R. v. Hayes, 2021 BCPC 289

Citation: R. v. Hayes 2021 BCPC 289 Date: 20210915 File No: 259418-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. MAXIMUS ROLAND HAYES ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: J. Hermanson Counsel for the Defendant: M. Morrison Place of Hearing: Vancouver , B.C.

Date of Hearing: September 15, 2021 Date of Judgment: September 15, 2021 [ 1 ] THE COURT : Maximus Hayes comes before the Court for sentencing on a charge of Manslaughter. [ 2 ] Shortly after the pandemic commenced in 2020, Chief Judge Gillespie and Associate Chief Judge Dohm began a program of pretrial conferences as a way of attempting to minimize trial time which had become very precious due to adjourned trials when the Courts could not allow witnesses and others into the courthouses.

[ 3 ] Mr. Hayes' case was assigned to me and I met virtually with his counsel and Crown counsel a number of times. Crown counsel had to obtain information and disclose it to Mr. Hayes' lawyer. Once it was disclosed and she could safely advise her client that in all likelihood there would be a conviction, his instructions immediately were that he wished to plead guilty.

He did not wish to put anyone who may have witnessed the death through the difficulty of having to testify and his remorse was genuine and palpable to his lawyer and he entered a guilty plea, I would say, at the earliest possible opportunity which is a very mitigating fact. [ 4 ] I have been provided with admissions of fact signed by both counsel which set out the circumstances of the death and therefore the crime. An overdose prevention site is operated at St.

Paul's Hospital in Vancouver's West End and provides a safe place where a person can be monitored while using narcotics and treated immediately if they overdose. Thomus Donaghy was employed as an overdose prevention peer worker and working on July 27, 2020. [ 5 ] Maximus Hayes was a client of OPS. At 8:20 p.m. on July 27, 2020, he attended outside OPS and Mr. Donaghy and other staff noted his arrival. Mr. Donaghy took a break and went outside. Mr. Donaghy and Mr. Hayes engaged in conversation. Mr. Donaghy was hearing impaired and was repeating himself. Witnesses described Mr. Hayes as getting frustrated.

The discussion mentioned both money and methamphetamine. Apparently, Mr. Donaghy owed the accused some money for some drugs. Mr. Hayes pushed Mr. Donaghy in the chest with a bottle of Gatorade. Mr. Donaghy responded to the push by becoming physical and swinging a fist at Mr. Hayes. Mr. Hayes responded in kind and the two men engaged in a physical fight with both individuals throwing punches. [ 6 ] The fight moved out onto Comox Street. Several witnesses described Mr. Donaghy as getting the upper hand in the physical altercation with Mr. Hayes throwing what are described as ineffectual punches while Mr.

Donaghy was landing punches. At one point, Mr. Hayes was running away from Mr. Donaghy when Mr. Donaghy grabbed Mr. Hayes' shirt and ripped it off. What is significant is in the process of doing that, he lifted it over Mr. Hayes' head. That triggered something which I will get into later for Mr. Hayes. [ 7 ] At that point, Mr. Hayes removed a knife that he had on his person and stabbed Mr. Donaghy once to the left chest. The wound measured at 14 centimetres deep, which is slightly more than five inches, and entered the left ventricle of Mr. Donaghy's heart. Mr.

Donaghy would succumb to this injury and would be pronounced dead upon his arrival at St. Paul's emergency. The cause of death was blood loss due to the injury to his heart. I have not been told how quickly he was able to go from what would be the back of St. Paul's Hospital to the front of St. Paul's Hospital, but I imagine it must have been almost immediately so the blood loss must have been immediate and severe because it seems as if the best medical attention and cardiac care team at St. Paul's could not have done anything to save Mr.

Donaghy. [ 8 ] Crown counsel seeks a sentence of four years less time served and, if I may say, less an additional four months because it is the view of the Crown that Mr. Hayes needs the rehabilitation that probation can provide more than he needs to spend four months in custody. Defence counsel seeks a sentence of three years less time in custody plus probation. In effect, the parties are eight months apart with defence counsel seeking an additional 16 months and Crown counsel seeking an additional 24 months. [ 9 ] Mr. Hayes has now been in custody for 13 months.

Upon his arrest, he instructed his lawyer not to seek judicial interim release. He was in very active drug use at the time of his arrest, both heroin, but which in effect at that point in time on the downtown streets of Vancouver was fentanyl, as well as methamphetamine, and was certainly drug-sick upon his admission into the North Fraser Pretrial Services Centre.

His concern was that, if he were released, he would go right back to drug use and, while it was a tragedy that put him in custody, he decided to try to make the best of that tragedy and attempt to finally, and I say "finally" because he is only 24 years of age, put his drug use behind him. [ 10 ] He is 24 years of age and he was born to a woman who was either 15 or 16 at the time of his birth who did not identify his biological father on his birth certificate, but his biological aunt believes that his biological father was of Jamaican and Indigenous Canadian origin.

Apparently, his biological mother tried to raise him, but at the age of 13 weeks, he was apprehended from her care. There was an attempted adoption which failed and he was “returned” and placed into foster care.

I guess it was the belief of Child and Family Services that any foster placement is better than no foster placement because he suffered incredible neglect in that home to the point that he must have had so little human interaction that at the age of three he could still barely speak. [ 11 ] I know that he practices Islam as well as Indigenous culture so I will say we have to thank Allah that he met his adoptive mother. What a woman. [ 12 ] What a woman you are, Ms. Hayes. Wow.

I read that letter that you wrote to the Court and I cannot tell you -- it brought me to tears reading what you have done for this boy. [ 13 ] His mother adopted him when she was a single woman and she subsequently married her husband and they have had biological children and, as well, have adopted a number of children, and they did everything for Mr. Hayes, all form of sports, and he particularly had an affinity for football to the point that, in order to further his chances, he was taken to an out-of-catchment school that had a good football team.

In what is, I do not know, euphemistically called hazing, that essentially is rape, the coach of the football team permitted this young man to be sexually assaulted by older teammates and, in the course of that, I guess so that he could not identify who his assailants were, his shirt was pulled over his head, which is why it is not surprising that when the deceased pulled Mr. Hayes' shirt over his head, Mr. Hayes had the incredible reaction that he did. [ 14 ] At that point in time, he was a 15-year-old boy. He could not go home and tell his mom what happened or felt he could not.

The tragedy is that he stopped playing football, he stopped going to school, and he started hanging out in the streets of Downtown Victoria and began to use drugs. By the age of 15, he was putting a needle with heroin in his arm to take the pain away. Most 15-year-olds are still living the life that his mother tried to give him which is in a loving and welcoming cocoon, but because of his victimization, he could not accept that and he began to live on the streets. [ 15 ] I do not know the deceased's background, but it would not be surprising to me if the deceased had a similar background.

He was an active drug user, but at the same time, I am told that he was a remarkable human being and I have received a victim impact statement from a friend of his as well as a community impact statement from Shoshana Lieberman who is associated with RainCity care workers. His friend writes [as read in]:

The guy was amazing and clearly had tons of experience. Thomus' murder is a great loss to the community as a whole. [16] Ms. Lieberman believes that the deceased saved probably over a thousand lives in his work in trying to prevent people fromoverdosing.

What occurred that day was a tragedy, but the result is the loss to the City of Vancouver of, really, a godlike man who hadhis own problems, but did everything he could to ensure that people survived. [17] Quite frankly, the entire case for both the deceased and the accused are heartbreaking. [18] I have been provided with a presentence report, a psychological assessment, and a Gladue report. [19] In terms of the Gladue factors, this young man is aching to know who his biological father is.

He wants to know whichIndigenous People he belongs to, and he wants to find out what he can about his culture and I hope that he is able to. At page 10 of theGladue report, the writer wrote [as read in]: Max has pleaded guilty to the offence and accepts full responsibility for his actions. He said, "I have lots of remorse around whathappened. I wish it didn't happen. I replay it in my mind and it is really messed up." Max pledged to maintain his sobriety in memory ofthe victim saying, "I want to change my life around so his life wasn't lost for nothing." He continued by saying, "I know the damage Ihave done.

I can't believe I hurt people the way I did." When asked to expand upon this, Max explained that not only was the victim ofhis crime killed, but he emotionally hurt a number of people in his life who had previously tried to help him prior to the index offence. [20] That one paragraph shows a remarkable degree of insight for a 24-year-old man. It shows empathy not only for the deceased, butfor everyone who knew and loved the deceased, but also for all of the people who know and love Mr.

Hayes who he feels he has brokentheir hearts. [21] With respect to the psychological assessment, his diagnosis is alcohol-related neurodevelopmental disorder. The diagnosesinclude attention deficit hyperactivity disorder, conduct disorder, and mathematics disorder, although I have to say I do not know whatthat is, although maybe the numbers get reversed. In this report, he was noted to have severe impairments in attention as well asexecutive and adaptive functioning, and then personally the doctor wrote [as read in]: Finally, Mr.

Hayes endorsed problems with experiencing intense emotions, explaining, "I'm always emotional." Specifically, he said thathe can become anxious or angry quickly including behavioural outbursts, throwing and breaking objects.

He said, for example, that he isunsure why he becomes quite angry when he loses at cards with other inmates. [22] He described, I am going to say, what seems to have been his attitude in life which was his attitude toward drug use very tersely.He had used substances recklessly without caring about overdosing, and it is a real tragedy when a young person has so little will to live. [23] In terms of recommendations, the doctor recommended intensive and comprehensive substance use treatment and, whenever Mr.Hayes is reintegrated into the community, he would benefit from longstanding multidisciplinary care in a community medical orpsychiatric clinic.

He may benefit from a referral to a regional forensic psychiatric outpatient clinic in either Vancouver or Victoria.Within such a clinic, he would have services available to target opioid use disorders and emotional dysregulation. [24] Both counsel have provided me with a number of authorities on sentencing in terms of manslaughter cases: R. v. Creighton, (SCC), [1993] 3 S.C.R. 3; R. v. Plowman, 2015 BCCA 423; R. v. Green, 2001 BCCA 672; R. v. Pop, 2013 BCCA 160; R. v.Huth, [2014] B.C.J. No. 579; R. v. Engebretsen, 2016 BCCA 182; R. v. Stanford, 2017 BCSC 530; R. v.

Golar, 2018 BCSC 2329; R. v.Taniskishayinew, I am sorry, I have completely mispronounced that, 2018 BCSC 296; R. v. Smith, 2017 BCSC 2513; R. v. Johnson, 2017BCSC 1240; R. v. Andrew, 2008 BCCA 141; R. v. Gladue, 1999, Supreme Court of Canada; R. v. McGoran, 2004 BCSC 1737; R. v.Anthony-Cook, 2016 SCC 43; R. v. Okemow, 2016 MBQB 240; R. v. Denis-Damée, 2018 QCCA 1251; R. v. S.M., 2004 SKQB 358; andR. v.

Poucette, 1999 ABCA 305. [25] Manslaughter is an interesting crime because the sentencing range is anywhere from a suspended sentence to life in prison andthat is because when an individual is killed in a non-deliberate manner, it can be near accident to what we call near murder. This case isnot near accident. If it were near accident, I would be considering suspending the passage of sentence and everyone acknowledges that itis not near murder, either. It is at the lower end of cases where individuals are required to be incarcerated for the crime that they havecommitted. [26] Mr.

Hayes comes before the court with, I will not say a fairly lengthy, because a lot of it is youth, but with a number of previousconvictions.

As a youth, he had offences of violence including robbery, assault with a weapon, and assault and, as an adult, he had threeconvictions for assault, the most recent conviction having been entered on April 8th of 2019 where he received a 30-day conditionalsentence order. [27] If this young man's rehabilitation were the only thing I had to consider in terms of fixing an appropriate length of sentence, Iwould have no trouble saying that the time that he had spent in custody would be sufficient to be followed by a period of probation, butthat is not the only principle of sentence that I have to consider.

What I have to consider specifically in this case is denunciation and thatis the societal reflection of the harm that was done to society by this crime. Specifically, a life was taken and, more specifically, Mr.Donaghy's life, Mr. Donaghy being an individual who spent his life trying to save lives, although not in this case. In this case, Mr.Donaghy was particularly violent towards the accused. [28] Mr. Hayes has spent 13 months in custody and the exact calculations have been made. So I will refer to the Crown's sentencingsubmissions for the math.

He has spent 398 actual days in custody which would entitle him to credit for 597 actual days. The Crown isseeking that he spend an additional 24 months in custody to reflect not only the aggravating fact of the stab wound and his previousrecord, but to reflect denunciation as well, but also considering the significant mitigating factors which are the very early guilty plea, hisgenuine remorse, and his shockingly troubled background, as well as the Gladue factors. Defence counsel is seeking an additional 16months.

[ 29 ] I am persuaded, first of all, that whatever sentence be imposed it ought not to be two years in a penitentiary because I am firmly of the belief that all of the progress this young man has made while he is in custody would be taken away if he were sent to a penitentiary. While in custody, he initially, actually forthrightly, has acknowledged that he was using street drugs. He went from street drugs to methadone. He went from methadone to Suboxone and now, for the last month or so, he has been completely off drugs. [ 30 ] I am of the view, Mr.

Hayes that you are going to need assistance when you are out of jail because it might, tragically, be easier for you to be off drugs in jail than out of jail. The issue is how much more time do I need to impose to reflect the gravity of this offence. [ 31 ] I of the view that 16 additional months does not reflect the gravity, but I am not persuaded that 24 additional months also is required.

In my view, the record will reflect 597 days' time served plus 18 months plus two years' probation. [ 32 ] I am going to recommend -- you are free to say no, because you might not want to go back to the Island, but I am going to recommend that, if possible, you serve the sentence at Guthrie House -- [ 33 ] THE ACCUSED: Yes. [ 34 ] THE COURT: -- because it is, as far as I am aware, the best program in the Province of British Columbia to treat young people with drug addiction issues and to help them with appropriate skills to rehabilitate themselves upon their release -- [ 35 ] THE ACCUSED: Yes. [ 36 ] THE COURT: -- but if you decide you are afraid to go back to the Island for whatever reason, you can say, "I don't want to go to Guthrie House," but I hope you can take it, and talk to your mom because you still would not go right away and you can figure out with your mom what is probably the best thing for you. [ 37 ] The two years' probation, the conditions are as follows: [ 38 ] Keep the peace and be of good behaviour. [ 39 ] Report to Probation Services for supervision within 72 hours of your release from custody and thereafter as and when directed. [ 40 ] You are to reside where directed by your probation officer.

You may not move from that address without first obtaining his or her written permission. [ 41 ] You are to attend for, participate in, and complete to the satisfaction of the probation officer all counselling, programming, and treatment as directed by the probation officer which is not limited to, but ought to include counselling and treatment for substance use as well as sexual assault victimization. [ 42 ] You are to sign a waiver form provided to you by your probation officer that permits he or she to obtain copies of any assessments. [ 43 ] You are to attend at a forensic psychiatric outpatient unit as directed by your probation officer either for counselling or for an assessment.

You are to abide by the recommendations of the counsellors and/or assessor. Do you understand that? [ 44 ] THE ACCUSED: I do understand that, Your Honour. [ 45 ] THE COURT: All right. You may not attend at the St.

Paul's Hospital Overdose Prevention site. [ 46 ] THE ACCUSED: Yes. [ 47 ] THE COURT: You may not possess any weapons as defined by the Criminal Code of Canada inclusive of firearms, imitation firearms, ammunition, and explosives, except for knives to be used only for the preparation and consumption of meals or in the course of employment. [ 48 ] I do not see the necessity for the Portland Housing Society or am I missing something? [ 49 ] CNSL J.

HERMANSON: My only thought or concern was that there might be staff who work at multiple sites and if I can have a moment to confirm whether there is a situation where they might be working at more than one overdose prevention site or a housing spot? [ 50 ] THE COURT: Yes, but okay, I do not want him to use drugs, but god forbid he does, I want him to be able to go to an overdose prevention site. So that is why I thought limiting him to only the one would be helpful. [ 51 ] CNSL J. HERMANSON: Again, my only concern would be that if someone is -- and I can speak with Ms.

Karen [phonetic] right now. [ 52 ] THE COURT: Yes, go ahead. [ 53 ] CNSL J. HERMANSON: I know she -- I know she works [indiscernible]. [ 54 ] THE COURT: Okay, and then his mom wants to say something. [ 55 ] CNSL J. HERMANSON: I think, exemplifying how the Downtown Eastside takes care of its own, the request is simply not at the St. Paul's Overdose Prevention Society.

[ 56 ] THE COURT: Not attend -- [ 57 ] CNSL J. HERMANSON: Not to attend at the St. Paul's Overdose Centre, but not to restrict other Portland Housing Society -- including housing. Again, speaking to how the Downtown Eastside -- [ 58 ] THE COURT: I am sorry? [ 59 ] CNSL J. HERMANSON: Speaking to how the Downtown Eastside takes care of its own, they are not going to deny a service to somebody. So -- [ 60 ] THE COURT: Okay. [ 61 ] CNSL J. HERMANSON: -- the only restriction would be St. Paul's. [ 62 ] THE COURT: All right. So I have done that. [ 63 ] Ms. Hayes, you wanted to say something? [ 64 ] MS.

HAYES: I am okay. I was just concerned that it might have an impact on housing because I have [indiscernible] on the Island, as well -- [ 65 ] THE COURT: Okay. [ 66 ] MS. HAYES: -- but -- [ 67 ] THE COURT: All right. [ 68 ] MS. HAYES: -- [indiscernible]. [ 69 ] THE COURT: Any conditions that I -- before the ancillary orders, that I neglected to address my mind to? [ 70 ] CNSL J. HERMANSON: Not from the Crown's perspective, thank you. [ 71 ] THE COURT: Okay. I am going to have him sign the order, Mr. Registrar, because he is in custody so he is COVID safe. [ 72 ] Two other orders.

You are going to have to provide a sample of your DNA to the authorities today -- [ 73 ] THE ACCUSED: Yes. [ 74 ] THE COURT: -- and do you presently own or possess any firearms, ammunition, or explosives? [ 75 ] THE ACCUSED: No, Your Honour. [ 76 ] THE COURT: For a period of 10 years, you are prohibited from owning or possessing any firearms, ammunition, or explosives. [ 77 ] The Crown did not ask for it, but clearly you are impecunious and there is no surcharge. [ 78 ] Thank you. (REASONS CONCLUDED)