Court File and Parties

Court File No.: CR-21-70000342-0000 Date: 2025-09-11 Ontario Superior Court of Justice

Between: His Majesty the King – and – Rico Harvey

Counsel: Bev Richards and Corie Langdon, for the Crown Tyler MacDonald, for Rico Harvey

Heard: June 20, 2024

Reasons for Ordering a s. 752.1 Assessment

R.F. Goldstein J.

Background

[1] On April 12, 2024 the jury convicted Mr. Harvey of manslaughter. The Crown applied for an assessment pursuant to s. 752.1 of the Criminal Code. The Crown contemplates making an application to have Mr. Harvey declared a Dangerous Offender ("DO") and Long-term Offender ("LTO"). On June 20, 2024, I granted the application with reasons to follow. These are my reasons.

The Dangerous Offender/Long-term Offender Regime

[2] The DO/LTO regime is found in Part XXIV of the Criminal Code. The process of designating someone a DO or LTO begins with an assessment. The court may order an assessment where there are reasonable grounds to believe that an offender might be found to be a DO or an LTO: Criminal Code, s. 75.1(1). The offender must be convicted of a serious personal injury offence. There is no doubt that by killing Mr. Elie and being convicted of manslaughter, Mr. Harvey committed a serious personal injury offence.

[3] The court shall find – the language is imperative – that someone is a DO if it is satisfied that the offender has been convicted of a serious personal injury offence (as Mr. Harvey has) and that he is a threat to the life, safety, or physical or mental well-being of other persons, based on one of these three criteria set out in s. 753(1)(a):

• The evidence establishes a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing death or injury to others or inflicting severe psychological injury to others through failure in the future to restrain his behaviour (s. 753(1)(a)(i)); or

• The evidence establishes a pattern of persistent aggressive behaviour showing a substantial degree of indifference to the reasonably foreseeable consequences of his behaviour (s. 753(1)(a)(ii)); or

• Evidence establishing any behaviour for which he has been convicted that is so brutal that it compels the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint (s. 753(1)(a)(iii)).

[4] Section 753(1)(1.1) of the Criminal Code deals with certain repeat offenders and s. 753(1)(b) deals with sexual offenders. Neither applies to Mr. Harvey.

[5] The Crown relies on s. 753(1)(a)(iii) of the Criminal Code as the basis for a potential finding that Mr. Harvey is a DO or LTO.

The Key Issue

[6] The key issue on this application, therefore, is whether there are reasonable grounds to believe that Mr. Harvey's behaviour in killing Mr. Elie was so brutal that I am compelled to conclude that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.

Defence Submissions

[7] Mr. MacDonald concedes that the killing of Mr. Elie was brutal, but he argues that one must look beyond just the admittedly-shocking video and consider the entire context. He argues that Mr. Harvey was responding to provocative and racist language. As well, he was not taking his medication at the time. He has been taking his medication since he has been in custody. He has had no significant institutional problems in jail – no conflict or assaults with other prisoners, for example. He has shown that he can control his behaviour while he is taking his medication. The evidence shows that his mental illness can be treated with counselling and medication. Therefore, there is no basis to find reasonable grounds that Mr. Harvey might be declared a DO or an LTO.

Court's Analysis

[8] I respectfully disagree. I find that there are reasonable grounds to believe that Mr. Harvey might be found to be a DO or LTO.

The Threshold for Assessment

[9] The threshold to order an assessment is quite low: R. v. McArthur, [1997] O.J. No. 5146 (Gen.Div.) at para. 20. In R. v. Naess, [2005] O.J. No. 936 (Sup.Ct.) Hill J. reviewed the cases and adopted the following language at para. 77:

I am inclined to the view that s. 752.1(1) obliges the court, on the totality of the circumstances, to determine whether reasonable grounds exist, in the sense of a real possibility the accused will be found to be a dangerous offender. As minimal as the standard is, it is something more than simply any possibility or a remote prospect only. The intrusion of the assessment frequently with prolonged custody, and its availability to the Crown in sentencing (s. 752.1(2)), demands nothing less.

Brutality of the Conduct

[10] When I examine whether there is a real possibility that Mr. Harvey will be found to be a DO I find that his behaviour meets the test. "Stark horror" is not required. Behaviour that is coarse, savage, and cruel will suffice: R. v. Langevin, 45 O.R. (2d) 705, 11 C.C.C. (3d) 336 (Ont.C.A.) at paras. 33-34. A review of the video shows that Mr. Harvey's behaviour was indeed coarse, savage, and cruel. It was brutal by any definition. He sucker-punched Mr. Elie from behind. He stomped on Mr. Elie's head. He beat him savagely in the head with a fire extinguisher. When Mr. Harvey came back to the laundry room after encountering another tenant, he continued the savage beating of Mr. Elie. He again struck Mr. Elie forcefully in the head, as well as the torso. It was a shocking beating. It showed that Mr. Harvey is capable of tremendous violence. It is true that the jury came back with a manslaughter verdict. In my respectful view, and bearing Dr. Pomachelik's evidence in mind, it was a manslaughter that was as close to being murder as manslaughter can get.

Mental Illness and Institutional Control

[11] For the purposes of this application, I reject the argument that the context includes Mr. Harvey's ability to control his mental illness. It is true that Mr. Harvey has been controlled in an institutional setting. He has taken his medication. He is calmer and presents much better. But the point is that he is in an institutional setting. He is monitored. His medication is dispensed directly to him. He regularly sees medical personnel who monitor him. Mr. Harvey has a long history of being unable to follow his medication regime when he is out of custody. Respectfully, there are reasonable grounds to believe that in an unmonitored non-institutional setting he would cease taking his medication. Indeed, he explained that when he was homeless, he felt safer when he did not take his medication. He testified that he believed the medication slowed his reaction times. He also testified that he believed that the medication suppressed his ability to apprehend danger. He testified that being homeless is extremely dangerous, which, of course, it is. From his point of view not taking his medication was a rational response to homelessness.

The Provocation Defence

[12] I also reject the argument that the jury found that Mr. Harvey met the elements to apply the defence of provocation. I left two routes open to a verdict of manslaughter. If the jury found that Mr. Harvey lacked the intention required for murder, the jury was required to find Mr. Harvey guilty of manslaughter. If, on the other hand, the jury found that Mr. Harvey did have the requisite intention required for murder, they had to go on to determine whether the defence of provocation applied. The jury was not required to agree on the route to the verdict, only on the verdict itself. In other words, some jurors could have found that Mr. Harvey did not have the requisite intention to commit murder, and others could have found that the defence of provocation applied.

[13] It is not clear-cut what the jury decided. I am bound by the express and implied findings of the jury. At a sentencing hearing I must determine the facts necessary for sentencing. Where the factual implications of the jury's verdict are unclear, I must make my own findings as disclosed by the evidence at trial: R. v. Ferguson, 2008 SCC 6 at paras. 16-18.

Credibility Findings

[14] I did find that there was an air of reality to the defence of provocation. Meeting the low threshold of simply leaving the defence with the jury does not compel me to conclude that the jury accepted it. On the contrary, finding that Mr. Harvey was provoked requires accepting his evidence – and only his evidence – that Mr. Elie made a racial slur that caused Mr. Harvey to lose control. A trier of fact may accept some, none, or all the evidence of an accused person. I found Mr. Harvey to be entirely incredible on this point. Mr. Harvey testified that Mr. Elie's use of a racial epithet caused him to lose control – but he also testified that it was a racial epithet that he had heard many times in the past. I also find it noteworthy that in the immediate aftermath of the initial attack on Mr. Elie he told Rohina Rawan that he had been jumped by a white man. He did not mention a racial epithet. As well, what he told her was an obvious lie: it was Mr. Harvey who "jumped" Mr. Elie – he sucker-punched Mr. Elie from behind, not the other way around. After the conversation with Ms. Rawan, he went back to Mr. Elie and continued the assault. After the assault, Mr. Harvey told paramedics Brennan Fraser and Lance Valenzola that he had been in a motor vehicle accident. He did not mention a racial epithet. He also did not mention a racial epithet to Dr. Himmel, the physician who saw him at Michael Garron Hospital. Of course, he did not mention the assault on Mr. Elie at all at that point. Mr. Harvey later told Dr. Pomichalek that Mr. Elie had used a racial slur. That was much later.

[15] I find that Mr. Harvey is not credible on the point. I do not believe his evidence that Mr. Elie used a racial slur and that the slur caused him to lose control to the point where provocation applied. I find that he fabricated that excuse. For the purposes of sentencing, therefore, I find that the defence of provocation did not apply. Rather, I am bound by the finding of the jury that Mr. Harvey's capacity was diminished to the point that he did not have the requisite intent to commit murder.

Conclusion

[16] For the foregoing reasons, I granted the Crown application for an assessment.

R.F. Goldstein J.

Released: September 11, 2025