SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
CHARLES HAYHOE
REASONS FOR SENTENCE
REMOTELY BEFORE THE HONOURABLE JUSTICE M. FUERST
on Wednesday, November 4, 2020 for a BRACEBRIDGE, Ontario proceeding.
APPEARANCES:
L. Jeanes
Counsel for the Crown
P. Cooper J. Herbert
Co-Counsel for Mr. Hayhoe
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
EXHIBITS
ENTERED ON PAGE
REASONS FOR SENTENCE
1
Legend
[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.
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WEDNESDAY, NOVEMBER 4, 2020
REASONS FOR SENTENCE
FUERST, J.:(orally)
Introduction
A confrontation between two men who had been friends ended in the tragic death of one, and the arrest of another on a charge of murder.
With Crown consent, Charles Hayhoe pleaded guilty to manslaughter in the death of Mike Earl.
While ordinarily the offence would attract a custodial sentence, the unique circumstances of this case led Crown and defence counsel to jointly request that I impose a sentence to be served in the community.
The Circumstances of the Offence
In 2017, Charles Hayhoe lived with his roommate, Dean Slatter, in an apartment on the second floor of a Huntsville building that was divided into three separate apartments. Gloria and Scott Wood lived in an apartment off the side entrance. Mike Earl and his girlfriend, Tracy Muir, lived in an apartment on the main floor of the building.
Mr. Earl and Mr. Hayhoe were friends who had known one another for years.
On March 17, 2017, Mr. Earl was charged with assaulting Ms. Muir. He was released on a form of bail with conditions that he not communicate directly or indirectly with her and that he stay away from the residence. Nonetheless, he had daily contact with Ms. Muir by phone and text messaging.
During a period of weeks, Ms. Muir told Mr. Earl that Mr. Hayhoe and Mr. Slatter were harassing her, including going into her apartment and letting her cats out, blasting music into her apartment, blocking her doorway with furniture so that she could not leave her apartment, and putting oil in the common area washing machine when she was doing her laundry. She also told Mr. Earl that Mr. Hayhoe sent her sexually explicit messages.
On April 12, 2017, after Ms. Muir again complained about Mr. Hayhoe’s messages to her, Mr. Earl texted Mr. Hayhoe. Mr. Earl wrote that he was going to kick Mr. Hayhoe’s head in and that Mr. Hayhoe was going to get a beating because of the messages sent to Ms. Muir.
The next day, April 13th, Mr. Earl went to a bar after work where he had some drinks. Ms. Muir messaged him, complaining about Mr. Hayhoe and Mr. Slatter again playing loud music. She sent Mr. Earl one of the sexually suggestive messages she received from Mr. Hayhoe. She was angry with Mr. Earl for not sticking up for her with his friends. She belittled Mr. Earl.
Mr. Earl called a female friend, Lana MacDonald, and asked her to come to the bar. She arrived with her sister. Mr. Earl told them about Ms. Muir’s complaints of harassment and the sexually suggestive text messages she received. He asked Ms. MacDonald to drive him to the apartment building so that he could confront Mr. Hayhoe.
Ms. MacDonald dropped her sister off at home. The sister advised Mr. Earl not to go to the apartment building. Ms. MacDonald was hesitant to take him there. He was insistent, and Ms. MacDonald ultimately agreed to drive him.
They arrived at the apartment building around 8:30 p.m. Ms. MacDonald stayed in her car. Mr. Earl went into Ms. Muir’s apartment and spoke with her. Then he went upstairs to the apartment of Mr. Hayhoe and Mr. Slatter.
He knocked on the wall to alert the men that someone was coming up the stairs. This was the usual practice, because there was no door or separate entrance that closed off the apartment from the top of the stairs.
Ms. Muir came out of her apartment. She saw Mr. Slatter stick his head out over the stairwell wall, and Mr. Earl go to the top of the stairs and turn so that he was facing toward the living room. She heard Mr. Earl tell Mr. Hayhoe that he could not talk to Ms. Muir that way, and Mr. Hayhoe respond that Ms. Muir had been texting him sexual messages. That was not true. Ms. Muir began yelling that it was not true.
Ms. Muir went back into her apartment. Then she heard a shuffling or stumbling sound. She went to the foyer area. She found Mr. Earl laying at the bottom of the stairs, with his head on the bottom landing of the stairs and his legs going up the stairway. He was bleeding profusely from his head. He was unresponsive.
Ms. Muir went to the Woods’ apartment and asked Ms. Wood to call 911. Ms. Wood did so. Under the direction of the 911 operator, Ms. Muir and Ms. MacDonald, who had come into the building, commenced CPR on Mr. Earl.
Mr. Hayhoe also called 911. He told the operator that Mr. Earl came into his bedroom and attacked him while he was asleep, so he hit him hard with a bat, and that Mr. Earl was laying at the bottom of the stairs bleeding.
Paramedics arrived at 8:37 p.m. Mr. Earl had no vital signs. He was taken to hospital where he was pronounced dead on arrival.
Mr. Hayhoe told the first officer on scene, “I hit him.” It was evident that Mr. Hayhoe was intoxicated.
Mr. Hayhoe was arrested and charged with assault with a weapon. Officers foundan aluminum baseball bat on the couch in the Hayhoe/Slatter apartment.
Mr. Hayhoe was taken to the police detachment. En route, he said that Mr. Earl had been threatening him for a while, that Mr. Earl was in his bedroom and he “whacked” him. He said, “What was I supposed to do?”
At the detachment, Mr. Hayhoe was charged with second degree murder.
An autopsy determined that the cause of Mr. Earl’s death was blunt force trauma. There was injury to the head. This included a significant “Y” shaped laceration on the left temporoparietal region with a corresponding skull fracture beneath. The pathologist’s opinion was that this would more likely have been caused by a blow with a baseball bat than a fall down the stairs.
Mr. Hayhoe admits that there was a confrontation between him and Mr. Earl, that he hit Mr. Earl with the baseball bat, and that as a result, Mr. Earl fell down the stairs and died.
The Victim Impact Information
Victim Impact Statements were submitted by family members of Mr. Earl, and by Ms. MacDonald. The writers express the pain they continue to suffer from his loss, and the emptiness in their hearts. His two daughters were left fatherless by his death.
The Circumstances of Mr. Hayhoe
Mr. Hayhoe is 46 years old. He had a difficult childhood and left home when he was 16 years old. He did some work in western Canada in the oilfields. He also worked as a carpenter.
Mr. Hayhoe has a previous criminal record for property offences, drinking and driving offences, and a failure to abide by court orders. As his criminal record suggests, he is an alcoholic.
He has two daughters by a former spouse. Prior to his arrest, he shared custody of and saw his children every other weekend. He hopes to repair his relationship with his children going forward.
Mr. Hayhoe has multiple health problems. He has a history of polycystic kidney disease, hypertension, anxiety, and chronic renal failure. He had a cerebral aneurysm that was clipped in 2007. He suffered a mild stroke in 2019.
Of particular importance is that he has another cerebral aneurysm, which is just proximal to that which was clipped. His physician provided a letter stating that any stress, including from incarceration, would raise his blood pressure and put him at risk of rupturing the aneurysm, resulting in death. The physician wrote that incarceration should be avoided for Mr. Hayhoe’s safety.
Mr. Hayhoe spent 287 days in custody before being released on a strict bail. Calculated at one and a half to one, this is 431 days or 14 and a half months. While on bail he completed a 12-step program. He has remained sober.
In court on the sentencing hearing, Mr. Hayhoe apologized to Mr. Earl’s family and friends for the grief and sorrow caused them.
The Positions of the Parties
Crown and defence counsel jointly submit that, after credit of 24 months for presentence custody combined with credit for time on a restrictive bail, Mr. Hayhoe should receive a 20 month conditional sentence of imprisonment. It should include a house arrest condition for the entirety of the term. While they acknowledge the seriousness of the offence, they agree that Mr. Hayhoe’s medical condition is precarious and further incarceration could lead to his death. They rely on the Ontario Court of Appeal decision in R. v. Sharma, 2020 ONCA 478, as authority for the availability of a conditional sentence of imprisonment for an offender convicted of manslaughter.
They also seek a DNA order and a s. 109 weapons prohibition order for life.
The Principles of Sentencing
The objectives of sentencing long recognized at common law are set out in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.
In every case, the determination of a fit sentence is a fact-specific exercise, not a purely mathematical calculation. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6 at Paragraph 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 and 718.2 of the Criminal Code as applied to the facts that led to the conviction.” The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge. See, R. v. Lacasse, 2015 SCC 64 at paragraphs 58 and 143.
Manslaughter is a serious offence because it involves the taking of a life. It ordinarily attracts a lengthy custodial sentence: see, R. v. Head, [1985] O.J. No. 153 (C.A.).
However, a diversity of circumstances will found a conviction for manslaughter, and so the caselaw reflects a wide variation in the range of sentence. The Court of Appeal for Ontario held in R. v. Simcoe, 2002 CanLII 5352 (ON CA), [2002] O.J. No. 884 that identifying the appropriate sentence in a particular case of manslaughter requires the sentencing judge to consider the context in which the manslaughter occurred, meaning the case-specific circumstances of the offence and the offender.
Analysis
There are several aggravating factors in this case. Mr. Hayhoe used a weapon, a baseball bat, to strike another man. That man had been his friend for many years. Alcohol was a factor in Mr. Hayhoe’s behaviour that night, as it had been for some time in his life. He was on notice that he had a drinking problem, yet he left it unaddressed, with tragic results. The chain of events that culminated in Mr. Earl’s death began because Mr. Hayhoe chose to torment Ms. Muir. His treatment of her, most particularly the text messages he sent, was misogynistic and vile. The impact of Mr. Earl’s death on his family and friends, particularly his mother and father who have lost the companionship of and the care provided by their son, is substantial. Regrettably, no sentence that I impose today will restore Mr. Earl to his loved ones.
Yet there are mitigating factors to be weighed. Mr. Hayhoe pleaded guilty, which is a sign of remorse and acceptance of responsibility for his actions. His guilty plea takes on added significance because it was entered during the COVID-19 pandemic, when any savings of court time is important. As Crown counsel acknowledges, there were triable issues in the case, and the outcome of the trial was not certain. Mr. Hayhoe’s criminal record does not include crimes of violence. He has led a prosocial life while on bail, and has family support to assist him going forward.
Most important is Mr. Hayhoe’s precarious medical condition. There is medical evidence before me that he is not a well man. Incarceration could have a devastating impact on him. This is a unique circumstance.
Combined with that is the fact that Mr. Earl’s family supports the resolution jointly proposed by Crown and defence counsel. It provides them with certainty of outcome.
Ordinarily, denunciation and deterrence would require that Mr. Hayhoe be sentenced to serve a period of real jail, in addition to the time credited for presentence custody. But this is an exceptional case.
In light of the Ontario Court of Appeal’s decision in Sharma, I accept that a conditional sentence of imprisonment is available in this case. I am satisfied that Mr. Hayhoe’s 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.
I accept the joint submission put to me by experienced Crown and defence counsel.
Conclusion
Mr. Hayhoe, I credit you with 24 months for presentence custody. That credit is composed of 14 and a half months for the time you spent in custody, calculated at one and a half to one; plus an additional month and a half for particular hardship while in jail because of your medical condition; and a further eight months for the two years and eight months you have been on a restrictive bail.
I sentence you to a conditional sentence of imprisonment of 20 months, which is additional to the 24 months’ credit. The conditions are the statutory conditions plus the following:
Report to a conditional sentence supervisor in person or by telephone within 24 hours and thereafter as required.
For the entire 20 months, house arrest to be in or on the property of your residence at all times, with the following exceptions:
• To meet with your conditional sentence supervisor
• Employment, including any meetings with prospective employers
• Medical and dental appointments of yourself
• Medical emergencies of yourself, your parent, or your child
• To pick up medical prescriptions for yourself
• Counselling appointments
• Religious gatherings
• Visitations with your children on Tuesday evenings and every other weekend
• To obtain the necessaries of life and personal care each Thursday from 4:30 p.m. to 8:30 p.m.
• Any other reason approved by your conditional sentence supervisor in writing in advance as an extraordinary circumstance.
• These exceptions include direct travel to and from the applicable locations.
Not to operate a motor vehicle with a blood alcohol level greater than zero percent.
Not to possess or consume alcohol or drugs other than drugs prescribed for you by a valid medical prescription in your name.
Take such assessment and counselling for substance abuse as your conditional sentence supervisor recommends and not stop it without the supervisor’s written permission obtained in advance.
Sign releases of information so that your progress in counselling can be monitored.
Have no contact direct or indirect with Tracy Muir, Lana MacDonald, or the immediate family of Mike Earl.
Not be within 100 metres of the known place of residence or employment of those persons.
Not attend at 2824 Aspdin Road, Huntsville.
10.Not possess any weapons as defined by the Criminal Code.
11.Seek and maintain employment, subject to medical approval.
Do you understand those conditions, Mr. Hayhoe?
CHARLES HAYHOE: Yes, I do.
THE COURT: Thank you. I make a DNA order and a s. 109 weapons prohibition order for life. Please be aware that if there’s an allegation that you have breached one or more conditions of the conditional sentence of imprisonment, and you are brought back before me for a hearing and I find that you did breach one or more conditions, regardless of your medical situation, I will not hesitate to put you into real jail for whatever the balance of the sentence is. Do you understand me?
CHARLES HAYHOE: Yes, ma’am.
THE COURT: All right. These conditions I expect to be followed to the letter. If you have an issue about what they mean or how you should be governed by them, please raise that with your lawyer.
CHARLES HAYHOE: Yes.
THE COURT: Is there anything, Ms. Jeanes, that needs to be clarified? I tried to track the conditions in accordance with what had been proposed, but maybe I missed something.
MR. COOPER: No, I think Your Honour has covered everything, thank you.
MS. JEANES: Yes, I have nothing further, Your Honour. Thank you.
THE COURT: So, Madam Registrar, while I’m (audio cuts out) going to (indiscernible - overtalking)
MR. HERBERT: Your Honour, if I could just make one clarification?
THE COURT: Yes.
MR. HERBERT: So, we had put Thursdays between 4:30 and 8:30. Mr. Hayhoe is requesting between 12:00 and 4:00.
THE COURT: All right.
MR. HERBERT: He’s hoping that that decreases any likelihood of interacting with people in Huntsville.
THE COURT: Is that agreeable, Ms. Jeanes?
MS. JEANES: Yes it is, Your Honour. Thank you.
THE COURT: So, from 12:00 noon to four o’clock p.m.?
MR. HERBERT: Yes, thank you.
THE COURT: All right. I’ll make that change. So, Madam Registrar, what I’m going to email to you shortly then is an Appendix for Mr. Hayhoe and it’s all of those conditions typed exactly as I read them.
REGISTRAR: Thank you.
THE COURT: So, we don’t run into having a back-and-forth discussion with you, me, and counsel about whether what you’ve prepared tracks what I said.
REGISTRAR: Yes.
THE COURT: This is precisely what I have read from. It just needs to be attached as Appendix A.
REGISTRAR: Okay, perfect.
THE COURT: And I (audio cuts out) right? Now, there are no other counts to be withdrawn.
MS. JEANES: If - if the original...
THE COURT: (indiscernible - overtalking)
MS. JEANES: ...indictment can just be clarified that it was withdrawn? I’m assuming it was, but if not, it should be withdrawn.
REGISTRAR: (indiscernible)
THE COURT: Madam Registrar?
REGISTRAR: I believe it was withdrawn previously, but - yes.
THE COURT: Previous indictment withdrawn at the request of the Crown.
MS. JEANES: Yup, thank you.
THE COURT: And is the other indictment an e-indictment?
REGISTRAR: It does have an e-indictment, yes.
THE COURT: (audio cuts out)
REGISTRAR: So....
THE COURT: All right, so if you could record on that, that’s (audio cuts out) sorry.
REGISTRAR: Sorry, Your Honour. Could you repeat that? I just missed it.
MS. JEANES: (indiscernible - overtalking) e-indictment because of....
THE COURT: No.
REGISTRAR: Sorry, Your Honour. My connection - internet connection’s not working well.
THE COURT: (audio cuts out) is not an e-indictment. So, you can just endorse (audio cuts out)...
REGISTRAR: Oh, god.
THE COURT: ...request of the Crown.
REGISTRAR: Okay.
THE COURT: But the second indictment on which Mr. Hayhoe entered his plea, is that an e-indictment?
REGISTRAR: It is, Your Honour. Yes.
THE COURT: So, if you could - since you’ll have to endorse it for me then since it’s an e-indictment, you just endorse that Mr. Hayhoe was sentenced today; after credit for 24 months for presentence custody and restrictive bail conditions, he is sentenced to a conditional sentence of imprisonment of 20 months with conditions read into the record. There is a DNA order and a s. 109 weapons prohibition order for life.
REGISTRAR: Okay. Yes, Your Honour.
THE COURT: (audio cuts out) I think that takes care of everything. I’ll email that Appendix to you within the next five minutes.
REGISTRAR: Thank you.
THE COURT: All right. Thank you all very much. I appreciate that this was a difficult matter for many reasons and required a great deal of consultation and discussion between Crown and defence counsel and others in the background, and I - I do very much appreciate everyone’s work. Thank you.
MR. COOPER: Thank you, Your Honour. Thank you, Ms. Jeanes.
MR. HERBERT: Thank you, Your Honour. Thank you, Ms. Jeanes.
THE COURT: That concludes today’s proceedings.
MATTER COMPLETED
CERTIFICATION
THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription of the audio recording number 2411_Braceb02_20201104_114301__10_FUERSTM.dcr to the best of my skill, ability, and understanding.
December 17, 2020
Certified Court Reporter Authorized Court Transcriptionist