ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Malcolm, 2026 ONSC 3582

COURT FILE NO.: CR-24-30000639

DATE: 20260619

BETWEEN:

HIS MAJESTY THE KING

– and –

LEAHAIN JOLANDA MALCOLM

Defendant

Andrea McPhedran, for the Crown

Alison Shields, for the Defendant

HEARD: May 20, 2026

REASONS FOR SENTENCE

SPIES J. (Orally)

Overview

1On April 6, 2026, the defendant, Leahain Jolanda Malcolm (“Mr. Malcolm”), was convicted of two counts of the included offence of assault, contrary to s. 265(1)(a) of the Criminal Code and one count of uttering a threat to cause bodily harm to the complainant, contrary to s. 264.1(1) (a) of the Criminal Code. The offences occurred on May 19, 2024, while the defendant and the complainant were both inmates sharing a cell at the Toronto East Detention Centre (“TEDC”). The facts relevant to these offences are set out in my decision: R. v. Malcolm, 2026 ONSC 2018.

2Mr. Malcolm is now before me for sentencing.

The Facts

Circumstances of the Offence

3In summary, I found that in the middle of the night, while the complainant was sleeping on his stomach on the bottom bunk in their cell, he suddenly awoke to the pressure of Mr. Malcolm on his back and that he noticed that his boxers were down at the back below his bum. The complainant believed that Mr. Malcolm was trying to sexually assault him and he became very afraid and struggled to get away from Mr. Malcolm and to get some help from the Correctional Officers outside. Although I found it probable that Mr. Malcolm assaulted the complainant for the purpose of sexually assaulting him, I was not satisfied of that and found it was possible that something provoked Mr. Malcolm to simply attack the complainant and in the struggle that followed the complainant’s boxers were pulled down.

4I also found that once the complainant struggled and got away was standing at the cell door yelling and banging on the door trying to get assistance from one of the Correctional Officers that Mr. Malcolm then physically tried to stop him by trying to push or pull the complainant away from the cell door.

5Finally, I found Mr. Malcolm told the complainant to shut up and that he threatened to harm him or that the others would harm him if he told anyone about the assault.

Circumstances of Mr. Malcolm

6I do not have a pre-sentence report (“PSR”), but Ms. Shields filed two psychiatric reports that were prepared for another trial where Mr. Malcolm was facing a charge of first degree murder of his husband, Mr. Brown, who was stabbed to death on February 27, 2021 (the “Reports”). I have a report from Dr. Lisa Ramshaw, a forensic psychiatrist, who provided a report dated July 31, 2023, pursuant to an order from a judge of this court for the purpose of conducting a psychiatric assessment of criminal responsibility of Mr. Malcolm with respect his murder charge. I also have a report from a psychiatrist, Dr. Derek Pallandi, dated June 6, 2025, to counsel for Mr. Malcolm. He was asked to provide an opinion from a psychiatric perspective of Mr. Malcolm’s conduct that ultimately led to the homicide of his husband and specifically to consider whether or not he suffered from symptoms of a mental disorder at the material time which may have materially influenced his ability to appreciate the nature and quality of his actions or to know that they were wrong.

7Mr. Malcolm had no criminal record at the time he committed the offences before me, but I was advised that he was found guilty of second degree murder by Justice McArther of this court in connection with the stabbing death of his husband and that his sentencing hearing is still to be conducted.

8The Reports provide some information about Mr. Malcolm’s background. He is currently 34 years old. He was 31 at the time of these offences. Mr. Malcolm was born in Montego Bay, Jamaica. He reported having had a good childhood and being raised in a “loving stable household”. He lived with his parents until he left for university in 2011. His parents remain together. He has paternal half-siblings who are five to ten years older than him. He has never lived with them, and they have no contact. Mr. Malcolm was outgoing and talkative as a child, had many friends, and played the trumpet and trombone. He said that he no significant behavioural problems. He listened to his parents and was an obedient child.

9Mr. Malcolm attended law school and obtained an LLB in 2014. He did not pass his certification exam. In university, he was depressed after contracting HIV in 201. He worked for the government investigating the police for four years. After an eight-year relationship, Mr. Malcolm married Mr. Brown who was a medical internist in Jamaica in April 2016. They came to Canada as refugees in early January 2020, just prior to the pandemic. In Jamaica, there was significant stigma about mental illness and homosexuality. They had no dependents.

10Mr. Malcolm did not work in Canada and was supported by ODSP for HIV. He submitted his degree to the Law Society of Ontario in September 2020 but was told he would not qualify and would need to return to law school. Mr. Brown was planning to obtain his qualifications so he could work in Canada.

11There is a lot of information about possible psychiatric disorders that Mr. Malcolm suffers from. He has a history of depression, substance-induced psychosis, and substance abuse. Over time, he has been treated with antipsychotic medication, and various antidepressant medications.

12Mr. Malcolm was initially detained at the Toronto South Detention Centre, until he was transferred to the protective custody environment of the TEDC in December 2023. He reported that he has not been involved in any institutional misconducts but reported that he had been sexually assaulted. He denied any interpersonal problems and indicated that his treatment has been satisfactory in the correctional environment.

13Mr. Malcolm has been seen by correctional mental health professionals throughout his stay at the TSDC and the TEDC. He was being prescribed the antipsychotic Abilify while at the TSDC, however discontinued it and has remained on no medications by his choosing, since 2024, because he did not think he had a problem anymore. Although he still has had some residual depressive symptoms he does not believe he requires treatment.

Circumstances of the Complainant

14The complainant sustained bruises and scratches to the back of his legs during the assault. When the complainant walked into court to give evidence, he did so using a cane. When he was asked about this in cross-examination, he testified that in addition to arthritis in his knees he now has nerve damage in his leg due to the altercation and that he did not need a cane then, but he does now. This evidence was not challenged.

15The complainant also provided a Victim Impact Statement (“VIS”), and he attended the sentencing hearing virtually from the TEDC. The complainant appeared by Zoom at the sentencing so he could read his VIS to me but unfortunately despite Ms. McPhedran’s efforts he was not given a copy of his statement. Ms. McPhedran read it into the record for him, and he confirmed its accuracy.

16In terms of physical injury, the complainant he referred to the fact that he now must use a cane. He also reports that the dosage of his medication for his seizure disorder needed to be increased and other medications added. His VIS focused on the psychological injury he has and continues to suffer as a result of the offences. He and Mr. Malcolm are both still at the TEDC and the complainant believes that Mr. Malcolm or someone still wants to kill him. This has not been proven as a fact, but I accept that the complainant believes this. As a result, he does not sleep well at night. Every noise wakes him up. He now can’t tolerate a cell mate and does not like to be around people. He is in the medical or isolation unit. When he is out on the range, he sits at the table and does not speak to anyone or make eye contact with anyone. He just wants to be left alone and reports that is life will never be the same again.

Legal Parameters

17The maximum sentence for the assault convictions is five years pursuant to s. 266(a) of the Criminal Code and for the conviction of uttering a threat to cause bodily harm, five years, pursuant to s. 264.1(2)(a) of the Criminal Code. There is no minimum sentence for these offences.

Positions of Counsel

18Ms. McPhedran, counsel for the Crown, requests that a sentence of three to six months in custody be imposed on each count, concurrent to each other. It is her intention that these sentences run concurrently to the life sentence that Mr. Malcolm will be serving once he is sentenced by Justice McCarther. She also seeks ancillary orders of a secondary DNA order and a s. 743.21 non-communication order with the complainant.

19Ms. Shields does not take any issue with the ancillary orders requested but submits that I should grant Mr. Malcolm a conditional discharge.

Relevant Case Law on Conditional Discharges

20There is no dispute that a conditional discharge is available in this case as there is no applicable minimum sentence for these offences.

21Pursuant to section 730(1) of the Criminal Code, if I consider it to be in the best interests of Mr. Malcolm and not contrary to the public interest, instead of convicting him, I may direct that he be discharged on conditions prescribed in a probation order made under s. 731(2) of the Criminal Code. The significance of this, of course, is that if Mr. Malcolm complies with all the conditions, then he will be discharged of the offences and be deemed not to have been convicted of these offences pursuant to s. 730(3).

22Ms. Shields provided a number of cases in support of her position, including the decisions from the Ontario Court of Appeal of R. v. Khanna, [1998] O.J. No. 2192 and R. v. Meneses, 1974 CanLII 1659 (ON CA), [1974] O.J. No. 736. There are other cases from our Court of Appeal in the same time frame that I also find of assistance, referred to in the cases relied upon by Ms. Shields.

23In Regina v. Sanchez-Pino, (1973), 1973 CanLII 794 (ON CA), 11 C.C.C. (2d) 53 (Ont. C.A.) Arnup J.A. made a number of general comments about the predecessor to s. 730, at para. 16, which had just come into force. He said that, in his view, the primary purpose of this section is to provide that an offender who has been found guilty of what might loosely be described as a “less serious” offence, would not have a conviction recorded against him and would, therefore, not have a criminal record as a result of the occurrence. As for the meaning of “in the best interests of the accused”, and not “contrary to the public interest”, he stated at para. 17-19 as follows:

I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centers, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be “contrary to the public interest” to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence – a standard part of the criteria for sentencing.

... In some cases the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

To attempt more specific delineation would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial, discretion vested in the trial Court. That Court must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria that I have mentioned. (emphasis mine)

24In R. v. Wood, (1975), 1975 CanLII 1410 (ON CA), 24 C.C.C. (2d) 79, at para. 4, the Court of Appeal stated that:

In cases of violence resulting in injury, the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused. (emphasis mine)

25There have, however, been cases of assault causing bodily harm where conditional discharges have been granted, for example R. v. Jimenez, [1999] O.J. No. 1847 (Gen. Div.), a case relied upon by Ms. Shields. That case however is distinguishable as the court found the single punch which resulted in serious injury was an impulsive act. That is not this case. Although I found it possible that something provoked Mr. Malcolm to attack the complainant, I found it more likely that he did so for the purpose of sexually assaulting him. Furthermore, the second assault was clearly deliberate. Ms. Shields also relies on R. v. Khanna, [1998] O.J. No. 2192 (C.A.), but that case is also clearly distinguishable. Although I appreciate domestic assault is a serious offence, by the time of the appeal, the offender and complainant were divorced and there was no likelihood they would cross paths again as they were living in different countries and the offender wished to move to the United States to continue his dentistry practice.

26In considering the second prong of the test, the case of R. v. Meneses, (1974), 1974 CanLII 1659 (ON CA), 25 C.C.C. (2d) 115, relied upon by Ms. Shields, is of assistance. In that decision of the Court of Appeal, Dubin J.A., stated at paras. 6 and 10, that the “general principles of punishment must always be pliable enough to accommodate a careful consideration of the effect of punishment on the individual” and that “knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence.” At para. 6 he stated that the paramount consideration was the character of the offender in that case, the fact the misconduct was an isolated one, and out of keeping with her past good character and that a conviction might have a detrimental impact on her ability to obtain employment. In that case the offender was a widow with five children to support, and she had been a practicing dentist in the Philippines with no criminal record. Although at the time of this offence Mr. Malcolm had no criminal record, given he will be serving a life sentence an additional custodial sentence is not likely to have any impact on his future ability to find employment.

27The other cases relied upon by the defence can be distinguished for similar reasons. In R. v. Krelove, [2025] O.J. No. 4623, 2025 ONSC 6058, the offender was suspended from his employment after he was charged and the evidence on sentencing was that if he was convicted his employment would likely be terminated. Similarly in R. v. Sammy, [2004] O.J. No. 1850, 2004 ONCJ 32, four correctional officers were being sentenced for assault causing bodily harm of an inmate. Two were given conditional discharges. In the case of Mr. Mondesir, his actions were considered out of character, his character references were exceptional, and he and his family has suffered severely since he was charged, largely because he had lost his job and had not been able to find work. He was given a conditional discharge and eight months’ probation. Including 75 hours of community service. In the case of Mr. Collins, he was granted a conditional discharge and six months’ probation including 50 hours of community service, because he had not administered any blows, had an excellent record and references and had suffered serious damages as a result of the charges.

Principles of Sentencing

28The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society, when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must consider the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2. Sentencing is an individualized process that requires this court to consider the circumstances of the offences and the attributes of Mr. Malcolm, see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, at paras. 43-45.

Analysis

Mitigating Circumstances

29I turn now to the mitigating circumstances relevant to sentence:

a. At the time of this offence Mr. Malcolm was a first offender. Thus, the principle of restraint is important.

b. Mr. Malcolm suffers from serious mental health issues as set out in the two psychiatric reports. I do agree with Ms. Shields that these mental health issues have made it difficult for Mr. Malcolm to be in custody. However, there is no evidence to suggest that they played any role in the assaults. Based on the report of Dr. Pallendi, Mr. Malcolm reported that he had stopped taking his medications “since 2024” because he did not think he had a problem anymore. It is not clear what his mental health status was at the time of these offences in May 2024 and whether by then he had stopped taking any medication. The complainant was not asked any questions to suggest that Mr. Malcolm had been behaving in an odd manner, and he testified that they had no interaction or issues and simply kept to themselves for the week they were together in the same cell.

c. In terms of Morris factors, Mr. Malcolm is a black male, but he had a positive upbringing save for one incident of discrimination. More significant is the fact that he received discrimination as a gay male, particularly in Jamaica and that has been an issue at times since he came to Canada.

30Mr. Macolm did not plead guilty, nor has he expressed any remorse for his actions, but these are neutral factors. That said, he does not get any mitigation of sentence as a result.

Aggravating Factors

31As for aggravating factors, a significant one is that these assaults occurred in the middle of the night, while the complainant was sleeping and inside a locked cell where the complainant had no means of escape. He was particularly vulnerable, having been awoken from sleep and his only way to get help was to get away from Mr. Malcolm and get to the cell door and get the attention of one of the guards who was circulating outside. I agree with Ms. Shields that I cannot find that the fact the complainant’s boxers were pulled down to be an aggravating factor, because I did not find they were deliberately pulled down by Mr. Malcolm. However, I do find that the fact they were down below the complainant’s buttocks increased his vulnerability and no doubt his fear because of what he reasonably believed was happening. Mr. Malcolm then attempted to prevent the complainant from getting help and by threatening him, to avoid having the complainant report his conduct to the those in authority. In R. v. El-Enzi, [2020] O.J. No. 642, [2020] ONCA 117, at para. 29, the court approved of the trial judge’s finding that the fact the assault occurred in a correctional facility where "inmates are entitled to serve their sentences or prepare for trial in an environment devoid of violence" was an aggravating factor.

32Counsel debated whether or not Mr. Malcolm’s actions were premeditated or impulsive. I agree with Ms. McPhedran that his conduct was not impulsive. He was awake and as I said at para. 50 of my judgment that fact is important because it is likely that he would have seen Officer Sirianni looking into the cell. Given the evidence of the officer and the complainant, it is reasonable to infer that Mr. Malcolm knew that the officers looked into each cell at night as part of their routine checks, which would mean that there would be some time until an officer would look into their cell again. Mr. Malcolm could also have reasonably expected the officer to still be in the area however, so if he did assault the complainant he would have to say or do something to try to keep him quiet. For these reasons I find that Mr. Malcolm’s decision to assault the complainant and then try to keep him quiet and threaten him were all deliberate actions.

33The other significant aggravating factor in this case is the significant impact on the complainant. The bruises were transient but the fact he suffered a permanent injury and now requires a cane was not challenged. It is also clear from his VIS and his presentation this morning on Zoom that there has been a significant psychological impact which will clearly continue at least as long as he is finishing his sentence. Hopefully his struggles will not continue once he is released.

What is an Appropriate Sentence in this Case?

34I turn then to what is an appropriate sentence in this case. Ms. Shields submitted that normally for a first offender in a case like this, the offender would not be sentenced to time in jail. In my view it is more appropriate to state that jail may be a less common outcome, but it is certainly not unheard of, particularly given the assaults took place in a jail and the other circumstances of the assaults.

35In a case like this, given Mr. Malcolm will be serving a life sentence, there are realistically only two outcomes, a jail sentence or a discharge. I cannot for example impose a conditional sentence.

36Ms. McPhedran provided one case of an assault in an institution, R. v. O'Loughlin [2017] O.J. No. 476, 2017 ONCA 89, where a 20-month sentence was upheld, but she acknowledged that the injuries were more serious. In the case at bar, clearly if a custodial sentence is imposed it must be much less. In my view the range suggested by the Crown is reasonable for the circumstances of this case.

37Ms. McPhedran accepted that a conditional discharge would be in Mr. Malcom’s best interests, but she submitted that in cases where one has been granted, there is usually a specific reason why a conditional discharge would be of particular benefit to the offender. I accept that a conditional discharge would be in Mr. Malcolm’s personal best interests although that interest is not strong in the circumstances of this case. Although when Mr. Malcolm addressed me, he repeated Ms. Shield’s submission that it would help in his rehabilitation, I do not understand how. I accept it might be of assistance in a future parole hearing, but it would clearly be a secondary consideration to his conviction of second degree murder. There is no job or profession at stake here or any other clear benefit or specific reason supporting the granting of a conditional discharge. However, I will accept that simply put, a conditional discharge is in Mr. Malcolm’s best interests and proceed to consider the second requirement: Would a conditional discharge not be contrary to the public interest?

38Ms. McPhedran also submitted that a conditional discharge would be contrary to the public interest because jails need to be as safe as possible and, in these circumstances, both general and specific deterrence is important. I agree. In my view a conditional discharge would be contrary to the public interest in this case in that it would send the wrong message. This was a case of an assault with some violence and attempts by force and threats to ensure that it would never be reported to the authorities. The impact on the complainant from a physical and psychological perspective is significant. In terms of general deterrence, it is important to send a message to those serving time on remand or sentences in provincial jails that this type of conduct will be taken seriously and will not be tolerated by the courts. It may be, as Ms. McPhedran advised, that these types of issues would ordinarily be dealt with as misconducts in the institutions, and that could explain the dearth of cases, but in my view this type of assault is more serious than a similar assault committed outside an institution.

39Furthermore, there is the need for specific deterrence. Justice Dubin in Meneses at para. 12, stated that a person who is granted a conditional discharge does not go “scot-free” after committing the offence because the accused person is subject to the terms of the probation order and, in effect, earns his or her discharge by meeting those terms. If the terms are not met, the accused may be brought back and sentenced for the offence and a conviction will be recorded.

40In this case, however an order of probation would have no real impact on Mr. Macolm. I do not see how conditions could be crafted for Mr. Malcolm to earn his discharge while he is in custody. I do not believe that probation officers would go to see him at the TEDC as suggested by Ms. Shields, and even if they did, to what end? I have no control, nor would a probation officer have any control over the type of counselling, treatment or other terms that I might impose as terms of a conditional discharge. There would be no way of addressing the question of rehabilitation as suggested by Ms. Shields and Mr. Malcolm when he addressed me. A conditional discharge in these circumstances would effectively be an absolute discharge. In these circumstances that would clearly be contrary to the public interest.

41For these reasons I have decided that it would not be appropriate to grant a conditional discharge. I have concluded that a three month sentence in all of the circumstances is appropriate.

Final Disposition

42Mr. Malcolm please stand.

43With respect to your conviction on Count #1 the included offence of assault, I sentence you to three months in custody.

44With respect to your conviction on Count #2 the included offence of assault, I sentence you to three months in custody to run concurrent to your sentence on Count #1.

45With respect to your conviction on Count #3, uttering a threat to cause bodily harm to the complainant, I sentence you to three months in custody to run concurrent to your sentence on Count #1.

46In addition, there will be a secondary DNA order attached to your assault convictions and a non-communication order pursuant to s. 743.21 prohibiting any communication with the complainant during the custodial portion of your sentence.

Spies J.