CITATION: R. v. Harvey, 2026 ONSC 47
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
RICO HARVEY
Patricia Garcia, for the Crown
Tyler MacDonald and Lisa Labelle,
for Rico Harvey
HEARD: June 20, 2024
REASONS FOR sentence
R.F. GOLDSTEIN J.
CONTENTS
I. OVERVIEW... 2
II. THE PROPER APPROACH.. 4
III. THE MANSLAUGHTER SENTENCING.. 4
(a) Rico Harvey’s Background. 4
(b) Rico Harvey’s Mental Health Between 2015 And May 2020. 5
(c) Rico Harvey’s Encounters With The Police And The Justice System.. 9
(d) The Index Offence: Rico Harvey Kills Peter Elie. 10
(e) Dr. Pomichalek’s Evidence. 17
(f) The Jury’s Verdict And My Findings Of Fact 18
(g) Mr. Harvey’s Mental Health Since May 2020. 23
(h) Position of the Crown And Defence And Cases In Support 28
(i) Statutory Framework: Principles Of Sentencing. 29
(j) Mitigating And Aggravating Factors. 31
(k) Impact Of The Offence On The Victim And The Community. 33
(l) Protection of the Public: 34
(m) Should Parole Be Delayed?. 35
(n) Sentence Imposed. 35
IV. THE APPLICATION FOR A LONG-TERM SUPERVISION ORDER.. 37
(a) The LTSO Regime. 38
(b) Is It Appropriate To Impose A Sentence Of Two Years Or More?. 39
(c) Is There A Substantial Risk That Mr. Harvey Will Re-Offend?. 40
(d) Is There A Reasonable Possibility Of Control In The Community?. 40
V. CONCLUSION.. 42
I. OVERVIEW
1On May 13, 2020, some time after 10 pm, Rico Harvey snuck into 155 Balliol Street in Toronto. 155 Balliol Street is a residential apartment building. Peter Elie lived in the building.
2At around 11:50 pm that night, Rico Harvey attacked Peter Elie from behind in the laundry room. Mr. Harvey administered a brutal beating to Mr. Elie. He beat Mr. Elie with his fists; he kicked Mr. Elie while Mr. Elie was on the ground; he beat Mr. Elie with a fire extinguisher. He dragged Mr. Elie around the laundry room and into the bathroom. He dumped the contents of a garbage can on Mr. Elie and then threw the can at him. The beating went on for about 10 minutes. He then left the laundry room. Mr. Elie was on the floor, barely moving, covered with garbage – and covered with blood. Mr. Harvey came back into the laundry room about 7 minutes later. He continued the beating, again using a fire extinguisher, hitting Mr. Elie on the head and torso. He set several garbage cans on fire. He left the building at about 1:37 am on May 14, 2020. Toronto Fire personnel found Mr. Elie at about 2:12 am. He was VSA, or vital signs absent. A doctor subsequently declared Mr. Elie dead.
3Toronto Police arrested Rico Harvey for the murder of Peter Elie on May 15, 2020, in a Popeye’s Chicken restaurant. Mr. Harvey was charged with first degree murder.
4The trial commenced on February 12, 2024. There was no doubt at trial that Mr. Harvey unlawfully caused the death of Mr. Elie. The issue for the jury was his level of culpability: the jury was required to determine whether he had the intent required for murder, and, if so, whether he was guilty of first-degree murder or whether the defence of provocation applied. On April 12, 2024, the jury acquitted Mr. Harvey of murder but convicted him of the lesser and included offence of manslaughter.
5On June 20, 2024, I granted a Crown application for an assessment under s. 752.1 of the Criminal Code in contemplation of a dangerous offender or long-term offender application. On March 28, 2025, Deputy Attorney General David Corbett consented to proceedings to have Mr. Harvey declared a long-term offender pursuant to s. 753.1 of the Criminal Code. I appointed Dr. Sumeeta Chatterjee as the assessor. She submitted an assessment report dated January 13, 2025. As part of the s. 753.1 assessment process, Dr. Stephanie Penney, a forensic psychologist, conducted tests and prepared a report.
6A sentencing and long-term offender hearing commenced on September 18, 2025.
7There are several sentencing principles to be applied. The most important sentencing principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This was a grave offence. A life was lost. Mr. Harvey’s responsibility is very high. I find that this was a manslaughter that is as close to a murder as it is possible for a manslaughter to be. The killing of Mr. Elie was brutal, shocking, protracted, intensely violent, and unprovoked.
8I also find that Mr. Harvey is a very dangerous man. He will suffer from mental illness for the rest of his life. As Dr. Chatterjee testified, he cannot be cured. His mental illnesses control him unless he controls them by abstaining from illegal drugs and taking his prescribed medications. Unfortunately, I find that Mr. Harvey cannot be relied on do either thing. He has never willingly abstained from illegal drugs nor taken his prescribed medications for long periods of time except under very strict controls and supervision. Mr. Harvey will remain ill, and he will remain at risk of discontinuing his medication and taking up self-medication. When he does that, he is a danger to himself and others. It must also be said that during the killing of Mr. Elie, Mr. Harvey set garbage fires in the laundry room, an incredibly dangerous thing to do. He put all of the residents of 155 Balliol in danger.
9The protection of the public is an important sentencing principle in a case of this nature. The protection of the public requires that Mr. Harvey never be in a position where he is unsupervised. Lives may literally depend on it.
10It is for those, and the other reasons set out below, that I sentence Rico Harvey to life imprisonment. In sentencing Mr. Harvey to life imprisonment, I am aware that I am imposing a sentence that is higher than what the Crown asked for. I put counsel on notice that I was considering a life sentence and invited submissions. After due consideration, I concluded that the principles of sentencing in this case call for a life sentence. Since a long-term offender designation cannot coexist with a life sentence, I dismiss the long-term offender application.
11What follows are my reasons. I will deal first with the manslaughter sentencing, and then briefly go through the long-term supervision order (“LTSO”) analysis, notwithstanding that I am not making an LTSO.
II. THE PROPER APPROACH
12Long-term offender proceedings form part of the sentencing process: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 45-46. The determinate sentencing part of the sentencing process must be distinguished from the LTSO analysis. The two proceedings are heard by the same judge in relation to the same offence or offences, but they serve different purposes. The focus of sentencing for the index offence is punishment, in accordance with the purposes and principles of sentencing. The focus of the LTSO is to prevent re-offending and protect the public by a period of supervised re-integration into the community: R. v. L.M. at para. 46, 48. The judge must determine a fit sentence separately from the proper length of the LTSO: R. v. L.M. at para. 47. In other words, the sentencing judge must not consider the combined length of the sentence for the index offence and the LTSO.
13I turn first to the sentence for manslaughter.
III. THE MANSLAUGHTER SENTENCING
(a) Rico Harvey’s Background
14Mr. Harvey was born in Toronto on October 16, 1992. Mr. Harvey has had regular contact with the mental health system and the police from the time he was about 20 years old. As a result, there are many records. He has recounted his history to numerous mental health professionals, including doctors and intake workers.
15At the time of sentencing, Mr. Harvey was 33 years old. He has four siblings – three sisters and a brother. None of his siblings have a criminal record. According to Mr. Harvey, his father was deported to St. Vincent when he was only 18 months old. He has had limited contact with his father. His mother remarried. Mr. Harvey and his stepfather, Devon Wallace, have had conflict. Mr. Harvey reported that his stepfather disciplined him harshly. That discipline included physical beatings and beatings with a belt. Mr. Harvey also reported that Christianity was important to the family. He grew up attending church on a regular basis. He reported sexual abuse at the hands of a babysitter when he was between 7 and 9 years old. Mr. Harvey was a reasonable student, doing moderately well in middle school and high school. He reported that he was liked by teachers.
16Mr. Harvey reported minor criminality in his youth that contributed to a later diagnosis by Dr. Chatterjee of conduct disorder. He began shoplifting in grade 2 or grade 4, behaviour that continued into adulthood. He also developed a fascination with starting fires, something that he did when he was killing Mr. Elie. Mr. Harvey also reported that he was accepted into a college police foundations course, but he says that he dropped out when he learned that he could not be recruited as a police officer until he turned 25 years old.
17Mr. Harvey’s school records indicate that he attended multiple schools in grade and middle school, but he attended one high school. He graduated from high school and did reasonably well, garnering positive comments from teachers but he did fail some classes.
18After high school, Mr. Harvey worked in restaurants. He self-reported having had 9 jobs since the age of 17. He also self-reported having a variety of jobs related to restaurants and baking. At age 19 he was in a car accident and could not work for a year. He self-reported that he was fired from at least one job for smoking marijuana during a break.
(b) Rico Harvey’s Mental Health Between 2015 And May 2020
19Sharon Wallace, Mr. Harvey’s mother, testified at Mr. Harvey’s trial that he began to have serious problems when he was around 20. The years between 2012 (when Mr. Harvey would have turned 20) to 2020 were marked by homelessness, instability, substance abuse, and frequent hospital stays for Mr. Harvey. He was often angry and uncontrollable, according to family members and arrest and court records. Ms. Wallace was in a car accident with Mr. Harvey in the car when he was 19. Although there is no record that Mr. Harvey suffered a head injury, he testified that he thought he had a traumatic brain injury. Dr. Penney described a psychological assessment made after the car accident:
A psychological assessment was conducted in July 2012 to determine extent and nature of psychological difficulties post-MVA. Results from this assessment suggested that Mr. Harvey was experiencing several psychological sequelae since the accident, including difficulties concentrating and focusing, low mood and sadness, anhedonia, irritability, nightmares and disturbed sleep, and increased anxiety, anger, and emotional outbursts. With regards to the latter, Mr. Harvey, at the time of this 2012 assessment, reported worrying about his outbursts as he felt unable to control them and they were negatively impacting his social life.
20It is not clear whether there is a real or merely perceived connection between the car accident and Mr. Harvey’s later mental health difficulties – although the difficulties themselves are real enough. What is clear is that there was a serious and growing concern about Mr. Harvey’s mental health and, as Dr. Penney put it in her report, “a decline in his functioning” from about 2015, when Mr. Harvey was 22.
21When he was 19, Mr. Harvey was charged with uttering threats and required to live with a surety. He eventually moved back home, but then was kicked out after he continued to have fights with his stepfather. He again lived at home until he was 25, but again was kicked out due to problems with substance abuse and violence. He was required to leave the house for the safety of his younger siblings when the Children’s Aid Society became involved.
22Police records indicate that Mr. Harvey was apprehended on multiple occasions under the Mental Health Act, R.S.O. 1990, c. M.7. He had several hospital emergency visits in 2015. In 2017 he was seen approximately 36 times at the Brampton Civic Hospital. He continued to be hospitalized in 2018. Attending physicians and members of his family, especially his mother, submitted forms under the Mental Health Act to have him assessed and admitted to hospital. On several occasions, the police brought him to the hospital rather than to jail. He became impossible for his family to control in the home. He was diagnosed with cannabis use disorder, adjustment disorder, and major depressive disorder. He was often prescribed medications to deal with his mental health issues. He was banned from some homeless shelters in Mississauga and Toronto due to violent behaviour.
23There are literally thousands of pages of medical records detailing Mr. Harvey’s contact with the mental health system. Most, but not all involve the Brampton Civic Hospital. It is not necessary to go through them all in detail. Instead, I will mention just a few of the hospital visits and admissions as they appear to represent the wider trend:
On July 18, 2015, Mr Harvey was admitted to Brampton Civic Hospital for three days on a Form 1. The police found him outside his home being loud, excited, and boisterous. He claimed he had been assaulted. The hospital notes described him as agitated and physically and verbally abusive. He had to be placed in restraints. The emergency room physician diagnosed him with schizophrenia. He had been on Latuda, an anti-psychotic medication, but his mother, Ms. Wallace, believed he was non-compliant. In hospital he was prescribed Lorazepam, an anti-anxiety medication. Ms. Wallace also reported that Mr. Harvey had made comments about being Satan and Lucifer and that he was going to commit suicide by biting off his tongue and bleeding to death. Substance abuse disorder was ruled out.
Mr. Harvey was back in the hospital again later on July 26, 2015. He had been violent, punching walls and threatening to kill his family. The police brought him to the emergency department rather than jail, although he had assaulted someone. He was on Lurasidone at the time (an anti-psychotic medication) and his dosage had recently been increased.
Mr. Harvey testified that in 2015 he was paranoid. He laid down behind a car while his stepfather was backing up. He impulsively jumped on the hood. He thought his family didn’t care about him. He was delusional and just wanted to end his life. There was also an incident when his mother was driving him, and he opened the door and stuck his foot out. He was having temper tantrums and acting out. He continued to have arguments with people in the house and break things throughout 2015. He was unstable, anxious, and had trouble sleeping.
Mr. Harvey was taken or brought to the hospital 9 times in February, March, and April 2017. He was involuntarily admitted on a Form 1 at least once and on a Form 2 at least once. There were further visits in April and May 2017. On May 13, 2017, Ms. Wallace swore a Form 2 to have Mr. Harvey admitted to the hospital. She was concerned that he was not taking his medication. He continued to threaten to kill his family. He had to be placed in restraints at the hospital. On May 15, 2017, Mr. Harvey was admitted to Brampton Civic Hospital and discharged on May 29, 2017. He was diagnosed with cannabis use disorder, intermittent explosive disorder, antisocial personality traits, and mood disorder. He stabilized in the hospital and was released with prescriptions for Fluoxetine (an SSRI), Quetiapine (also known as Seroquel, an atypical anti-psychotic), and Olanzapine (also an atypical anti-psychotic).
On May 16, 2018, Mr. Harvey was admitted to Brampton Civic Hospital and he stayed until June 25, 2018. He had been found wandering in the street by his mother and his aunt. He then attended an adult day treatment program in July and August 2018. He was diagnosed with cannabis use disorder, adjustment disorder, and major depressive disorder. While in the hospital he was prescribed Fluoxetine (an anti-depressant), Seroquel (an anti-psychotic medication), and Trazodone (an anti-depressant). He improved in hospital. Dr. Penney, in her report, stated:
There were multiple hospital visits and admissions documented in 2017 and 2018. At times Mr. Harvey was apprehended under the Mental Health Act, while at other times he brought himself to the hospital. Mr. Harvey was variably diagnosed with depression and anxiety, bipolar disorder, antisocial personality traits or disorder, and adjustment disorder with depressed mood and anger. Queries of schizophrenia and/or drug-induced psychosis were also tendered. Suicide attempts were documented in 2017, 2018 and 2020.
24Mr. Harvey testified at trial that in 2017 he was in and out of hospital. He was sometimes taken involuntarily by the police under the Mental Health Act and sometimes voluntarily by ambulance or by his mother. He was doing very poorly; he was experiencing homelessness, depression, and aggression. He was getting into more fights. In 2017 his family finally kicked him out when they could no longer control him. He stayed in shelters but kept getting kicked out. He also couch-surfed with friends. He thought about killing himself but testified at trial that he didn’t have the courage. He was smoking marijuana every twenty minutes. He was engaging in reckless behaviour. He occasionally heard voices. Between 2017 and 2020 his relationship with his family worsened. He was very angry, and it took little to provoke him. His relationship with his mother was very strained. He blamed her for his condition.
25Mr. Harvey’s mother, Ms. Wallace, testified at the trial. Her evidence was heart-wrenching. She described the many attempts she made to get him the care he needed. She was well aware of his problems with instability, substance abuse, violent behaviour, mental illness, and his failure to take prescribed medications. She tried to have him admitted on a long-term basis to treat his mental health issues on several occasions. If the system failed Mr. Harvey, and, obviously, Mr. Elie, it was not because Ms. Wallace did not do everything she possibly could. She did.
26Mr. Harvey achieved some stability in 2018 and 2019, after his long-term stay in 2018. He did better in an institution, where he did not have access to cannabis (of which he was a heavy user) and did have access to prescribed medications where staff could ensure that he would take them. Upon release he started working again. However, he deteriorated again. He stopped taking his medication because he felt drowsy at work. He also began to use cannabis again.
27During the period when Mr. Harvey was 25 and 26, sometime around 2017 to 2018, he began a relationship and lived with his girlfriend, Stephanie Lainesse. They met at a restaurant where they both worked. They initially cohabitated for eight months, but the relationship ended over his substance abuse problems. She became pregnant and subsequently gave birth to their son. They later resumed their relationship, and Ms. Lainesse became pregnant again, this time with their daughter. The day before she was due Mr. Harvey had an argument with her and broke her phone. She kicked him out again. He became homeless again in November 2019. At that point Mr. Harvey’s last downward slide began, ending with his killing of Mr. Elie.
28In November 2019, Tatiana Wallace, Mr. Harvey’s sister, signed a Form 2 under the Mental Health Act. He was involuntarily admitted to hospital on December 6, 2019. He stayed until December 20, 2019. He was brought to hospital again on a Form 1 on January 9, 2020. He was hospitalized until January 17, 2020. He was again hospitalized on a Form 1 when the police brought him in on March 23, 2020, and he stayed in hospital until March 27, 2020. He was experiencing suicidal ideation and violent episodes. His family indicated that he was being violent, threatening, and continuing to use cannabis.
29On April 9, 2020, the police again brought Mr. Harvey to the emergency department. He had an altercation with another resident at a homeless shelter. The police reported that he had been banging his head on the interior of the police car and expressing suicidal thoughts. He was not taking his medication. His family reported that he had been non-compliant with his medication for 9-10 months.
30Mr. Harvey attended hospital again on May 5, 2020. He was admitted overnight. Mr. Harvey testified that in March 2020 he was smoking a lot of marijuana. His family kicked him out again. He was drunk and kicked in the door and left. He went to the hospital and was involuntarily admitted. When he was released, he stayed in a shelter and sometimes with friends. He was not taking his medications because he was homeless. He was also having conflict with Ms. Lanesse
31Mr. Harvey continued to encounter the police in the months prior to killing Mr. Elie. He was charged with uttering threats in relation to an assault at a shelter in Brampton in April 2020. In May 2020, the police charged Mr. Harvey with mischief. He made several false 911 calls. He falsely indicated in the calls that he was being assaulted, threatened with a gun, or had accidentally shot himself or his girlfriend (Mr. Harvey also made a false 911 call shortly after he killed Mr. Elie, claiming he was in a car accident). At the time he killed Mr. Elie he was wanted by the Peel Police for allegedly uttering threats on May 8 and 9, 2020.
32Mr. Harvey frequently did not take his prescribed medication. The medical documents note many instances of these failures. There was something of a vicious cycle. Mr. Harvey was hospitalized, stabilized with medication, released, failed to take his medication, self-medicated with non-prescription drugs (primarily cannabis) and found himself back in the hospital or charged with an offence (or both). The cycle would repeat although the intervals between hospital visits differed. This pattern was exacerbated when he was homeless. He testified at trial that he felt that medication prescribed to treat his various disorders made him less alert. He testified that homelessness is dangerous, and the chances of violent encounters are high. A homeless person therefore needs to have their wits about them. Prescription medication, he testified, dulls the senses needed to survive.
33On the night of May 13, 2020, as Mr. Harvey managed to get inside 155 Balliol Street, he was homeless, smoking large amounts of cannabis daily, and no longer taking his prescribed medications. He had recently been kicked out of an AirBNB that his family had rented for him. He was prohibited from residing at several shelters. He needed a place to spend the night. He testified to the jury that he was in a paranoid state. Dr. Chatterjee summarized his last few weeks before the index offence. I excerpt some passages from her report:
… he was certified on a Form 1 once again after having an altercation with his mother on January 9, 2020, and discharged on January 17, 2020. His family asked the hospital to limit his phone access as they felt harassed and he was threatening to send his “gangsters” to their house. He was treated with Epival 500mg twice daily (as he exhibited hypomanic symptoms), Latuda 60mg, Seroquel 100mg, and Trazodone 150mg. He was stable on discharge, though his mother was unhappy about same and did not accept him back in the home.
He was in the ER again on March 22nd after an altercation with his mother wherein he broke the front door and the family called 911. He was placed on a Form 1 and then very briefly on a Form 3. He admitted to using cannabis and alcohol. There was no evidence of psychosis. He presented with hypomanic symptoms that resolved within two days that was more suggestive of an adjustment disorder in keeping with his personality structure. He was discharged on March 27th to a shelter. He remained on Epival, Latuda, Seroquel and Trazodone. There was no evidence of mania or psychosis on discharge. He presented again to the ER on April 9th after getting into an argument with a co-resident at a shelter, and was sent for medical clearance as he was coughing. He was returned to the ER on April 20th for “violent/homicidal behaviour” and stating he wanted to get shot by police. He was banging his head on the police cruiser. On May 4th (days prior to the index offence) he presented again to the ER requesting a medication prescription. He felt paranoid and aggressive and had not taken his medication for a couple of days. His urine was positive for cannabis. He reported attempting suicide a few weeks prior in the context of being intoxicated and “very dumb”…. He was not psychotic or manic on assessment, and was diagnosed with an adjustment disorder with dysregulation of emotions and conduct, substance use, antisocial personality disorder, and query underlying bipolar disorder. It appears he was discharged the following day, with reason for admission being: “Homelessness, failure to cope”.
34Mr. Harvey was clearly in a downward spiral that ultimately resulted in the killing of Mr. Elie.
(c) Rico Harvey’s Encounters With The Police And The Justice System
35Dr. Chatterjee’s report detailed Mr. Harvey’s many encounters with the police and the justice system, although few resulted in discharges or convictions. Her report recounted the following police occurrences, charges before the courts, and outcomes:
October 31, 2012: Mr. Harvey threatened to burn down he house and kill everyone in it. He was charged with one count of uttering threats and one count of mischief over $5000.00. The charges were withdrawn in exchange for a peace bond.
June 15, 2014: Police found Mr. Harvey in possession of 0.75 grams of cannabis but he was never charged. The police released him.
September 1, 2015: Mr. Harvey threatened to shoot a place up after a phone dispute. He was charged with uttering threats. The proceedings were eventually stayed.
February 8, 2017: Mr. Harvey broke the glass door of his residence. He was cautioned but not charged.
March 14, 2017: Police found Mr. Harvey in possession of cannabis in the lobby of a building but he was never charged. The police released him.
April 3, 2017: A homeowner called police about a possible trespass. No charges were laid against Mr. Harvey. According to Mr. Harvey, the situation arose out of a mistake.
April 5, 2017: It was alleged that Mr. Harvey destroyed the glasses and cell phone of the complainant. He was charged with mischief under, but the charge was withdrawn.
April 16, 2017: Mr. Harvey was homeless and staying with friends. He threatened to shoot the landlord. He received a conditional discharge and 12 months probation.
May 9, 2017: Police investigated Mr. Harvey for smoking in a bar in violation of the no-smoking ban. Police released him without charge.
July 1, 2017: Mr. Harvey put someone in a chokehold. The victim lost consciousness. Mr. Harvey was charged with assault, but the charges were withdrawn almost two years later.
July 15, 2017: Mr. Harvey had possession of a gym bag with someone else’s property. He was charged with theft under $5000 and possession of a Schedule II substance. The charges were withdrawn almost two years later.
April 5, 2020: Police investigated Mr. Harvey for causing a disturbance and melting a security camera. He was charged with mischief, but the records are unclear as to what happened to that charge, likely because it was overtaken almost immediately by the much more serious murder charge.
April 20, 2020: Mr. Harvey was involved in an altercation at a shelter and charged with assault. It is unclear what happened to that charge, again likely because it was overtaken almost immediately by the much more serious murder charge.
May 1-3, 2020: Mr. Harvey was charged with several offences including six counts of mischief, and one count of utter threats. The mischief counts related to false calls to the police and the destruction of Stephanie Lainesse’s phone; and a threat to Ms. Lainesse that he would come to her home with a gun if she did not give him money. Mr. Harvey was charged and released on bail with a condition that he attend for counselling.
(d) The Index Offence: Rico Harvey Kills Peter Elie
36155 Balliol is a residential apartment building. There are three elevators in the building: east, middle, and west. At the time of the index offence the middle elevator was not operating. There is a laundry room and a mail room on the second floor. The laundry room itself is divided into a west half and an east half. (I will call the two halves the “west laundry room” and the “east laundry room”). There is no door between the east laundry room and the west laundry room, simply an opening. The west half contains a small washroom. There is a door from the second-floor lobby into the east laundry room. There is a door from the west laundry room into the mail room. There is another door connecting the mail room to the second-floor lobby.
37Prior to killing Mr. Elie, Mr. Harvey engaged in puzzling or bizarre behaviour at 155 Balliol. That behaviour was recorded by video. He rifled through garbage and mail; he took mail and other literature; he pressed all the floor buttons on an elevator (he did this more than once); he moved a letterbox to block the entrance to the mailroom (ostensibly so he wouldn’t be disturbed) but then tried to put it back in place. He also wandered around 155 Balliol clad in red pants and a jacket without a shirt, exposing his torso and chest. During the killing of Mr. Elie, he also engaged in bizarre behaviour such as destroying one surveillance camera (not one the cameras that recorded the killing of Mr. Elie) but leaving others, setting a garbage can on fire, and then randomly spraying a fire extinguisher.
38Below is a chronology of the events recorded by surveillance cameras at 155 Balliol from the time Mr. Harvey entered the building until the time he left. Note that the 2nd floor lobby camera is 45 seconds faster than actual time. All the other cameras at 155 Balliol are 85 minutes, 4 seconds slower than actual time. I have used the time stamps on the videos rather than calculated actual time. Although the second-floor lobby camera is close to actual time (45 seconds fast) to avoid confusion I have put the video footage in the proper chronological order. Where I am using the second-floor lobby camera with other cameras, I use the other camera time stamps to maintain as much uniformity as possible. I use the present tense to describe the events on the video but use the past tense when referring to testimony or other evidence brought out through testimony.
TIME/
VIDEO
LOCATION
EVENT
22:12
Video 2
Lobby.
Mr. Harvey enters 155 Balliol following a resident who is walking a dog. In subsequent videos Mr. Harvey walks around the ground floor.
22:17
Videos 5, 6
Lobby.
Mr. Harvey gets on the east elevator; he gets off on the 6th floor.
23:44
Videos 8, 9, 10, 11, 12, 13
2nd floor lobby; east laundry room; west laundry room.
Mr. Elie exits the elevator and enters the door to the east laundry room. He goes through the east laundry room into the west laundry room (22:19 time stamp on that video). He uses a washing machine in the west laundry room. He returns to his apartment. (note that videos 9, 10, 11, 12 have earlier time stamps).
22:20
Video 13, 14, 15, 16, 18, 19.
Elevator 1; 2nd floor lobby; east laundry room; west laundry room; mail room.
Mr. Harvey gets into the west elevator on the 6th floor. He is carrying a fire extinguisher. He gets off on the 2nd floor. He leaves the fire extinguisher on the elevator. A moment later, Mr. Elie gets on the same elevator. Mr. Elie looks at the fire extinguisher. M. Harvey goes to the laundry room and then the mail room.
22:24
Video 24, 25
Elevator 3; second floor lobby.
Mr. Elie gets on the west elevator on the 8th floor; gets off on the second floor.
23:52
Video 30, 32, 33
2nd floor lobby; east laundry room; west laundry room
After accessing the laundry room from both the east door and attempting to do so from the mail room, Mr. Elie presses the elevator button but goes back into the laundry room. At the same time Mr. Harvey walks out of the bathroom attached to the west laundry room, checks the door into the east laundry room, and returns.
22:27
Video 34, 35, 36, 37, 38
East laundry room; west laundry room.
Mr. Elie enters the east laundry room, goes into the west laundry room where he looks at his phone and takes a chair.
22:35
Video 43, 44, 45
West laundry room; east laundry room.
Mr. Elie removes laundry from washing machine; transfers it to a drier. He leaves through the east laundry room.
22:51
Video 48, 49, 50, 51
West laundry room; east laundry room.
Mr. Harvey comes out of the washroom in the west laundry room; searches through the garbage; goes back into the bathroom.
22:53
Video 56
West laundry room.
Mr. Harvey opens the drier where Mr. Elie has left his clothes. He takes something into the bathroom.
22:09
Video 63
2nd floor lobby.
Mr. Harvey retrieves the fire extinguisher from the east elevator. Mr. Harvey testified at trial that he wanted the fire extinguisher for defensive purposes.
2300
Video 73, 74
East laundry room.
Mr. Harvey enters the east laundry room carrying a fire extinguisher; goes into the west laundry room, leaves it in the bathroom.
23:38
Video 95, 96, 100
East laundry room, west laundry room
Marie Doyon, a resident of 155 Balliol, enters the laundry room. Mr. Harvey encounters her; they appear to have an interaction. Ms. Doyon testified at trial that they discussed COVID, music, and the fact that Ms. Doyon is a pharmacist. The conversation made her uncomfortable.
23:41
Video 106, 107, 108, 110, 111
Elevator 3; 2nd floor lobby; mail room; east laundry room.
Mr. Elie takes the elevator from the 8th floor to the second floor with his laundry basket. He briefly looks in the mail room. He then goes into the east laundry room.
23:42 Video 112, 113, 114
West laundry room
Mr. Elie enters the west laundry room. Mr. Harvey and Ms. Doyon are present, although Ms. Doyon leaves. He unloads his laundry from a drier and picks up the item that Mr. Harvey left on the floor. He folds his laundry using the table in the laundry room. Mr. Harvey does not appear to have any interaction with Mr. Elie. Prior to leaving, Mr. Elie looks for something around his drier and in the other driers.
23:47
Video 115, 120, 121, 123, 125, 127
East laundry room; 2nd floor lobby
Mr. Elie leaves the laundry room through the east laundry room door carrying his laundry basket. He walks around and looks in the mail room. He then presses the up-elevator button. While he is waiting, Mr. Harvey walks into the 2nd floor lobby where Mr. Elie is waiting for the elevator. The west elevator door opens, and Mr. Elie gets in. When the elevator door closes Mr. Harvey presses both the up and down elevator buttons. The east elevator door opens, and Mr. Harvey goes in and out of the elevator. While in the elevator he presses the buttons for every floor. At the same time, Mr. Elie presses the 8th floor button in the west elevator, but it goes instead to the 2nd floor. At 2:14 of video 115 the west elevator door opens. Mr. Harvey is talking and emphasizing with his hands to Mr. Elie, who is in the elevator. Mr. Harvey prevents the elevator door from closing 4 times. Mr. Elie continues to press the button for the 8th floor.
Mr. Harvey testified that Mr. Elie told him that he knew he should not be in the building. Mr. Harvey asked how he could know that, and asked who the fuck did Mr. Elie think he was? Mr. Elie then said he knew that Mr. Harvey stole his laundry. Then he said that if Mr. Harvey did not give him back his laundry, he was going to get his friend, and they were going to come down and kill him. He then called Mr. Harvey stupid and used the n-word. Mr. Elie left the elevator and went to the laundry room and Mr. Harvey followed him.
Mr. Harvey testified that Mr. Elie tried to stop him from coming in the laundry room. He pushed his way in because he did not expect that. He said, “what the fuck why did you do that”. Mr. Elie said “I’ve had enough of your games I’m going to call the police and have them shoot you.”
Mr. Harvey then gets into the elevator. He continues to talk to and gesture to Mr. Elie. Mr. Harvey appears very agitated. Mr. Elie gets off the elevator and walks towards the east laundry room. Mr. Harvey follows him.
Mr. Harvey testified that Mr. Elie told him that he couldn’t get on the elevator. He put his hand in the door to stop it from closing. He was triggered but cannot explain how. He disagreed that he ever said, “is it because I’m a black man”. He testified that Mr. Elie slammed the door into the east laundry room in his face, and he was not thinking clearly. He was upset about what Mr. Elie had said. He agreed that he taunted Mr. Elie as he walked away from him in the laundry room. As he was going through the passage Mr. Elie said he would call the police and have them come and shoot Mr. Harvey. He became angry, the angriest he had ever been in his life. It was a combination of anger and fear and panic. Mr. Harvey agreed that he dragged Mr. Elie to the bathroom to humiliate him.
Ms. Doyon testified that her apartment was on the second floor, near the laundry room and the mail room. She testified that she heard a conversation. One voice said: “I didn’t touch your laundry, I was only talking to the lady.” There was a pause, and the voice said, “was it because I’m black”. She testified that she later heard screaming and tried to find the superintendent.
23:50
Video 128
East laundry room
Mr. Elie enters the east laundry room. He unsuccessfully tries to prevent Mr. Harvey from getting into the laundry room. Mr. Harvey continues to talk to Mr. Elie in a very agitated manner. Mr. Elie walks into the west laundry room. Mr. Harvey follows him.
23:50
Video 129
West laundry room
Mr. Elie walks into the west laundry room. Mr. Harvey follows him. Mr. Harvey punches Mr. Elie in the head from behind. Mr. Elie falls to the floor. Mr. Harvey kicks him. He punches Mr. Elie six times and then kicks Mr. Elie four times. He bends down and punches Mr. Elie several more times. He kicks Mr. Elie multiple times and stomps on his body – it is unclear which part of Mr. Elie’s body because the camera is blocked by a drier. He empties Mr. Elie’s laundry basket on him and then stomps on him more. Mr. Harvey then drags Mr. Elie into the washroom.
Mr. Harvey testified that he punched Mr. Elie when Mr. Elie said he was going to call the police and have them shoot him. He had an explosion of anger, and he released that on Mr. Elie. He was not thinking that he wanted Mr. Elie to die. He was angry and fearful. He was not aware of how many times he hit Mr. Elie. He was swearing at Mr. Elie, but he was not trying to kill him. He dumped his laundry on Mr. Elie just as a reaction and has no explanation. He dragged him to the bathroom to humiliate him. He wanted Mr. Elie to be ashamed of what he said to him. He also wanted Mr. Elie to experience sleeping and waking up in a washroom.
It appears from the time stamps that Mr. Elie and Mr. Harvey were in the washroom and out of sight of the cameras for about five minutes.
23:57
Video 130, 131, 132, 133
West laundry room; east laundry room
Mr. Harvey punches Mr. Elie, who is standing outside the laundry room. He hits Mr. Elie with the fire extinguisher at least twice. Mr. Elie is very wobbly. Mr. Elie holds on to the fire extinguisher, however, Mr. Harvey tries to take it from him. Using punches and kicks, Mr. Harvey takes the fire extinguisher. He then attacks Mr. Elie with the fire extinguisher. He lands several blows on Mr. Elie’s head and torso, while Mr. Elie tries to walk away. Mr. Elie eventually falls to the floor in the east laundry room. Mr. Harvey turns off the lights. He continues to attack Mr. Elie, striking Mr. Elie on the head and torso while Mr. Elie lies helpless on the floor. He then drags Mr. Elie a short distance. He takes a metal garbage can and empties the garbage on Mr. Elie. He then strikes Mr. Elie several times with the garbage can.
Mr. Harvey testified that after he dragged Mr. Elie into the washroom, he turned his back on Mr. Elie. Mr. Elie got up and attacked him from behind and they punched and kicked each other. Mr. Elie picked up the fire extinguisher and began to strike him. He eventually ripped it out of Mr. Elie’s hands and began to pull him out of the room. He then began striking Mr. Elie with it. Mr. Harvey testified that he was consumed with anger, panic, and anxiety.
00:02
Video 134, 135
West laundry room; mail room.
Mr. Harvey exits the west laundry room through the mail room. Stays in the mail room.
00:03
Video 138, 139
Mail room.
Mr. Harvey takes a can of pop from the pop machine; he uses the can to smash and disable the surveillance camera in the mail room. He leaves the mail room and goes to the second-floor lobby. He presses the elevator button. He gets into the west elevator.
00:03
Video 140
Elevator 3
Rohina Rawan gets into the west elevator. She presses the button to the 15th floor. Mr. Harvey gets on at the second floor. Blood is visible on his hands. He is dishevelled. His pants are falling down. He is holding the pop can. He and Ms. Rawan have a conversation.
Ms. Rawan testified at trial that Mr. Harvey entered the elevator on the 2nd floor. His pants were ripped, and he was not wearing a shirt. His pants slipped and she saw his genitals. Mr. Harvey apologized. She noticed that his hands and arms were drenched in blood. She asked if he was okay, and he said that a white man had just jumped him. She asked if he needed help, but he said he was going to call his mother. She asked him if he wanted her to call his mother, but he told her he did not want to and backed off. He asked her name. She lied and said “Renee”. She also lied about where she lived. He told her that he wanted a witness and asked her to meet him in ten minutes. She agreed but simply wanted him out of the elevator. Mr. Harvey got off the elevator on the 7th floor. As he left the elevator she heard him use the word “Bitch”. She assumed he meant her.
00:05
Videos 142, 143, 144, 145
Elevator 1; elevator 3; 2nd floor lobby.
Mr. Harvey gets on the east elevator on the 7th floor. He is carrying a fire extinguisher. He presses all of the buttons in the elevator and gets off on the 5th floor. He gets on the west elevator a minute later and gets off on the second floor. He is still carrying the fire extinguisher. He gets out and walks toward the east laundry room but enters through the mail room and the west laundry room instead. He goes directly to the east laundry room, carrying the fire extinguisher.
Police officers later testified that a firehose cabinet was open on the 7th floor and a fire extinguisher missing. There was a can of orange pop on the floor. There were red stains on the cabinet and the carpet.
Mr. Harvey testified that he went to the 7th floor and took another fire extinguisher for protection.
00:07
Videos 146, 147
East laundry room; west laundry room.
Mr. Harvey enters the east laundry room. Mr. Elie is standing up against a washing machine. Mr. Harvey strikes Mr. Elie on the back of the head and torso with the fire extinguisher at least 8 times. Mr. Elie collapses on the floor. He sits up against the wall. Mr. Harvey goes back into the west laundry room and into the washroom.
Mr. Harvey testified that when he came back to the laundry room and saw Mr. Elie standing there it must have made him angrier. He attacked out of anger and irrational fear.
00:08
Video 149
West laundry room.
Mr. Harvey lights a fire in a garbage can in the west laundry room. He takes a fire extinguisher and sprays it at the lit garbage can. He then goes back into the east laundry room.
00:09
Video 150, 151
East laundry room
Mr. Elie is sitting beside a washing machine. Mr. Harvey sprays him with the fire extinguisher. Mr. Elie is moving slowly. Mr. Harvey strikes Mr. Elie in the head four more times with the fire extinguisher.
00:10
Video 152
West laundry room
Mr. Harvey moves the lit garbage can to the east laundry room. He then takes the fire extinguisher and randomly sprays the west laundry room and the washroom.
01:37
Video 153, 155
2nd Floor lobby, northwest exit
Mr. Harvey leaves the mail room and goes down the stairs to exit the building. A police officer later found a bloodstain on the push-bar of the exit door.
39At no point on video did Mr. Elie ever punch or kick Mr. Harvey, or even try to land a blow on him.
40When he left the building, Mr. Harvey threw items in a dumpster at 118 Balliol Street. Surveillance cameras recorded him throwing those items. The police seized a blue sweater from the dumpster. The sweater had bloodstains with a male DNA profile. Mr. Elie could not be excluded as the source of the DNA profile on the sweater. When the police arrested Mr. Harvey, they seized his shoes. One shoe had a DNA profile. Mr. Elie could not be excluded as the source of the DNA profile on the shoe.
41After leaving the area, a security guard from another building called 911 for Mr. Harvey. Mr. Harvey got on the phone. He told the despatcher that he had been in a car accident. He attended Toronto East General Hospital and told hospital staff that he had been in a car accident. He was arrested on May 15, 2020.
42Dr. Linda Kocovski, a forensic pathologist, performed the autopsy of Mr. Elie. She concluded that he died of blunt force trauma to the head and neck. She did not find soot in his windpipe, leading to the conclusion that he was no longer breathing by the time the smoke was around his head.
43Mr. Harvey admitted at trial that he was the person in the video who attacked Mr. Elie. He testified that he was not trying to kill him, and that he did not intend for Mr. Elie to die. Further, Mr. Harvey testified that he did not think Mr. Elie was dead when he left the building, in part because he has been in many fights and has seen people walk away from violent attacks.
44When asked why he started hitting Mr. Elie, Mr. Harvey said that Mr. Elie threatened to have the police come and shoot him. In that moment he had a flash that the police would shoot him down. He had an explosion of panic, fear, and anger and he released that on Mr. Elie. In the hour before it happened, he was angry, chaotic, and emotionally unstable.
45Mr. Harvey told Dr. Chatterjee that he was not high or drunk when he killed Mr. Elie. He had last smoked weed at 7:00 or 8:00 that morning, several hours before the incident. He told Dr. Chatterjee that he was not hearing voices, but he was feeling paranoid because as a homeless person he could be attacked or robbed at any time.
(e) Dr. Pomichalek’s Evidence
46What follows is a condensed version of my summary of the evidence of Dr. Milan Pomichalek as set out in my instructions to the jury.
47Dr. Pomichalek is a forensic and clinical psychologist. He testified for the defence at Mr. Harvey’s trial. He assessed Mr. Harvey at the request of the defence. He met with Mr. Harvey, reviewed Mr. Harvey’s medical records going back to 2012, reviewed videos and still shots of the killing of Mr. Elie, and police occurrences. He also interviewed several people associated with Mr. Harvey.
48Dr. Pomichalek was of the view that Mr. Harvey did not have bipolar disorder, and that he was not a psychopath. He was also of the view that Mr. Harvey did not have post-traumatic stress disorder (“PTSD”), although he did have components of PTSD.
49Dr. Pomichalek conducted psychological tests, including the Minnesota Multiphasic Personal Inventory, 2nd Edition (“MMPI2”) to assist in making a diagnosis. The test indicated that Mr. Harvey demands validation and approval in a way that makes others reluctant to give it to him. That makes him resentful, angry, hypersensitive to criticism, moody, unstable, and restless. He is quick to feel rejected and criticized and is immature in his coping abilities and defence mechanisms. The core aspect of his personality is intense anger and paranoid tendencies associated with it. He is prone to impulsive and self-justified anger outwards especially where he feels wrong or slighted. These outbursts are not hostile. They are pressure pushing for a discharge. People who have this profile are often confused about why they do things.
50Dr. Pomichalek also used the Personality Assessment Inventory, 2nd Edition (“PAI2”), which tests for a spectrum of mental problems. That test indicated that Mr. Harvey has a number of problematic personality traits, such as the idea that he was abandoned or rejected, or that others are not meeting his needs. He is involved in intense and volatile relationships and very sensitive to rejection. He is prone to impulsive, risky, and self-harmful behaviour including substance abuse. Mr. Harvey also has a history of anti-social behaviour but the PAI2 did not indicate a diagnosis of anti-social personality disorder. The test indicated that Mr. Harvey has considerable problems with anger, aggressive behaviour, and impulse control. The PAI2 indicated major depression, to the level where depression is a mental illness. Dr. Pomichalek also conducted the Anger Disorders Scale test (“ADS”). The test is designed to assess dysfunctional anger. Dysfunctional anger is anger that cannot be controlled. Mr. Harvey tested in the 77th percentile which is slightly above average.
51Dr. Pomichalek ultimately diagnosed Mr. Harvey with borderline personality disorder (“BPSO”). BPSO is characterized by instability of affect, disorganized thinking, and intense anger. It is called “borderline” because it initially referred to the border between neurosis and psychosis. Mr. Harvey has problems with identity; impulsive behaviour, which is manifested in drug use and sexually reckless actions; overspending; suicidal gestures or behaviours; affective instability due to marked reactivity; inappropriate intense anger that is difficult to control; and transient stress-related paranoid ideation. People with BPSO can also have psychotic episodes where they misperceive reality, they are delusional, and they experience transient perception. Dr. Pomichalek also diagnosed Mr. Harvey with major depressive disorder, and substance abuse disorder.
52On the issue of diminished capacity, Dr. Pomichalek opined that Mr. Harvey was stimulated with intense anger such that his ability to control his emotions was limited. His ability to step back and think about what he was doing was so impaired that it was almost quasi-automatic. He was so focussed on what he perceived as a threat that he did not foresee the consequences of his actions. In Dr. Pomichalek’s view, in his state Mr. Harvey was incapable of forming the intent to kill. That was so, even though he was doing purposeful things, like finding and firing a fire extinguisher.
(f) The Jury’s Verdict And My Findings Of Fact
53The jury was instructed the analyse the evidence by asking the following questions:
Question 1: Did Rico Harvey Cause The Death Of Peter Elie?
Question 2: Did Rico Harvey Cause The Death Of Peter Elie Unlawfully?
Question 3: Did Rico Harvey Have The Intent Required For Murder?
Question 4: Does The Defence Of Provocation Apply?
Question 5: Did Rico Harvey Commit First Degree Murder?
54The defence conceded that Mr. Harvey caused the death of Mr. Elie. The defence also conceded that Mr. Harvey caused the death of Mr. Elie unlawfully. Accordingly, the jury was required to analyze whether Mr. Harvey had the intent required for murder. The jury was instructed in the usual fashion that the Crown was required to prove beyond a reasonable doubt either:
That Mr. Harvey meant to cause Mr. Elie’s death; or,
That Mr. Harvey meant to cause Mr. Elie bodily harm that was likely to cause his death and was reckless whether death ensued or not.
55The jury, or some members of the jury, may have decided at that point that they were not satisfied beyond a reasonable doubt that Mr. Harvey had one of the two intents required for murder. The jury was instructed that at that point they were to find Mr. Harvey not guilty of murder but guilty of manslaughter.
56Other members of the jury may have decided that Mr. Harvey did have one of the two intents required for murder. If so, the jury was required to determine if the defence of provocation applied.
57It is obvious that members of the jury did not go on to consider first-degree murder. Members of the jury either decided that Mr. Harvey was not guilty of murder based on a lack of intent or that he was not guilty of murder based on the defence of provocation.
58Pursuant to s. 724(1) of the Criminal Code a judge may accept any information disclosed at trial, on sentencing, or agreed upon by the prosecution and the defence. Subsection 742(2) states:
724 (2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
59In determining sentence, a judge may make findings of fact on a balance of probabilities. The Crown, however, is required to prove aggravating facts beyond a reasonable doubt: Criminal Code, s. 742(3)(d) and (e).
60As the trial judge, I am bound by the express and implied findings of the jury’s manslaughter verdict. Where, however, the factual implications of the jury’s verdict are ambiguous, my duty is to come to my own independent determination of the facts: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 17-18. That describes the situation here. It is not clear whether the jury (or some members of the jury) accepted the defence of provocation or whether the jury (or some members of the jury) found that Mr. Harvey did not have the intent required to commit murder. Jurors may have arrived at a verdict of manslaughter by different routes. I must make my own determination for the purposes of sentencing.
61The jury was instructed as follows on the defence of provocation:
To decide whether the Crown has proved beyond a reasonable doubt that the defence of provocation does not apply, you will have to consider the following five questions:
Has the Crown proved beyond a reasonable doubt that Mr. Elie did not engage in conduct that constituted an indictable offence punishable by five years or more?
Has the Crown proved beyond a reasonable doubt that Mr. Elie’s conduct was not sufficient to deprive an ordinary person of the power of self-control?
Has the Crown proved beyond a reasonable doubt that when Mr. Harvey killed Mr. Elie, he had not lost the power of self-control as a result of Mr. Elie’s conduct?
Has the Crown proved beyond a reasonable doubt that Mr. Elie’s conduct was not sudden?
Has the Crown proved beyond a reasonable doubt that Mr. Harvey did not act suddenly and before there was time for his passion to cool?
If each of you finds that the answer to one or more of these questions is “yes,” the defence of provocation fails. It does not matter if you do not all agree on which of these questions is answered “yes.” In that case you must go on and consider the question of whether Mr. Harvey committed first degree murder.
If you all agree that the answer to all five questions is “no”, then the conditions for provocation are present and you must acquit Mr. Harvey of murder but find him guilty of manslaughter.
62Question 1 engaged the offence of threatening death or bodily harm. The jury had to find that Mr. Elie made a threat and made it knowingly. Questions 2 and 3 engaged the issue of the power of self-control. Question 4 engaged the issue of whether Mr. Elie’s conduct was sudden. Question 5 engaged the issue of whether Mr. Harvey acted suddenly and before there was time for his passion to cool.
63Four of the five questions turn largely on Mr. Harvey’s credibility. I find that he was not credible. I find that he lied about material points, and I reject the defence of provocation for the purposes of sentencing. In my own independent evaluation of the evidence, I find that the Crown proved beyond a reasonable doubt that Mr. Elie did not engage in the conduct set out in Question 1 or Question 2.
64As noted, the defence of provocation turns almost exclusively on Mr. Harvey’s credibility. Mr. Harvey has a pattern of not telling the truth. There are examples in the medical records. He obviously lied on the 911 call to first responders after killing Mr. Elie, although I accept that may have had more to do with panic over his situation than anything else. He was untruthful with Dr. Pomichalek at points. For example, he told Dr. Pomichalek that Mr. Elie came out of the bathroom with the fire extinguisher. That was clearly untrue, and Mr. Harvey was forced to backtrack when shown the video in cross-examination.
65The following passage appears in Dr. Penney’s report (the source, presumably, being Mr. Harvey):
He encountered the victim in the laundry room of the building, and had a verbal confrontation with him about the victim’s laundry (that Mr. Harvey had taken some of it) and Mr. Harvey’s unauthorized presence in the building. This escalated to a physical fight whereby the victim was hit, punched, and kicked, and also assaulted with a piece of a broken table leg. The victim tried to defend himself with a fire extinguisher, but Mr. Harvey obtained the extinguisher and used it to further assault the victim.
66The confrontation did not “escalate” into a physical fight. That was untrue. Mr. Harvey attacked Mr. Elie from behind while Mr. Elie was walking away. Moreover, Mr. Elie did not try to defend himself with a fire extinguisher. Mr. Harvey testified at trial that when he dragged Mr. Elie into the bathroom, Mr. Elie attacked him. I do not believe Mr. Harvey’s evidence on this point. The bathroom had blood on the walls and on the floor. The video clearly shows Mr. Harvey dragging Mr. Elie into the bathroom. At that point Mr. Harvey had punched, kicked, and stomped Mr. Elie. He had struck Mr. Elie in the head with a fire extinguisher. Mr. Harvey continually attacked Mr. Elie during the entirety of the transaction caught on the video. Mr. Elie had not landed a single blow on Mr. Harvey in return; indeed, Mr. Elie never fought back. He simply tried to get away from Mr. Harvey and put his hands up in a defensive manner.
67When they left the bathroom Mr. Elie never struck Mr. Harvey. He only held on to the fire extinguisher. Mr. Harvey eventually got the fire extinguisher back by punching and kicking Mr. Elie. Mr. Harvey then proceeded to strike him again with the fire extinguisher. I note that Mr. Harvey was the larger and stronger man. By his own admission he had been in many fights. He told Dr. Chatterjee that he “considered himself a good fighter.” He testified at trial that at the Toronto South Detention Centre he has not been in many fights because he assumes that his size and power deter people. There is no evidence, nor does the video demonstrate, that Mr. Elie was an experienced fighter. Yet according to Mr. Harvey, the only time that Mr. Elie attacked him was when the two men were out of sight of the camera in the bathroom. That is much too convenient. I find it is an obvious lie. That affects Mr. Harvey’s credibility generally.
68Mr. Harvey told several people, including Ms. Rawan, that a white man had “jumped” him. That was also obviously untrue. It was Mr. Harvey who “jumped” Mr. Elie – he sucker-punched Mr. Elie from behind, not the other way around. I mean no disrespect to the memory of Mr. Elie, but nothing about him on the video – and no other evidence that came out at trial – suggests that he was a fit person and an experienced fighter. Yet according to Mr. Harvey, the only time Mr. Elie attacked him was when they were in the bathroom and off camera. I reject that evidence. I find Mr. Elie never attacked Mr. Harvey at any point.
69I also do not believe that Mr. Elie told Mr. Harvey that he was going to have the police come and shoot him, or that he was going to bring his friend to kill him. When I evaluate all the circumstances, it is much more likely that Mr. Elie confronted Mr. Harvey about missing laundry and Mr. Harvey’s unauthorized presence in 155 Balliol Street. Mr. Harvey admitted to taking some of Mr. Elie’s laundry. Indeed, the surveillance video plainly shows Mr. Harvey taking some of Mr. Elie’s laundry. Mr. Harvey was in the laundry room when Mr. Elie was sorting his laundry. I find that to Mr. Elie it would have been obvious that Mr. Harvey did not belong in the building – as it was obvious to Ms. Doyon and Ms. Rawan. What was a dishevelled and disorganized man doing late at night in the laundry room when he obviously was not doing laundry? Furthermore, Mr. Elie was trying to get away from Mr. Harvey. He was trying to close the elevator door while Mr. Harvey kept propping it open and apparently talking at Mr. Elie. As noted, Mr. Harvey was dishevelled. He was likely expressing disorganized thoughts to Mr. Elie. Mr. Elie likely confronted Mr. Harvey about his laundry and his presence in the building when they first encountered each other (when Mr. Elie was in the elevator). The surveillance video, however, clearly shows that Mr. Elie quite quickly decided that he wanted to get away from Mr. Harvey and tried to do so.
70I also note that Mr. Harvey had encountered the police many times. He was very experienced at dealing with the police. The police had usually taken him to hospital because of obvious mental disorders, or because of a form under the Mental Health Act. Mr. Harvey had only occasionally been taken to jail. I have no difficulty finding that Mr. Harvey knew perfectly well – even in his disorganized state – that if the police came for him again at 155 Balliol Street, they were not going to shoot him simply because Mr. Elie told them to.
71I also do not believe that Mr. Elie ever told Mr. Harvey that he was going to get his friends and kill him. Although appearances can obviously be very deceiving, Mr. Elie was wearing a t-shirt, shorts, flip-flops, and carrying a laundry basket. He certainly would not have appeared to most people as someone who could corral some friends and have them go after Mr. Harvey. I seriously doubt that Mr. Harvey would have taken such a comment seriously, even if Mr. Elie had said it – which I do not believe he did. I do not believe it because it is simply inconsistent with Mr. Elie’s entire demeanour on the surveillance video. He was plainly trying to de-escalate and get away from Mr. Harvey after initially encountering him. It makes no sense that he would have tried to provoke Mr. Harvey by threatening him. I do not believe Mr. Harvey on this point. I think it would have been obvious to Mr. Harvey, even in his disorganized state, that Mr. Elie did not present a threat.
72I also do not believe that Mr. Elie used a racial slur when he spoke to Mr. Harvey. After the assault, Mr. Harvey told paramedics that he had been in a motor vehicle accident. He did not mention a racial epithet. Although he told Ms. Rawan that a white man had “jumped” him, he did not say anything to her about a racial slur. 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 either). In fact, Mr Harvey did not mention a racial epithet to anyone until he told Dr. Pomichalek years later that Mr. Elie had used one. Furthermore, Ms. Doyon testified that she heard someone say, “is it because I’m black?” or words to that effect. Mr. Harvey denied saying that. I prefer Ms. Doyon’s evidence on this point. She was a disinterested witness who could not have had any idea of the significance of that piece of evidence. This evidence directly contradicts Mr. Harvey’s assertion that Mr. Elie used a racial slur.
73I find that Mr. Harvey concocted his evidence on this point. Mr. Elie did not use a racial slur.
74Accordingly, I find that the Crown proved beyond a reasonable doubt that the defence of provocation did not apply. The answer to Question 1 (and question 2) in the provocation analysis is “yes”. Since I reject provocation as a defence, I find that the manslaughter verdict was based Mr. Harvey being incapable of forming the intent to kill at the moment of Mr. Elie’s death.
(g) Mr. Harvey’s Mental Health Since May 2020
75Following his arrest on May 15, 2020, Mr. Harvey was displaying signs of aggression, paranoia, anxiety, and depression. He was initially seen by a nurse at a detention facility on May 16, 2020. He was very hostile. He was fixated on “beating up others” if he did not get medication. He reported that he had not taken his medications. Dr. Penney summarized his state in her report:
Following his arrest and incarceration, Mr. Harvey was seen by a psychiatrist at the Toronto South Detention Centre (Dr. K. Patel). To Dr. Patel, Mr. Harvey reported experiencing low mood, anxiety, “extreme aggression”, and “extreme paranoia”. He stated he had “anger issues” and was very unhappy with being in jail. Mr. Harvey reported that he usually "solves problems with violence" but explained that he was “controlling” himself because of the serious nature of his charge. Mr. Harvey also reported experiencing psychotic symptoms, including auditory hallucinations, which were sometimes commanding in nature and directing him to harm others. He described seeing “faint images" before going to sleep and upon waking, and spoke about receiving "subliminal messages" from the television. Symptom malingering was queried at this point in time.
76He was placed on the following medications: Lurasidone again (as noted, an anti-psychotic medication); Trazodone again (as noted, an anti-depressant); and Quetiapine (again, an anti-psychotic). He also took anti-diabetes medication.
77By 2021 Mr. Harvey was no longer hearing auditory hallucinations and was slower to anger. He was, however, having sleep problems and was still depressed. His medications were tweaked and, in some cases, changed. He reported to Dr. Penney in 2024 that he was feeling supported by his family and interested in continuing his medication regime. He reported to Dr. Chatterjee that he had been quick to anger before taking medication, but that since he’s been taking it regularly for four years it takes a lot longer for him to become angry. He feels that he handles difficult situations better now. By November 2021 medical reports stated that his schizophrenia was “well managed” with his current medications. As of his last assessment by psychiatrists at the Toronto South in May 2024 he was stable on Lurasidone, Mirtazapine (Remeron, as mentioned, an anti-depressant), and Divalproex, an anti-seizure medication that is also used to treat bi-polar disorder.
78At the time of his assessment by Dr. Chatterjee in 2025, Mr. Harvey was taking medication for Type 2 Diabetes. He was also taking Latuda, Remeron (an anti-depressant), and Epival (a mood stabilizer). He reported to Dr. Chatterjee that he had been taking his medication and engaging in self-reflection. He was trying to change his ways. He felt that the medication assisted him with anger control.
Dr. Klassen’s Report
79Dr. Klassen was retained by defence counsel prior to trial to determine whether a “not criminally responsible” finding was open to Mr. Harvey. Dr. Klassen’s view was that Mr. Harvey was not NCR but that his mental illness was a driver of the actions when he committed the index offence. Dr. Chatterjee excerpted the key part of Dr. KIassen’s report in her report:
…I am not in a position to support a finding of not criminally responsible due to mental disorder. It is however, possible, or even probable that active symptoms of mental illness contributed to this gentleman’s emotional dysregulation and disinhibition at the material time. While, again, Mr. Harvey does not implicate symptoms of mental illness as drivers of his actions, it’s my sense that Mr. Harvey, now and at all times in his history, has likely lacked insight into his posited bipolar disorder, specifically mania, and when he’s spoken of having a mental illness, or having mental illness symptoms these disclosures should not be understood to suggest insight, rather may have been made, again, for the possible exculpatory value. Mr. Harvey has really never self-identified as having manic symptoms.
Dr. Penney’s Report
80Dr. Stephanie Penney is a psychologist who prepared a report as part of the assessment conducted by Dr. Chatterjee. She conducted psychological testing. Mr. Harvey was still on the regime of anti-psychotic and anti-depressant medication at the time Dr. Penney conducted the tests. She interviewed Mr. Harvey for about 3 ½ hours in November 2024. She conducted the following tests:
Anger Disorders Scale (ADS), a test that identifies clinically dysfunctional anger. Mr. Harvey scored in the 26th percentile, which is lower than 74% of similarly aged males. He scored highly on one subscale measuring whether he feels resentful over unfair or unequal treatment.
Barratt Impulsiveness Scale-11 (BIS-11 or 11th Edition), a test that assesses impulsiveness. It measures three domains of impulsiveness: cognitive impulsiveness or making quick decisions; motor impulsiveness or acting without thinking, and non-planning impulsiveness or a lack of forethought. He was within the normal range for all three domains.
Shipley-2 (Shipley 2nd Edition), a test that estimates intelligence. Mr. Harvey scores in the average range.
Personality Assessment Inventory (PAI), a test that measures adult personality and psychopathology. It covers a wide range of items, including affective, somatic, and psychotic symptoms, substance abuse, anti-social and borderline personality disorders, and anger and aggression. Mr. Harvey engaged in some impression management. As Dr. Penney put it, he “may have attempted to portray himself in an overly negative or pathological light.” The test revealed high levels of depression, feelings of sadness, loss of pleasure, and feelings of worthlessness. He experiences physiological indicators of anxiety. He is highly self-critical and pessimistic. The test showed heightened feelings of anger and resentment, relationship instability, and depressive symptoms.
Structured Inventory of Malingered Symptomology (SIMS), a test designed to detect malingering. Dr. Penney carried this test out because of the original query of malingering after arrest, as well as Mr. Harvey’s potential attempt at impression management. Malingering at the extreme “is defined as the intentional production of false or significantly exaggerated physical or psychological symptoms that is motivated by external incentives (e.g., financial gain, avoidance or reduction of legal consequences).” His score was slightly above the cutoff for suspected malingering. Dr. Penney’s view was that his score was primarily within the domain of memory impairment but inconsistent with impairment consistent with neurological injuries.
Dr. Chatterjee’s Report And Evidence
81Dr. Chatterjee’s very comprehensive report summarized much of the available information about Mr. Harvey. She recounted the history captured by Drs. Klassen and Pomichalek. She evaluated the testing conducted by Dr. Penney. She summarized the numerous encounters with the hospital system and the numerous psychiatric diagnoses over the years. She also summarized Mr. Harvey’s many encounters with the justice system and the police. Dr. Chatterjee summarized the circumstances surrounding the index offence. Finally, she diagnosed Mr. Harvey and opined on his future risk.
82Dr. Chatterjee noted that Mr. Harvey indicated he would take any counselling and drugs that were recommended for his mental stability. At the time of the assessment, he reported no auditory hallucinations, mania, or sleeplessness. He did have a low mood but was feeling hopeful although he also reported feeling unhappy. He reported no suicidal or violent ideation. He had symptoms associated with obsessive compulsive disorder, generalized anxiety disorder, or post-traumatic stress disorder. Ms. Wallace, Mr. Harvey’s mother, noted a great improvement in him since 2021. She believed that Mr. Harvey plans to stay on his medications indefinitely.
83Dr. Chatterjee testified and was cross-examined.
84Dr. Chatterjee noted that Mr. Harvey has had two periods of stability. The first period was for about a year in 2018 and 2019 where he had employment and housing. His mother and girlfriend monitored his medication compliance. He took fewer illegal substances. That period of stability ended when he decided to go off his medication. The result was homelessness, violence, and ultimately the index offence. The second period of stability has been in custody. After about a year of disinhibited behaviour, Mr. Harvey has settled down to a monitored regime of pharmacological compliance. He has not incurred institutional misconducts or been in trouble generally during this time.
85During that first year, and before the full effects of pharmacological intervention were felt, Mr. Harvey’s behaviour in the institution was dysfunctional, disorganized, and disinhibited. He was angry and aggressive. He had clear symptoms of psychosis (paranoia, auditory hallucinations, referential delusions) and disinhibited behaviour, such as masturbating in the common area. After about a year, he was ultimately stabilized.
86Dr. Chatterjee diagnosed Mr. Harvey with three illnesses: schizoaffective disorder – bipolar type; polysubstance abuse disorder; and antisocial personality traits.
87Dr. Chatterjee described schizoaffective disorder – bipolar type as a major mental illness that exists where a person meets the criteria for schizophrenia as well as a major mood episode, such as mania or depression. It has a prevalence of about 0.3% in the community. She went on to state in her report:
An individual with schizophrenia suffers from psychosis, which is generally defined as the presence of delusions, hallucinations, grossly disorganized thoughts and behaviour, or some combination of these. Social and occupational decline are often prominent, as are a diminution of their motivation and self care. Symptoms of affective instability or change, as well as a change in cognitive functioning are commonly seen in individuals suffering from this illness.
88Dr. Chatterjee described Mr. Harvey’s clinical picture as “far from straightforward” because of the combination of different illnesses. The second of those illnesses is polysubstance use disorder. Mr. Harvey has likely been suffering from this disorder since he was a teenager. The use of non-prescribed substances such as cannabis and alcohol can “enhance disinhibited behaviour, impulsivity, and mood dysregulation as well as trigger or exacerbate symptoms of an underlying mental illness; both of which has likely occurred with Mr. Harvey.”
89Finally, anti-social personality traits. Maladapted personality traits can affect interpersonal relations, cognitive style, or impulse control. Personality disorders can be exacerbated by stress, unstructured living situations, and substance abuse. The key feature of anti-social personality disorder is a “pervasive pattern of disregard form, and violation of the rights of others.” Mr. Harvey has exhibited several of the features of antisocial personality disorder, such as impulsivity, irritability, aggressiveness, unlawful behaviour, disregard for the safety of others, irresponsibility, and the use of aliases. Dr. Chatterjee testified that she only diagnosed him with anti-social personality traits, rather than the full disorder, because he did not meet all the criteria set out in the DSM.
90I turn next to Dr. Chatterjee’s risk assessment. She used three tests: the PCL-R (Psychopathology Checklist – Revised); the VRAG-R (Violence Risk Appraisal Guide); and the HCR-20 (Historical Clinical Risk Management).
91The PCL-R measures psychopathology. Psychopathology is the variable most strongly associated with risk for violent and non-violent recidivism. Mr. Harvey’s score placed him in the 24th percentile of North American male offenders. The score, however, is not indicative of Mr. Harvey possessing psychopathic traits that might otherwise contribute to his risk of violent recidivism.
92The VRAG-R is recommended for use with people who have a history of violent offending. Mr. Harvey’s score, which was in the 86th percentile, places him at a high risk of reoffending. Dr. Chatterjee noted that his violent offending had occurred against family, strangers, and acquaintances.
93Dr. Chatterjee also used the HCR-20, which is a structured professional judgment tool for considering criminogenic or dynamic factors. The key factors in this tool are his major mental illness; substance abuse; lifestyle instability; and poor coping and problem-solving skills; anti-social personality traits including impulsivity and anger management issues; non-compliance with medication; and the presence of externally imposed monitoring and/or controls. Dr. Chatterjee found that there is potential to effectively manage the risk of violence if criminogenic factors a thoroughly addressed.
94Dr. Chatterjee’s overall assessment is that Mr. Harvey is at a high risk of reoffending. This is her full assessment:
… Mr. Harvey has exhibited a pattern in which he has failed to restrain his behaviour, and he has a risk profile that points towards a likelihood of him causing significant injury, or inflicting severe psychological damage on other persons, through a failure in the future to control his impulses. While recently Mr. Harvey expresses remorse and empathy for his actions, historically his pattern of persistent aggressive behaviour may reflect a degree of indifference, or failure to contemplate, the reasonably foreseeable consequences of his behaviour.
The above-noted risk assessment suggests that Mr. Harvey presents with a high risk of violent re-offending. As regards to whether there is a reasonable expectation of eventual control from a psychiatric perspective, this would appear to hinge on whether he could be considered treatable and whether such treatment offers any hope or assurances that his risk could be managed within the community. [emphasis added].
95Whether Mr. Harvey’s risk can be controlled in the community depends on factors set out by Dr. Chatterjee: his diagnosis and prognosis; his age; his current motivation for treatment; his response to previous treatment; his response to previous supervision; his employment prospects and supports in the community; and his exposure to destabilizers. Dr. Chatterjee summarized his prospects this way:
In summary, Mr. Harvey’s risk of violent recidivism is high if returned to the same circumstances that were present prior to the index offence. There are certainly several risk factors that featured prominently in his offending behaviour. However, many of these risk factors were not adequately addressed in a sustained fashion in the community. Mr. Harvey has seemingly demonstrated the ability to maintain behavioural and mental state stability under structured and supervised circumstances wherein he cannot access substances, is externally monitored, and adheres to prescribed medication. His relative success under these conditions has been most notable while incarcerated, though also evident for about one year in the community. Therefore, from a clinical perspective, with intensive mental health supports, supervision, and monitoring measures in place, it is my opinion that there is a reasonably good possibility that he can be managed in the community in the future.
96Dr. Chatterjee was a most impressive witness. After watching her testify and reading her report, I give her evidence a great deal of weight.
(h) Position of the Crown And Defence And Cases In Support
97The Crown’s position is that Mr. Harvey should be sentenced to a period of incarceration of 16-20 years, followed by an LTSO for 10 years. The Crown relied on cases such as R. v. Morrison, 2015 ONSC 5652, where the offender engaged in random stabbing attacks, one of which resulted in a death. He pleaded guilty. His risk to re-offend was said to be in the moderate range. Justice Nordheimer (as he then was) sentenced him to ten years followed by a ten-year LTSO. In R. v. Clarke, 2012 ONSC 2776, the offender pleaded guilty to manslaughter. He and a confederate killed a woman in the course of a robbery, but did not intend her to die. He received a ten-year sentence for manslaughter and a 2 ½ year sentence for robbery, to be served consecutively. The Crown also relies on R. v. Gould, 2010 QCCS 1679. In that case, the victim was a young woman who objected to the way that the offender was speaking to his girlfriend. He stomped on the victim’s head and killed her. He was sentenced to 15 years followed by a 10-year LTSO. Crown counsel also relied on “aggravated manslaughter” cases such as R. v. Starostin, 2023 ONSC 3677 (11 years) and R. v. Tahir, 2016 ONCA 136 (12 years).
98The defence position is that Mr. Harvey is in or close to a time-served position. The proper sentence for a manslaughter of this brutality is in the range of 8-12 years. Mr. MacDonald suggests that Mr. Harvey should be sentenced to 10 years. He relies on R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, for the proposition that Mr. Harvey’s moral blameworthiness is lower because of his mental illnesses. The defence also relies on R. v. Devaney (2006), 2006 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont.C.A.). In that case, a tenant brutally murdered his landlady when she told him he had to leave to make way for a paying tenant. He stabbed her multiple times and inflicted blows to the head. He had significant alcohol issues. The Court of Appeal upheld a sentence of 11 years less pre-sentence custody.
99In R. v. Clarke, (2003) 2003 28199 (ON CA), 172 O.A.C. 133 (C.A.) the offender was convicted of the brutal stabbing death of an older, frailer person who was likely intoxicated. The jury convicted of manslaughter rather than murder; the trial judge found that there was a reasonable doubt on the issue of provocation. The trial judge sentenced the offender to 14 years, which the Court of Appeal found was outside the proper range of 8-12 years.
100As an illustration, the defence points to R. v. Flores-Romero, 2023 ONSC 5866. The offender was charged with second-degree murder in the brutal beating death of the three-year old child of his fiancée. The jury returned a verdict of manslaughter. My colleague Campbell J., applying the 8–12-year range for “aggravated manslaughter” set out in R. v. Clarke, sentenced the offender to ten years less pre-sentence custody.
101See also: R. v. Wright and Hoo-Hing, 2022 ONSC 5137 (13-year sentence for manslaughter for a home invasion robbery gone wrong); and R. v. Gregory, 2022 ONSC 4985 (10-year sentence for manslaughter for another home invasion robbery gone wrong).
102The defence position is also that given harsh conditions of custody, Mr. Harvey should receive approximately two years of Duncan credit: R. v. Duncan, 2016 ONCA 754. Mr. MacDonald relies on lockdown records from the Toronto South Detention Centre and the Toronto East Detention Centre. The records show that he has indeed been subject to numerous lockdowns. Mr. Harvey also filed an affidavit describing difficult conditions of custody, including being in custody during the COVID epidemic. He described poor sanitary conditions, including infrequent changes of clothing. He also described being on the “supportive care unit” which, it appears, is a form of isolation. I have little difficulty accepting that Mr. Harvey was subject to difficult conditions of incarceration.
103Mr. Harvey has been in custody since May 15, 2020. As of the date of sentencing, January 6, 2026, that is 2063 real days. Enhanced at 1.5:1 that is 3094.5 days or about 8 ½ years: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; Criminal Code, R.S.C. 1985, c C-46, s. 719(3.1). Thus, according to the defence position, Mr. Harvey is in a time-served position. His sentence should be followed up with a long-term supervision order.
(i) Statutory Framework: Principles Of Sentencing
104The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1. The purposes of sentencing are outlined in ss. 718 and 718.2:
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and,
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
105General and specific deterrence have a lesser role to play in cases of diminished capacity. In R. v. Robinson (1975), 1974 1491 (ON CA), 19 C.C.C. (2d) 193 (Ont.C.A.), an often-cited case, the offender was convicted of multiple counts of rape, attempted rape, and indecent assault. He was mentally ill but did not fit the definition of not criminally responsible. Brooke J.A. for the Court of Appeal stated at para. 18:
The case poses special problems for us which really distinguishes it from most cases. This is a case where it is not really accurate to say that the sentence should be a deterrent because others like him lose touch with reality and as such the deterrence of this sentence is of course meaningless to them. Further, the sentence should not proceed on the basis of punishment because the Court should not punish people who commit crimes because of mental illness. The important purposes of the sentence are the protection of the public so long as this man remains in this dangerous state and his early return to the community when he is cured or, to put it another way, rehabilitated. The emphasis must be on the protection of the public, and of course this may be first achieved by his cure, and so the sentence must be of sufficient length to ensure full treatment but of course conversely, if that is not successful, that the public must be protected as best as can be accomplished.
106The proposition is well-illustrated in R. v. Batisse. In that tragic case, a young Indigenous woman was struggling with mental health issues. She had an extraordinarily difficult and abusive upbringing. She was finally in a healthy relationship with a good man. She became pregnant but had a miscarriage. She feared that the loss of the child would cost her the relationship, and she developed a hare-brained scheme to steal a newborn baby. She snuck into a maternity ward dressed in scrubs and stole a newborn. Fortunately, the police were able to recover the baby unharmed within hours and return her back to her parents. The Court of Appeal reduced the 5-year sentence to 2 ½ years. Gillese J.A., for the majority of the Court of Appeal, stated at para. 38:
As this court emphasized in R. v. Robinson, where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive…
107Although Robinson was about the limited applicability of the principles of general and specific deterrence, the last lines of the passage bear repetition:
The emphasis must be on the protection of the public, and of course this may be first achieved by his cure, and so the sentence must be of sufficient length to ensure full treatment but of course conversely, if that is not successful, that the public must be protected as best as can be accomplished. [emphasis added]
(j) Mitigating And Aggravating Factors
108There are many aggravating factors in this case, and few mitigating ones.
109The manner of the crime is highly aggravating. Mr. Harvey administered a beating to Mr. Elie that was lengthy, shocking, brutal, and deadly. There were many chances to de-escalate the situation, and he did not take them. Instead of de-escalating, he ratcheted up the violence at each opportunity. His anger was not justified in any way. There was no provocation.
110Mr. Harvey did not just beat Mr. Elie, he tried to degrade him. There was no racial slur to trigger his anger. That was a lie by Mr. Harvey. The degrading behaviour included dumping a garbage can on Mr. Harvey’s body as he lay helpless on the floor. It also included spraying him with fire retardant. Mr. Harvey himself said he wanted to degrade and humiliate Mr. Elie – and that is the one part of his testimony I accept without hesitation. I accept it because that is clearly what he did, and what is visible in the video.
111Setting a fire in a high-rise apartment building is also extremely aggravating. Had the fire spread, the consequences could have been tragic and devastating. There could have been multiple injuries or fatalities, and Mr. Harvey would have been responsible. I do not accept that Mr. Harvey really tried to put out the fire; and even if he did, the court ought not to credit someone for being a firefighter when he was also the arsonist. The video footage clearly demonstrates that he used the fire extinguisher as an act of humiliation to degrade Mr. Elie. I find this to be a highly significant aggravating factor because of the potential danger combined with the carelessness it showed towards the residents of the building.
112There are some mitigating factors in this case. Mr. Harvey comes from a pro-social background and has a pro-social family. Mr. Harvey enjoys the support of his family, and particularly his mother. It is clear from her testimony that she understands her son, understands the danger he poses to others, and yet still loves him, stands by him, and refuses to simply wash her hands of him. It is also clear from her letter of support, which I read in detail, that, she has been a rock in his corner, and he is lucky to have her. It is clear from her trial testimony that she did everything that she could to get Mr. Harvey the help he needed. His other family members and friends also did what they could to help him. He is lucky to have their support as well.
113Other family members wrote letters in support. Tatiana Wallace, Mr. Harvey’s sister, explained that she will continue to support him while he is incarcerated and reflected on his positive qualities. His cousin, Bryan Porter, also wrote a letter in support. He described his relationship with Mr. Harvey and also promised that he will be there to support him. Mr. Harvey’s aunt, Andrea Porter (Ms. Wallace’s sister) wrote a letter of support. She described how as a young person their children would play together. She also described Mr. Harvey’s behaviour as a child, which, in retrospect, now seem to be the result of mental health issues. She explained that she will continue to stand by Mr. Harvey, visiting him in jail and providing assistance to him. Caston Harvey, Mr. Harvey’s uncle, also wrote a letter in support. He is the brother of Andrea Porter and Sharon Wallace. He described how he got to know Mr. Harvey while living in his sister’s house, and also promised that he will try and support Mr. Harvey while he is incarcerated.
114To their credit, all the members of Mr. Harvey’s family acknowledged the gravity of the crime and did not attempt to minimize it. The members of his family also recognized the pain that Mr. Elie’s family has suffered.
115While I do not have a Morris report, I do consider that Mr. Harvey is a Black man and was relatively young at the time of the index offence. There has been no attempt to suggest a connection between systemic racism and a lower level of moral blameworthiness: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641. Mr. Harvey has mentioned incidents, especially in shelters, where he has been subject to racial slurs. I do take these into account as mitigating factors, although they have limited application in this case.
116Mr. Harvey indicated, when asked if he had anything to say, that he was very sorry. I find Mr. Harvey’s expression of remorse hard to accept. Mr. Harvey maintained at trial that Mr. Elie had provoked him with a racial slur – something I find as a matter of fact did not happen – and that Mr. Elie attacked him in the west laundry room bathroom – something that also did not happen. Mr. Harvey’s decision to lie to the jury about what happened during the event, reduces the weight I can place on his expression of remorse after the fact. While it may be that Mr. Harvey would have preferred that Mr. Elie did not die, in my view he has only a very limited insight into how his behaviour has affected many others in this case. For example, he never mentioned or took responsibility for the extreme danger that he caused when he lit fires in a residential apartment building. Indeed, he seems to have no insight into the danger caused by lighting the fires. I accept that may well be a function of his mental illnesses. Nonetheless, while I take his expression of remorse into account, I only give it very limited weight.
117I give weight to Mr. Harvey’s mental illnesses in the sense that they were front and centre for the jury and formed a critical part of the defence. His illnesses were baked into the verdict and drove the index offence: R. v. Prioriello, 2012 ONCA 63, 288 O.A.C. 198, at paras. 11-12. Mr. Harvey’s mental illness is at the core of this sentencing, and I will have more to say about it when I discuss his prognosis and the protection of the public. As a mitigating factor, however, I give it weight but only limited weight, especially when I come to weigh it in relation to the protection of the public: R. v. Husbands, 2024 ONCA 155, 170 O.R. (3d) 486, at paras. 86-88.
(k) Impact Of The Offence On The Victim And The Community
118Mr. Elie had a loving and supportive circle of family and friends.
119It almost goes without saying that the trauma and heartbreak for any parent to lose a child is beyond description. Maria Stiles, Mr. Elie’s mother, wrote a heartfelt victim impact statement and submitted a poem in memory of her son. Obviously, the loss of her son was difficult and traumatic. The manner of his death broke her heart. She described how Mr. Elie helped take care of his grandfather when he was stricken with Alzheimer’s and in long term care – Mr. Elie ran errands, took care of his laundry, and spent time with him. She was hopeful that Mr. Elie would help to care for her and her husband as they aged, which of course will never happen. Jack Stiles, Ms. Stiles’ husband and Mr. Elie’s stepfather, felt devastated by the loss. He has tried to help his wife, Maria, get through this and it has been very challenging. He says that she is not the person she was before. Sharon Elie, Mr. Elie’s cousin, described how Mr. Elie’s death impacted the wider family. Mr. Elie came to live with Sharon Elie when she was starting high school. She described him as kind, loving, funny, and a person who opened her eyes up to the LGBTQ2+ community. She described the trauma, damage, and agonizing pain that Mr. Elie’s death caused to the entire family.
120Music was a large part of Mr. Elie’s personal and professional world. He created and curated music and videos, working professionally as a DJ. His friend Richard Moore (who Mr. Elie apparently met during a trip to Australia) called him a cornerstone of Toronto’s Gay Village. He worked at several well-known clubs in the Gay Village, including Woody’s. Dean Odorico, the general manager there, called him caring, responsible, and described him as a kind and gentle person. Many of his friends spoke of his warmth, his sense of humour, and his positive energy. His friend Lisa Hulley called him sweet, gentle, and hilarious. She said he entertained, charmed, and catered to the whole village. His friend Andre Thibeault described his generosity of spirit. Mr. Elie was obviously capable of making friends with people from many different walks of life. Paul Sternal, a retired U.S. Air Force colonel, said that Mr. Elie was the first Canadian he became friends with, and because of Mr. Elie, he visited Canada many times.
121Overall, Mr. Elie’s senseless death affected a wide group of people. They are still struggling to understand it and grasp what happened.
(l) Protection of the Public:
122As outlined above, where an offence is the result of mental illness, one of the more important purposes of sentencing is to protect the public, so long as the individual remains in a dangerous state or has not been successfully rehabilitated: R v. Robinson, at para. 18; R v. Batisse, at para. 38. This is one of those cases.
123The basic problem I face in sentencing Mr. Harvey is this: I must comply with my duty to protect the public when I am very confident that, in the future, if Mr. Harvey is eventually unsupervised, he will again fail to comply with his medication regime and will be dangerous to himself and others. Regrettably, Rico Harvey is a dangerous man.
124That said, I agree with Mr. MacDonald that Mr. Harvey is also a very ill man. But that makes him no less dangerous. I repeat what Dr. Chatterjee stated in her report:
In summary, Mr. Harvey’s risk of violent recidivism is high if returned to the same circumstances that were present prior to the index offence.
125Mr. Harvey has been taking many of the same medications in custody that he was prescribed prior to the index offence. However, when in the community, and unsupervised, he has usually been non-compliant with his medication regime. That has been his pattern, interrupted only by one year of compliance out of custody (where he chose to go off his medications) and supervised compliance while in the institution. Unfortunately, an unsupervised Rico Harvey is potentially a very dangerous Rico Harvey. That is not a moral judgment. As Mr. MacDonald, emphasized, Mr Harvey is ill, not evil. To the victim of a violent crime, however, it does not matter.
126Many brutal killings are carried out in the absence of a video camera. This one was carried out in full view of surveillance cameras. I do not want to over-emphasize the brutality of this killing, as compared to other killings that may be as brutal but are not captured on video. I also do not want those reading this judgment to think that I have imposed a life sentence only because of the shocking nature of the beating inflicted on Mr. Elie, although it obviously plays a role. What the video demonstrates in very stark terms is the brutal, unprovoked, sustained, and deadly violence that Mr. Harvey is capable of. The video shows that he is capable of that violence in the absence of any provocation, or any need to defend himself.
127It must also be said that Mr. Harvey has been violent with others, including with his mother, and other shelter residents (including one incident at a shelter where he stomped on another resident’s head) and other members of his family.
128I accept that Ms. Wallace is truthful when she says that Mr. Harvey plans to stay on his medication as he recognizes that it is better for him. I found her to be an honest witness. I also accept that at this time Mr. Harvey would prefer to stay on his medication – although I found him, overall, to be a dishonest witness. As Dr. Chatterjee points out, however, many offenders say this as a means to a better legal end.
129I do not, however, accept that Mr. Harvey will be able to stay on his medications when he is eventually unsupervised, as he will be if I give him a determinate sentence, his sentence expires, and he is no longer subject to the parole authorities. His history of going off his medication is well-established. When outside of a custodial situation he has never stayed on his prescribed medications, even with his mother and partner to administer them. The strategy for managing Mr. Harvey’s compliance with his medications once his sentence has expired is basically a hope that he will continue to take them. Hope is not a valid strategy.
130Having watched the video, having reviewed Mr. Harvey’s long and detailed history of mental health struggles, and having heard the testimony (and read the report) of Dr. Chatterjee, I find that there is a significant risk that Mr. Harvey will commit violent offences in the future, particularly when he is unsupervised. Under those circumstances, his past behaviour strongly suggests that there is a very high probability that he will stop using his prescription medications and abuse non-prescribed substances. The risk to the public is, therefore, very high.
131Mr. Harvey says that he does not want to hurt anyone again. The problem is not that Mr. Harvey wants to get out of jail and go around committing violent offences; the problem is that he suffers from significant mental illness that, when untreated, put him at high risk for doing so. As I keep saying, the death of Mr. Elie demonstrates what he is capable of when he is unmedicated and unsupervised.
(m) Should Parole Be Delayed?
132Section 743.6(1) of the Criminal Code authorizes a judge to order that an offender serve one half of the sentence, or ten years, whichever is less, before being eligible for parole. In my view, that section does not apply here. The paramount principles guiding a court under this section are denunciation and specific and general deterrence. As I have already mentioned, those principles have only a limited role in cases where the driving force is mental illness.
133In my view, the question of parole is best left to the parole authorities, who have expertise in these matters: R. v. Husbands, at paras. 98-99.
(n) Sentence Imposed
134Prior to final submissions by counsel, I indicated that I was considering a life sentence. I asked counsel to make submissions on the point. I received submissions on this point and on all other points from the Crown and the defence, and I am grateful for their assistance.
135Sentencing is an individualized process. A fit sentence for one offender and one set of facts is usually not a fit sentence for another offender and a different set of facts. I have reluctantly concluded that only a life sentence will satisfy the purposes and principles of sentencing in this case.
136I find, based on the authorities, that the principles of general and specific deterrence play a slightly lesser role in this case than they might in other manslaughter cases given Mr. Harvey’s mental illness. That said, as this is a manslaughter that is as close to murder as a manslaughter can be, those sentencing principles still play a role.
137I also find that Mr. Harvey’s prospects for rehabilitation are limited. As I keep emphasizing, he has done well in an institutional setting while taking his prescribed medications. His prospects when unsupervised, however, are poor. His history of going off his medication and becoming violent bodes ill for his future rehabilitative prospects.
138And what of Mr. Harvey’s moral blameworthiness? Manslaughter encompasses a wide spectrum of actions that result in death. The jury may not have found Mr. Harvey guilty of murder, but as I keep emphasizing I find this manslaughter is “as close as a manslaughter will come to a murder” to use the language of R. v. Husbands. Although the manslaughter conviction was the result of diminished capacity, I find that Mr. Harvey’s degree of responsibility is as high as it could be for a person suffering from a significant mental illness. Mr. Harvey attacked Mr. Elie in the most cowardly manner possible. Mr. Harvey struck the first blow from behind while Mr. Elie was trying to get away and had no chance to defend himself. After the first blow there was a lengthy, protracted beating with a weapon, a fire extinguisher, including blows to the head and torso. It is notable that when Mr. Harvey left the laundry room the first time Mr. Elie was lying on the floor, covered with garbage, and apparently incapacitated. He returned with a fire extinguisher, and upon finding that Mr. Elie was standing, attacked him again – and again, in a cowardly manner, from behind, when Mr. Elie was incapable of making any move, even a token move, to defend himself.
139In R. v. L.M., at paras. 20, 22, the Supreme Court discussed the imposition of life sentences:
In R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16 (S.C.C.), the Court acknowledged the exceptional nature of the maximum sentence, but firmly rejected the argument that it must be reserved for the worst crimes committed in the worst circumstances. Instead, all the relevant factors provided for in the Criminal Code must be considered on a case-by-case basis, and if the circumstances warrant imposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases.
. . . terms such as "stark horror""worst offence" and "worst offender" add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code . . . must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely . . . and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis. [para. 1]
Thus, the maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances. The trial judge's decision will continue to be dictated by the fundamental principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 Cr. C.). Proportionality will be achieved by means of a "complicated calculus" whose elements the trier of fact understands better than anyone.
140I do not suggest that Mr. Harvey is the worst offender who committed the worst crime. I am not sentencing Mr. Harvey as a murderer: R. v. Husbands, at para. 123. But that is not the only thing I must consider.
141In this case a life sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. The moral blameworthiness is high. Mr. Harvey’s responsibility is as high as it can be for a person with a major mental illness. It is also a sentence that takes into account the limited possibility of rehabilitation and the significant need to protect the public. I am not making any order as to parole. Whether and when Mr. Harvey will be released will be up to the parole authorities, as I have noted. They are in the best position to decide whether, when, and under what circumstances he may be in the community. Mr. Harvey may well find himself released on parole at some point. But he will not be unsupervised.
142In considering a fit sentence, I have also considered the principle of restraint. Unfortunately, that principle has only limited application where the protection of the public is paramount. And, to be very clear, this court has a duty to protect the public. Dr. Chatterjee noted that Mr. Harvey will continue to suffer from lifelong mental illness, specifically schizoaffective disorder – bipolar type. He will continue to be at high risk of violent recidivism for as long as he lives. If Mr. Harvey is returned to the community in an unsupervised manner – which will happen if he receives something less than a life sentence – he could easily kill or seriously injure someone again. Sometimes, “the best predictor of future behaviour lies in the past”: R. v. Marshall, 2021 ONCA 28 at para. 98. Mr. Harvey suffers from diseases that will not go away or be cured, and as I keep emphasizing, he has a history of going off his prescription medications. Nothing less than a life sentence will properly protect the public.
143Finally, I wish to be very clear that I am not imposing a life sentence simply to get around the fact that the Crown has chosen not to pursue a dangerous offender designation and an indeterminate period of incarceration. The Crown has its role, and I have my role. My duty is to make a considered decision based on the evidence and the law. While it is my duty to seriously consider the positions of the Crown and the defence, I am not bound by them.
144Mr. Harvey is therefore sentenced to life imprisonment. There will be a DNA order and a s. 109 order for ten years.
IV. THE APPLICATION FOR A LONG-TERM SUPERVISION ORDER
145Given that I am imposing a life sentence for manslaughter, an LTSO is not available: Criminal Code, s. 755(1). The application for an LTSO is, therefore, dismissed. Given my conclusion, only a brief analysis of the LTSO application is required.
146I am satisfied that if I ordered an LTSO that there would be a reasonable possibility of eventual control in the community – barely – during the lifetime of the LTSO. I agree with and place great weight on Dr. Chatterjee’s formulation: whether there is a reasonable possibility of eventual control in the community during the life of the LTSO hinges on several factors. If an LTSO were to be ordered, a very close and tight amount of supervision would be required.
(a) The LTSO Regime
147The LTSO regime is set out in s. 752.01, 752.1(2), s. 753.1 and s. 753.2 of the Criminal Code.
148There are several steps that must be taken before a court may impose a LTSO in a case not involving sexual offences. The prosecutor must make an application for an assessment. The court is required to order an assessment where:
An offender has been convicted of a serious personal injury offence; and,
Where there are reasonable grounds to be believe that an offender may be found to be a dangerous offender or a long-term offender.
149The assessment report may only be ordered where the offender is found guilty of a serious personal injury offence or one of the offences enumerated in s. 753.1(2)(a) of the Criminal Code – those offences primarily being sexual ones. Manslaughter is obviously a serious personal injury offence.
150I released reasons ordering the assessment on September 11, 2025: R. v. Harvey, 2025 ONSC 5199. I then appointed Dr. Chatterjee as the assessor. As noted, Dr. Chatterjee’s report was filed as part of the record.
151After the filing of an assessment report pursuant to s. 751.1(2), Crown counsel may apply to the Attorney General or Deputy Attorney General for consent to bring a dangerous offender or LTSO application: Criminal Code, s. 754(1)(a). Deputy Attorney General David Corbett consented to an application by the Crown for an LTSO. The consent was filed as part of the record.
152It is not necessary in this case to consider the dangerous offender provisions, as the Crown has not applied for a dangerous offender designation for Mr. Harvey.
153Pursuant to s. 753.1(1) the court may find an offender to be a long-term offender if it is satisfied that:
It is appropriate to impose a sentence of two years or more;
There is a substantial risk that the offender will re-offend; and,
There is a reasonable possibility of eventual control of the risk in the community.
154The protection of the public by the prevention of future violence is the goal of the dangerous offender and long-term offender regime: R. v. Jones, [1994] 2 S.C.R. at para. 128; R. v. Johnson, supra, at paras. 19, 29; R v. Little, 2007 ONCA 548 at para. 70. The fundamental purposes and principles of sentencing as set out in the Criminal Code apply to dangerous offender or long-term offender proceedings: R. v. Johnson, supra, at para. 23. Finding a person to be a dangerous offender or a long-term offender is exceptional: R. v. L.M., supra, at para. 39.
155The dangerous offender (and by extension) long-term offender provisions address the concept of risk reduction, rather than risk elimination. The use of the term “control” connotes management or containment of risk rather than elimination of risk: R. v. Little, supra, at para. 39. Cronk J.A. went on to say in that case at para. 42:
The requisite judicial inquiry on a dangerous offender application, mandated by Johnson, is concerned with whether the sentencing sanctions available under the long-term offender provisions of the Code are "sufficient to reduce [the offender's] threat to an acceptable level". [Emphasis added.] The determination of whether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including treatability, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public.
156The court must balance the liberty interests of the offender with the risk to public safety that will arise when the offender is released. In a contest between the individual interests of the offender and the protection of the public, the protection of the public must prevail: R. v. Little, supra, para. 70.
157If a court finds an offender to be a long-term offender, it is required to:
Impose a sentence of at least two years; and,
Impose a LTSO for a period of not more than ten years.
158The period for which an LTSO in to be in force should “not be longer than to obviate the risk of re-offence and to protect the public”: R. v. Marshall, supra, at para. 95.
159No provision of law authorizes an extension of a LTSO beyond that ordered by the sentencing judge; but that the period of the LTSO can also be terminated or reduced upon application to a superior court or the National Parole Board: R. v. Marshall, supra, at paras. 95-96.
160I turn now to the criteria set out in the LTSO legislation.
(b) Is It Appropriate To Impose A Sentence Of Two Years Or More?
161There is no question that a determinate sentence of more than two years should be imposed in this case. Taken even at its lowest, the defence position is that Mr. Harvey should receive a sentence of ten years, less credit for time served.
(c) Is There A Substantial Risk That Mr. Harvey Will Re-Offend?
162As I have already found in sentencing Mr. Harvey for manslaughter, there is a substantial risk that he will re-offend. I will repeat the salient parts of Dr. Chatterjee’s opinion:
… Mr. Harvey… has a risk profile that points towards a likelihood of him causing significant injury, or inflicting severe psychological damage on other persons, through a failure in the future to control his impulses…
The above-noted risk assessment suggests that Mr. Harvey presents with a high risk of violent re-offending.
(d) Is There A Reasonable Possibility Of Control In The Community?
163A proper management plan to control risk in the community is one that relies on more than speculation about the prospects of the offender. More than mere hope of control is required: R. v. Grayer, 2007 ONCA 13 at para. 67; R. v. Judge, 2013 ONSC 6803 at para. 399.
164I agree with the following comment from R. v. Walford, 2007 CarswellOnt 1102, [2007] O.J. No 744 (Sup.Ct.)(and adopted by my colleague Garton J. in Judge at para. 398) when discussing what is meant by the phrase “reasonable possibility.” MacDonald J. stated at paras. 81-82 of Walford:
The objective of the long-term offender provisions is, therefore, like the dangerous offender provisions, protection of the public, and that principle should inform the interpretation of the phrase "reasonable possibility"…
In my opinion, unless the possibility of eventual control of the offender's risk in the community reasonably has the potential to become actual control, there cannot be a reasonable possibility of the public being protected from that risk. Absent reasonable potential of eventual, actual control of the offender's risk in the community, a possibility of eventual control would undershoot the objective of protecting the public from that risk. Consequently, while the Code requires a possibility and not a probability, a critical factor which makes a possibility of eventual control of the risk into a reasonable possibility is that modest potential of actually protecting people from the offender in their midst. That risk is, as mentioned"a substantial risk that the offender will re-offend"…
165An offender on an LTSO is to be supervised in the community in accordance with the Corrections And Conditional Release Act, S.C. 1992, c. 20: Criminal Code, s. 753.2(1). Under s. 134.1(1) and (2) of that Act the National Parole Board shall prescribe conditions to long-term offenders that are considered reasonable and necessary to protect the public and re-integrate the offender into society.
166As noted, Dr. Chatterjee found – and I accept her evidence – that whether there is a reasonable possibility of control in the community depends on several factors, including Mr. Harvey’s age; his diagnosis and prognosis; his motivation for treatment and response to previous treatment; his response to supervision in the past; his prospects for employment and community support; and his exposure to destabilizing influences. Although her opinion was highly contingent, Dr. Chatterjee was of the view that Mr. Harvey could eventually be controlled in the community with a proper level of supervision.
167Mr. Harvey is still a relatively young man. Dr. Chatterjee noted that most offenders tend to age out of criminality. That may not, however, be the case with someone who suffers from and will continue to suffer from Mr. Harvey’s illnesses – which are lifelong.
168I have already canvassed Mr. Harvey’s motivation for treatment and response to previous treatment. His previous responses in the community have been poor. They have been better while closely supervised while in custody. If he is closely supervised in the community, he may do better than he has done in the past, although his past behaviour strongly suggests that he may well decide to stop taking his prescribed medications at some point.
169Mr. Harvey has had employment in the past, and he has had periods of steady employment. That steady employment has been in the restaurant industry. He has lost jobs, however, when he stopped taking prescribed medications and began to self-medicate, especially with cannabis. While he is subject to a LTSO he will have support from his mother – although she was unable to keep him on his prescribed medications in the past – and he will be closely supervised by Correctional Services. It is possible that he can remain employed and supported throughout the currency of an LTSO – although, again, that will be contingent on whether he continues to take his prescribed medications and not self-medicate, something he has not been capable of in the past. It is, presumably, the close supervision of CSC and the potential of re-incarceration will be enough to keep him on his prescribed medications.
170Mr. Harvey’s exposure to destabilizing influences is also a problem, as identified by Dr. Chatterjee. If he reduces his exposure, he will have more success on his LTSO. Again, this is contingent on him continuing to take his prescribed medications and not self-medicating.
171Overall, were I to make an LTSO (rather than impose a life sentence) I am satisfied that there is a reasonable possibility of control within the community – although it is a close call. I make that finding because Mr. Harvey has done well while under direct supervision in the institution. He has improved considerably while closely supervised in custody. This improvement has been testified to by his mother (and other members of his family). I also accept it based on Mr. Harvey’s own testimony and Dr. Chatterjee’s report.
172The evidence before the court from Correctional Services employees as to the programming and supervision available satisfy me that it is possible to come up with a realistic plan for managing Mr. Harvey’s illnesses during the life of the LTSO. There will be enough supports in the community if he is closely supervised by Correctional Services of Canada – as he would be. Again, it is a close call, but if the community supervision is tight enough there is a reasonable possibility of control in the community – during the lifetime of the LTSO.
173Moreover, there is an enforcement mechanism should Mr. Harvey fail to comply with an LSO or commit further offences. Pursuant to s. 135(1) of the Corrections And Conditional Release Act, where an offender breaches a condition of the LTSO, where a Board member or a designated person…
135(1) … is satisfied that it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society, may, by warrant,
(a) suspend the parole or statutory release;
(b) authorize the apprehension of the offender; and
(c) authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law.
174Where an offender receives a custodial sentence the LTSO is suspended for the length of that additional sentence: Corrections and Conditional Release Act, s. 135(1.1). The offender can then be apprehended and recommitted to custody.
175If an offender commits further offences while on an LTSO, the LTSO is interrupted until the offender finishes serving sentences on those further offences, unless the court orders that the LTSO is terminated: Criminal Code, s. 753.4(1). As well, it is a hybrid offence for an offender failing or refusing to comply with an LTSO without reasonable excuse: Criminal Code, s. 753.3(1).
176Although, as I have already mentioned, I am not confident about what would happen at the expiry of an LTSO, I do believe that the risk can be managed within the currency of the LTSO, given that Mr. Harvey would be closely supervised.
V. CONCLUSION
177Mr. Harvey is sentenced to life imprisonment for manslaughter. The application for an LTSO is dismissed.
R.F. Goldstein J.
Released: January 6, 2026
CITATION: R. v. Harvey, 2026 ONSC 47
COURT FILE NO.: CR-21-70000342-0000
DATE: 20260106
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
RICO HARVEY
REASONS FOR SENTENCE
R.F. Goldstein J.