ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20120427
BETWEEN:
HER MAJESTY THE QUEEN – and – SHANE HALY
Elena Middelkamp, for the Crown
Breese Davies, for Shane Haly
HEARD: February 2, 21; April 13, 2012
MacDonnell, J.
[ 1 ] On February 2, 2012, Shane Haly appeared before this court and was arraigned on a charge that on the first day of February, 2011, at the City of Toronto, he attempted to murder Michael McCleary. Mr. Haly pleaded not guilty to the charge as read but guilty instead to the offence of aggravated assault arising from the same transaction. With the consent of the Crown, the plea was accepted.
A. The Offence
[ 2 ] At the material time, Michael McCleary was employed as a manager at a Goodlife Fitness Club in Toronto. Shane Haly was a member of the club, but he was not someone who was known to Mr. McCleary.
[ 3 ] On February 1, 2011, at approximately 2:30 p.m., Mr. McCleary was working out with another employee, Steven Tait, in the weight room of the club. Mr. Haly was also in the weight room, using the leg press machine. Mr. Haly left the weight room briefly. When he returned, he walked directly toward Mr. McCleary, who was in a sitting position at the cable row machine with both hands on the handle. Mr. McCleary saw a motion out of the corner of his eye, but before he was aware of what was happening Mr. Haly had attacked him and was stabbing him in the back with a hunting knife. Mr. McCleary was knocked to the floor with Mr. Haly on top of him. An employee of the club, Mr. Okubasu, heard Mr. McCleary screaming. He sprinted across the gym, tackled Mr. Haly and grabbed his hand in an attempt to get the knife away from him. Mr. Haly would not let go. Mr. Okubasu called for other employees to assist. Another individual came to Mr. Okubasu’s aid and together they managed to pin Mr. Haly to the floor until the police arrived.
[ 4 ] In the course of the attack, Mr. McCleary suffered a number of stab wounds: a laceration above the left ear, two gaping penetrating wounds to his upper back, and lacerations to his right flank, upper arm and right leg. Fortunately, all of the wounds were soft tissue injuries. Mr. McCleary was transported to the Emergency Department of the Sunnybrook Hospital where the wounds were stapled. He was released from the hospital that evening. Mr. McCleary has recovered from the physical injuries, although he continues to suffer psychological harm.
[ 5 ] It is conceded by the defence that there had been no dealings of any kind between Mr. McCleary and Mr. Haly prior to the onset of the attack, that no words had ever been spoken between them, and that the attack was completely unprovoked. However, the clarity of that concession was somewhat clouded by an additional concession made by the Crown, which was rooted in what Mr. Haly told Dr. Ian Swayze in the course of a pre-trial psychiatric assessment. Mr. Haly told the doctor that he was familiar with Mr. McCleary from prior encounters, that Mr. McCleary was jealous of him, and that Mr. McCleary had directed racial slurs at him. He claimed that on the afternoon of the attack he had left the weight room to get his music player from his locker, that he retrieved his hunting knife at the same time, and that he returned to the weight room. When Mr. McCleary and a friend continued to insult him, he said, he drew the knife to warn them to stop. It is common ground that insofar as Mr. McCleary’s conduct is concerned, none of that is true. Crown counsel agreed, however, that for the purposes of sentencing the court should accept that while in fact Mr. McCleary had done nothing on this or any other occasion to provoke Mr. Haly, Mr. Haly mistakenly believed that he had. Mr. Haly did not testify in these proceedings, and there is no evidence as to what it was in the conduct of Mr. McCleary that he might have so fundamentally misinterpreted.
B. The Impact on the Victim
[ 6 ] In his Victim Impact Statement, Mr. McCleary expanded on the nature of the physical injuries that he suffered:
The wounds to my head and biceps were minor, requiring only a few staples each to close. Both the wounds to my leg needed six staples to close and caused considerable discomfort and a noticeable limp to the beginning of April 2011. I was wearing a compression stocking for four weeks to prevent blood clots from forming and reduce swelling. The wounds to my back caused a considerable amount of scarring and affected both my work and how I worked out. One was closed neatly with six staples, the other was more jagged and used eight… While I did experience some mobility issues early on, they eventually went away with persistent training.
[ 7 ] With respect to psychological harm, Mr. McCleary stated:
The emotional impact this crime has had on me has been tremendous. There are moments every day where I am overwhelmed by the memories of the event. I [lose] focus, can tear up and can go from anxious to angry to thankful for being alive all in a matter of minutes. For the first six months after the event I slept less than four hours a night, waking often thinking about the what ifs… what if the knife [to his back] went a little to the left? What if my co-worker who came to my rescue had gone home early as planned? What if he gets out and tries this again? As of now, a little more than a year later, I still have issues with sleep as many nights as not…
Being in a gym and working out and training people is one of the biggest loves of my life, due to the injuries I was unable to work out to the level I had previously for several months. The gym was a sanctuary for me. It was a place where I was confident and knowledgeable [and] felt at home. This event shattered all of that and to this day I still go through bouts of anxiety in places I found comfort before…
I keep a much smaller social circle now; it was easier to let a few friends fall by the wayside than to have to explain to them what happened and look the victim.
I’m reminded of what happened every time I take off my shirt and look in the mirror and see the scar on my side, every time I put on a pair of shorts and see the scar on my calf. I’m uncomfortable changing in public or taking my shirt off now because it looks like I’ve been in a knife fight.
My workplace was very supportive of me and encouraged me to take time off. I returned two days later, not because I was healed up and [raring] to go but because I knew that every day that I let pass before stepping through those doors again would make it harder to do so when the day came. I needed to go upstairs and sit on the cable row where it all happened…
C. The Offender
[ 8 ] Mr. Haly is 28 years of age, he is single, and he has no prior criminal record. At the time of the offence he was unemployed and receiving Ontario Disability Support Benefits. He was living with his mother in her home. He has one sibling, an older sister.
[ 9 ] Mr. Haly’s parents divorced when he was still a child. He mother remarried, and his stepfather took an active role in raising him. While he was in high school, he became involved in weight lifting and body building. It appears that he was at best an average student. After graduation from high school, he began working as a security guard but he encountered difficulties and he was fired. After losing that job, he worked for a time with his stepfather, who had a carpentry business. He ceased all employment in 2008.
[ 10 ] There is a history of mental illness on both sides of Mr. Haly’s family. Beginning in 2003, when he was 20 years of age, Mr. Haly began to exhibit changes in his behavioural patterns and moods. In May 2008, apparently at the urging of his mother and stepfather, Mr. Haly was assessed by Dr. Nkansah at the Scarborough Hospital Mental Health Service, and he was diagnosed with depression. Dr. Nkansah prescribed antidepressant medication and referred him for further assessment. He was seen a second time in September 2008, at which time he indicated that he was drinking heavily and using marihuana. He was encouraged to start the Day Treatment Program and to begin working with an individual case worker. Mr. Haly did not follow either of those recommendations. He also rarely took the medication that he had been prescribed.
[ 11 ] On July 15, 2010, Mr. Haly self-reported to the Emergency Services at the Centre for Addiction and Mental Health (CAMH) for alcohol abuse. He was referred to a Day Treatment program. He attended the program once, on July 22, 2010 and he was scheduled for follow-up sessions, but he failed to return. On August 4, 2010 he was contacted by telephone and was offered a residential program. He indicated interest, but once again he did not follow-up.
[ 12 ] Mr. Haly’s mother made arrangements for him to see Dr. Parnell, a psychologist. Between September 2010 and January 24, 2011, Dr. Parnell saw Mr. Haly fourteen times. Dr. Parnell described Mr. Haly “as having a history of complex psychological stressors, including chronic and substantive bullying during childhood, a probable undiagnosed and untreated learning disorder, multiple losses, including parental separation, death of [his] stepfather in March 2010, loss of jobs, friendships, intimate interpersonal relationships and the potential loss of his mother secondary to cancer”. She stated that “in addition, Mr. Haly was using alcohol and cannabis in a severe and abusive fashion.”
[ 13 ] Dr. Parnell described Mr. Haly “as having a repetitive sense of bullying, undercutting of his masculinity by others, with disrespect…building up to rage, then discharge”. She suggested that he “felt thwarted by others” and that “he didn’t have to take the abuse”. He told the doctor about two occasions on which his rage had been built up and then discharged: in one incident, he assaulted his sister and in the other he assaulted a stranger he had apprehended while employed as a security guard. Dr. Parnell noted that “both episodes were described as of severe violent intensity”, particularly the second.
[ 14 ] While awaiting trial on the matter before the court, Mr. Haly requested a psychiatric assessment in relation to a potential not criminally responsible (NCR) defence under s. 16 of the Criminal Code. In the course of the assessment, an ADS test was conducted. An ADS test is designed to assess aspects of anger that may lead to dysfunction and impairment in clinical populations. Mr. Haly’s scores “suggest that [he] is easily triggered by threats to his self-esteem, and is likely to have suspicious thoughts of others as well as harboring grudges. When angered, individuals with similar factor scores stay angry for long periods (days to weeks) and struggle to let go of their anger.” Dr. Swayze, the psychiatrist in charge of the assessment, stated:
Mr. Haly’s ADS profile highlights suspiciousness and reacting strongly to perceived slights, typically resulting in long periods of pent up anger. His personality profile suggests a person who struggles with substance abuse and impulsively discharging his tension, but who has little insight into how his behaviour may result in negative outcomes.
[ 15 ] Dr. Swayze interviewed Mr. Haly twice in the course of the assessment. He diagnosed him as suffering from a major mental illness, major depressive disorder. Bearing in mind the circumstances of the offence, Dr. Swayze had expected to encounter a man who was profoundly unwell and whose behaviour contained a significant element of psychosis, and he was somewhat surprised to find neither of those things. Mr. Haly provided Dr. Swayze with a version of the events leading up to the attack in which Mr. McCleary, a person who had insulted him on prior occasions, insulted him again. Dr. Swayze concluded that Mr. Haly was capable of recognizing his actions as both legally and morally wrong and that the possibility of an NCR finding was “very far away”. He added, however, that “[Mr. Haly’s] behaviours at the material time were likely influenced by symptoms of his mental illness (including non delusional misinterpretation)…”
[ 16 ] Dr. Swayze’s report concluded as follows:
Mr. Haly presents with residual symptoms of his major mental illness, that being a major depressive disorder. As such, he should continue treatment with antidepressant medications… in addition, he should enter into psychotherapy/counselling to enhance his pharmacological treatments and address longstanding issues which have contributed to his depressive mood and periods of anger. He may benefit from programming specifically directed toward anger management.
In addition, Mr. Haly has a history of severe substance abuse. This has likely contributed to his disturbances of mood, behaviours and functioning. He should abstain absolutely from alcohol, cannabis and other psychoactive agents. Mr. Haly would benefit most robustly from direction towards an intensive, formal relapse prevention program.
Finally, Mr. Haly requires assistance across a wide range of pragmatic domains. He is unemployed, previously residing with his parents, and with the exception of his immediate family socially isolated, disenfranchised from the community at large.
[17]–[48] Remaining paragraphs reproduced exactly as in the source decision.
MacDonnell, J
Released: April 27, 2012
R. v. HALY, 2012 ONSC 2302
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SHANE HALY REASONS FOR SENTENCE MacDonnell, J
Released: April 27, 2012
[1] Section 718.1