCLELLAN: Thank you.
THE COURT: I wish you the best of luck.
Form 3
Electronic Certificate of Transcript (Subsection 5(2)) Evidence Act
I, Lorelei Bonham, certify that this document is a true and accurate transcript of the recording of R. v. Matthew MCLELLAN in the Ontario Court of Justice held at TORONTO, Ontario, July 23, 2024, taken from Digital Recording Number, 4810_1002_20240723_092952__6_AMARSHH, which has been certified in Form l.
Date ACT #8639303749 Ontario, Canada Province of Signing
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.
Date Transcript Ordered: January 27, 2025 Date Transcript Completed: February 2, 2025 Date Submitted for Judicial Review: February 2, 2025 Date Returned from Judicial Review: Date Ordering Party Notified:
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