Court File and Parties
COURT FILE NO.: CR-21- 5/3465/346 DATE: 2023-03-10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Crown – and – ADIL ZENO Defendant
COUNSEL: Paul Zambonini, for the Crown Neill Fitzmaurice, for the Defendant
HEARD: March 3, 2023
SPIES J. (orally)
REASONS FOR SENTENCE
Overview
[1] On January 27, 2023, following a trial before me without a jury, I convicted Mr. Zeno of being an accessory after the fact to the murder of Jonathan Gayle, contrary to s. 240 of the Criminal Code, R.S.C. 1985, c. C-46.
[2] Mr. Zeno is now before me for sentencing.
[3] I received a copy of a Pre-Sentence Report (“PSR”) dated March 3, 2023 and a voluminous brief of Victim Impact Statements (“VISs”) that were filed from Mr. Gayle’s family and friends at the sentencing of Samir Adem and Salman Ahmed. In addition, Grace Gayle, Mr. Gayle’s mother, read out her VIS to me in court.
[4] Before the sentencing hearing commenced Mr. Fitzmaurice argued that the hearing should be adjourned so that evidence could be called on a defence application to stay these proceedings as an abuse of process, largely due to alleged misconduct by police and the Crown in the prosecution of Messrs. Adem and Ahmed. I dismissed that application as it has no reasonable prospect of success. Mr. Fitzmaurice then argued that the sentencing hearing should be adjourned so that the same evidence could be called to support an argument that the alleged abuse ought to be considered as a collateral consequence of the prosecution and have a mitigating effect on Mr. Zeno’s sentence. I declined that request. I advised counsel that I would provide written reasons for my decision and those reasons will be provided as soon as possible.
The Facts
Circumstances of the Offence
[5] The circumstances of this offence are set out in my Reasons for Judgment; R. v. Zeno, 2023 ONSC 699 (“Judgment”). In summary, Messrs. Adem and Ahmed murdered Mr. Gayle on the night of December 12, 2018. They shot him to death multiple times while he was in the driver's seat of his car and left him to bleed to death. Both men were convicted of second-degree murder on April 20, 2022, before Madam Justice Byrne, sitting with a jury.
[6] With respect to Mr. Zeno, I found that Messrs. Adem and Ahmed knew they had murdered Mr. Gayle, and that the Confession Mr. Zeno made to undercover officers in Project Sidetrack as set out in my Judgment is substantially accurate and that the only reasonable inference from all of the evidence was that Mr. Zeno knew Messrs. Adem and Ahmed had murdered Mr. Gayle shortly after the murder and before he ordered a cab and took them out of the neighbourhood where they lived, to the Havanap Motel on the other side of the city. On the way, he stopped to buy a bottle of Hennessy and at the motel, he purchased a room for all of them. I found that Mr. Zeno did so for the purpose of enabling their escape from police who were in the Islington/Dixon neighbourhood investigating the murder of Mr. Gayle.
[7] Also relevant to the circumstances of the offence is that when Mr. Zeno made his Confession to the undercover officers, he bragged about taking his “own two youths” who murdered Mr. Gayle, out of the “hood”. As officer UCG testified, getting a motel room – a “telly” as Mr. Zeno referred to it – was Mr. Zeno’s idea of a good time.
[8] Mr. Zeno continued his relationship with Messrs. Adem and Ahmed and, indeed, was 'partying' and waving a gun around with them a few days after the murder of Mr. Gayle.
Circumstance of Mr. Zeno
[9] Mr. Zeno is now 25 years old. He was 21 years old at the time of this offence.
[10] Mr. Zeno does have a criminal record as follows:
- On April 4, 2018 in Newmarket Mr. Zeno was convicted of Fail to Attend Court, Theft Under $5000 x 4, and Fail to Comply with Recognizance. He received a Suspended Sentence & Probation for 2-years.
- A few days later in Toronto on April 13, 2018, Mr. Zeno was convicted of Theft Under $5000, and Fail to Comply with Recognizance. The sentence is shown as $50 (credit for the equivalent of 32 days pre-sentence custody) and $50. I think that must be a 50 day credit for 32 days in custody and a fine of $50.
- On June 15, 2018 in Toronto Mr. Zeno was convicted of Fail to Comply with Conditions of Undertaking given by Officer in Charge and Possession of a Weapon. The sentence was a $10 fine and a Suspended Sentence & Probation for 1-year.
- On April 9, 2021 Mr. Zeno pleaded guilty to Theft Under $5000 and Fail to Comply with Recognizance. He was sentenced to 30 days after receiving credit for 20 days in custody.
[11] The author of the PSR interviewed both Mr. Zeno and his mother. Mr. Zeno was born in North York and has two older sisters and two older maternal half-siblings from his mother's previous marriage. He is single and has no dependents. His mother is from Somalia and his father was from Italy. His parents separated when Mr. Zeno was very young and his father moved to the United States. His father was murdered in the United States when Mr. Zeno was only eight years old. Mr. Zeno told the author of the PSR that he did not feel that justice was done by the sentence the two men got for murdering his father. He also said that the initial loss of his father did not really hit him until he turned 14 and that he then felt depressed and “started falling hard on the alcohol”. Apart from this and the area where he was raised. Mr. Zeno reported that he was provided for and did not feel neglected.
[12] Mr. Zeno is currently living at 330 Dixon Road, Toronto, with his mother and his two sisters and their three children, the same place where he was living at the time of the offence. He told the author of the PSR that he stays away from the negative influences of the area where he lives and “risky situations” by being employed and avoiding being outside at certain times of the day. He stays at home and plays video games. While on bail he spent a few months in 2022 living in Vancouver with an uncle.
[13] The last time Mr. Zeno attended school was in Grade 11. He was expelled for always being absent. Mr. Zeno described himself as a “bad kid” and stated that he got into a couple of fights. He stated his decision not to go to school regularly resulting in poor grades was because that’s what others in the area where he lived were doing. He is six credits short of a high school diploma and completed some credits while in custody at the Toronto South Detention Center (“TSDC”). Mr. Zeno has no plans to go back to school. He would like to work and make money for the time being. While in custody Mr. Zeno reported that he had completed programs on parenting, anxiety & stress, and religion for bible studies, but he did not give the author of the PSR any of the certificates usually provided on completion of these types of programs.
[14] In terms of work, Mr. Zeno advised that his first paid position was at the age of 18 for three months when he secured a position working in construction; he was being paid $20/hour. He then worked as a dishwater at a hotel for the summer in 2017 where he was paid $15/hour. He quit that job because of: "the temptations of wanting more for my life". There is no evidence of what happened after that job in terms of employment until his arrest for this offence in December 2018. While in Vancouver Mr. Zeno reported working as a general laborer in carpentry and construction. I have no details about how long he worked there. Upon his return to Ontario, Mr. Zeno was able to secure another job through an employment agency on December 1, 2022, with an aluminum company located in Woodbridge, Ontario as a "racker". He says he is currently being paid $16.50/per hour working Monday to Friday and believes that the company will hire him directly now that he has completed three months of employment. Mr. Zeno’s mother told the author of the PSR that he contributes towards rent, food, etc. to help the family.
[15] Mr. Zeno admitted to a serious past addiction to alcohol to the author of the PSR. His love of drinking was also referred to in my Judgment. His first experience with alcohol was at the age of 15, and he had alcohol poisoning a couple of times. At his worst Mr. Zeno was drinking up to three liquor bottles a day, and because he couldn't afford to purchase them, he would simply steal. He told the author of the PSR that all the theft charges on his criminal record were LCBO related. Alcoholism took over his life from the age of 15-21-years old. Mr. Zeno told the author of the PSR that he is more focused now and credits his time in custody as helping him become sober.
[16] In terms of drugs Mr. Zeno admitted that at the age of 16 he began using, Marijuana, Oxycodone, Hydrocodone, Lean, Xanex, and Molly. Again, he claims he is more mature now and that this was a phase he went through because when he was younger, he felt that everyone around him was using drugs and he became influenced easily. His mother confirmed this information but added that he is no longer this way and has been much more focused.
[17] There is no evidence of Mr. Zeno having any mental health issues and he does not have any unresolved trauma from his past other than the loss of his father. He denied any gang associations but told the author of the PSR that; "the judge will see it as these guys are just gangbangers, everyone has poverty, it's just the area, it's bigger than us, police see our faces and it's stereotype, people think we were trying to get the mayor". He also said that "the cops beat us up in the stairs, they raided 370 and they broke the house, found nothing and didn't even charge us" and he explained that there were a couple of raids that he was in. There is in fact no evidence of Mr. Zeno being part of a gang although given the evidence in this case he clearly needs to use much better judgment to avoid hanging out with men like Messrs. Adem and Ahmed. His mother also stated that she has always had concerns with her son’s choice of companions.
[18] Mr. Zeno told the author of the PSR that he is now very spiritual, and he described himself as a "rehabilitating, more religious person, I don't really do anything I used to do, especially the bad habits, I don't go outside and look for people to hang out with, I'm in my house playing video games". In answer to my question as to whether or not he thought he could benefit from any counselling Mr. Zeno said no as he was now closer to God.
[19] Mr. Zeno’s mother described her son as a hard worker and “good boy now". She reported that he has made tremendous change in his attitude since his release from custody in 2021. She wants to see him do well in life.
[20] When the author of the PSR asked Mr. Zeno about the offence and how he felt about it he said that his lawyer had advised him not to speak about the offence, which is fair as I expect he will want to preserve his right of appeal. That said it means I have no evidence of remorse, particularly given how he bragged about the help he gave Messrs. Ahmed and Adem to the undercover officers.
[21] The author of the PSR sets out Mr. Zeno’s previous response to community supervision. Essentially, he has had poor reporting habits and would often fail to report or attend late. He was referred to individual counselling sessions in August 2018 to address areas in relation to his attitudes towards offending. His poor reporting habits prevented him from benefitting fully from these sessions. He did complete nine sessions however the counsellor noted that although he participated his engagement was minimal in regard to any assignments he was tasked to do. At that time Mr. Zeno was also receiving individual substance abuse counselling through the YMCA but again his poor attendance prevented him from gaining any benefit. Apparently during probation meetings, he lacked motivation to follow through on assigned tasks and was surrounded by negative peer influences. However, the supervising officer agreed that he appeared to be a suitable candidate for future community supervision. The author of the PSR is of the same view and set out some possible conditions should I impose a period of probation.
Victim Impact Statements
[22] By all accounts, Mr. Gayle was a wonderful man, beloved by his family and many friends. He was young and had much to live for and had many dreams and goals that will never be accomplished. On the day of his murder, he had been visiting his pastor for some advice about an upcoming job interview with TSN to be an on-air sportscaster. Shortly after leaving his pastor's home, Messrs. Ahmed and Adem got into his car and shot him to death. It was a senseless and brutal murder.
[23] The impact of Mr. Gayle's death on his family has been profound. As I have said, a voluminous brief of the VISs that were filed with the Court in relation to the sentencing of Mr. Ahmed for murder were also filed before me.
[24] Mr. Gayle’s mother delivered her VIS to me orally. Naturally much of what she said was directed at the loss of her son and Mr. Zeno is not at all responsible for that. However, it is clear from her words that his actions, as she put it, compounded her suffering. She spoke of the fact that Messrs. Adem and Ahmed came to Mr. Zeno, laughing about what they had done, and rather than encourage them to turn themselves in or going to the police himself, Mr. Zeno came up with a plan to whisk the two killers away to help them escape justice and had a party with them. She added that the “three of them sat around, drinking, talking, and …. [w]hile the three criminals were all laughing, my son’s body laid in a morgue, as the policemen made their way to my home to inform me of the heart wrenching news of my son’s death”. She also spoke of the fact that Mr. Zeno used her son’s death to brag about himself to the undercover officers even after he had all the details of how her son died and that he used disrespectful and dismissive language to talk about her son’s dead body.
[25] Ms. Gayle went on to comment about that fact that at the trial of Messrs. Adem and Ahmed Mr. Zeno lied to Justice Byrne and the jury and she was very worried and in despair about the possibility that they would not be convicted as a result. I understand from Mr. Zambonini who was the senior Crown in that case, that Mr. Zeno took the position at that trial, unlike his position before me, that his entire Confession was false, and that Messrs. Adem and Ahmed never told him they had murdered Mr. Gayle. Mr. Zambonini advised that the Crown is considering perjury charges. I have not considered this information in determining a fit sentence.
Pre-sentence Credit – Summers Credit
[26] Mr. Zeno was arrested on April 26, 2019. He remained in custody until his release on bail on November 2, 2021 – a period of 30 months and seven days. Of that time in custody, 20 days was used to give him credit for presentence custody for his conviction on April 9, 2021. Counsel agree that after giving Mr. Zeno credit on a 1.5 to 1 basis for the balance of his time in custody, he is entitled to a Summers’ credit for pre-sentence custody of 44 months.
Duncan Credit
[27] Mr. Zeno did not file an affidavit in support of his claim for enhanced pre-sentence credit given conditions while he has been in custody, no doubt because his counsel is of the view that his sentence should be significantly less than 44 months. I do however have the lock down records of the three institutions where he was in custody. Should I need to consider a Duncan credit, counsel agree that in light of R. v. Bristol, 2021 ONCA 599, at para. 11, there is no dispute that even without evidence from Mr. Zeno, that I can consider that there has been some adverse impact on how his time in custody was spent as his entire period in custody was during the COVID-19 pandemic.
Conditions of Release
[28] There is no claim by Mr. Zeno for any additional pre-sentence credit because of the terms of his release on bail.
The Positions of Counsel
[29] The Crown submits that a sentence in the range of four to five years is appropriate in this case. Accessory after the fact to murder is a secondary designated offence for DNA and the Crown also requests that Mr. Zeno be ordered to provide a sample of his DNA. In addition, the Crown submits that a period of probation with terms designed to keep Mr. Zeno from reoffending would be to his and society's benefit, particularly:
a) Seek and maintain gainful employment or attend school. b) Do not associate with individuals known to you to have a criminal record. c) Take counselling for alcohol or other addiction as recommended by your probation officer and sign releases in order for them to monitor his attendance at such counselling.
[30] It is the position of the defence that a sentence of between 18 and 24 months is appropriate. It is also submitted that Mr. Zeno has already been both rehabilitated and deterred from further criminality and so probation is not necessary and would only expose Mr. Zeno to further charges given his poor record of reporting while on probation.
Legal Parameters
[31] The maximum sentence for accessory to the fact to murder is imprisonment for life, pursuant to s. 240 of the Criminal Code. There is no mandatory minimum.
Sentencing Case Law
[32] Accessory after the fact to murder covers a very broad range of conduct, and no two cases are entirely alike. Not surprisingly then the cases filed by counsel demonstrate that there is a wide range of sentences imposed for the offence of accessory after the fact to murder. In addition, in this case counsel were at odds as to where Mr. Zeno’s conduct falls in terms of seriousness because unlike in some of the cases, he was not present at the time of the murder and did not participate in disposing of the body and was not coerced or threatened to assist in the way he did.
[33] A good starting point is the decision of Watt J. when he was with this court in R. v. Wisdom, [1992] O.J. No. 3110 (Gen. Div). Despite the fact that this case was decided over 20 years ago, it is referred to in almost all the cases I have reviewed. In that case Mr. Wisdom pleaded guilty to the offence of accessory after the fact to murder. The murder was committed in the context of a drug deal gone bad. Mr. Wisdom believed he had been shortchanged on the product he purchased. He retaliated with the assistance of Mr. Vernon Leblanc who committed the killing. Mr. Wisdom assisted by helping Mr. Leblanc dispose of the victim's body and expertly and very deliberately clean up the crime scene over a period of two days Mr. Wisdom pleaded guilty and was sentenced to five years imprisonment. Justice Watt stated at paras. 29 to 31:
[29] As it would appear to me, it is of the utmost public importance that all who are knowingly in touch with criminals and who might be minded, for whatever reason, to offer or furnish their assistance, ought to be alive to and fully cognizant of the fact that should they receive, comfort or assist them in order to enable them or a principal to escape, then they, the accessories, themselves run a substantial risk of losing their own liberty for a very significant period of time.
[30] The factor or principle of superordinate importance in cases such as at present, in my respectful view, is that of general deterrence. The courts, whose task it is to ensure the due administration of justice, must devoutly set their face against and display their denunciation of any conduct, whether during the investigation or upon the trial of alleged offenders that seeks to or does interfere with it. Put shortly, we shall brook no interference, actual or attempted with the proper investigation of crime, as well as the proper trial of alleged offenders. Those who set out with such a purpose shall be punished, and severely.
[31] There would not appear a significant body of authority to establish the governing principles, nor mark the appropriate range of sentence for a case such as at present. To the extent that there is any common ground ascertainable amongst the scanty precedent available, it would appear to be that, generally, such conduct attracts a sentence of incarceration. To be sure, the range of sentence imposed varies considerably, as might be expected in the case of any offence where maximum punishment is imprisonment for life. In exceptional cases, as for example, R. v. Turpin, an unreported decision of Chadwick, J. rendered February 7, 1990, the passing of sentence may be suspended and an accused ordered to comply with the provisions of a probation order. [Emphasis added]
[34] At para. 32, Watt J. provided a non-exhaustive list of factors that are of assistance in determining a fit sentence:
It would be idle to endeavour a complete catalogue of the factors whose presence or absence may inform a determination of the nature and/or the quantum of sentence to be imposed. Relevant factors or considerations may include, however,
(a) the nature, extent and duration of the accessory's involvement; (b) the age and experience of the accessory; (c) the nature, extent and duration of the relationship, if any, between the accessory and the relevant principal; (d) the presence or absence of any coercion of or threat to the accessory or others to obtain the accessory's participation; (e) the nature of the accessory's assistance; and, (f) the antecedents, present status and realistic prospects of the accessory.
[35] Mr. Zambonini referred to R. v. Crawford, 2018 ONSC 7582, [2018] O.J. No. 6697 where Di Luca J. considered the appropriate sentence for a man who pleaded guilty to accessory after the fact to murder. The offender attempted to clean and conceal the hammer used in the murder. Di Luca J. considered a number of decisions and concluded at para. 31, that the "cases support a range of sentence of approximately 3 to 5 years for roughly similar offences committed by roughly similar offenders,” emphasis added. Mr. Crawford was 30 years old, had a very difficult upbringing, had a long history of drinking, had attempted suicide at least twice and had a very lengthy criminal record of 45 convictions although the longest sentence was nine months for assault cause bodily harm. Despite this there was a prospect of rehabilitation. A four-year sentence was imposed. Mr. Zamboni argues that hiding a hammer used in the murder is by analogy similar to attempting to hide the persons who committed the murder as Mr. Zeno did in this case. I agree.
[36] Justice Di Luca stated at para. 31 that cases that fall below the three-year mark tend to be cases where the defendant has no criminal record, has entered a guilty plea, is not involved in “significant acts involving the deceased or evidence relating to the murder”, and often involve cases where pressure has been placed on the defendant to participate in the offence. Again, he referenced a number of cases in support of that conclusion.
[37] Mr. Zambonini also relies on R. v. Dow, 2003 NSSC 82, 214 N. S.R. (2d) 33, a case where the offender, pleaded guilty to acting as an accessory after the fact on the basis that he had come into possession of a gun, knowing that the day before it had been used in a murder. He then placed it in a secure hiding spot from which it was later removed (I infer by someone else). As a result, it was never recovered by the police. The offender had an extensive previous criminal record. In those circumstances the sentencing judge acceded to a joint submission for five years' imprisonment.
[38] Mr. Fitzmaurice referred me to the recent case of R. v. Johnson, 2022 ONSC 5689 at paras. 51-54, where Kelly J. considered the sentencing decisions for accessory after the fact to manslaughter and murder relied upon by the Crown and defence in that case. Although she did not set out her view as to an appropriate range of sentence, the sentences in the cases she referred to ranged from 18 months at the low end to five years at the high end.
[39] Both Crawford and Johnson refer to a British Columbia decision, R. v. Steadman, 2008 BCSC 1613, which is a case that the defence relies upon in support of Mr. Zeno’s position that an 18-month sentence is appropriate in this case. In Steadman, Barrow J. conducted a comprehensive review of sentences for accessory after the fact to murder where the offender was either aware that the murder was going to be committed beforehand or helped dispose of the body, or both. He concluded that the cases disclose that a range of sentence for an offender whose involvement was significant and who was not subject to threats of serious harm between 18 months at the low end and five years at the upper end.
[40] Mr. Steadman was convicted, by a jury, of being an accessory after the fact to murder and obstruction of a police officer. Mr. Keith Black was murdered by his wife, Ronda. Ronda arrived at Mr. Steadman’s house following the murder. She had the bloody knife. Mr. Steadman drove her to the mountains where he helped Ronda to dispose of the knife and the body. He then lied to the police. He had no criminal record, was 54 years of age, had a steady employment history and the support of his community. Mr. Steadman was sentenced to four years imprisonment.
[41] Although both counsel referred to out of province sentencing decisions, I have paid more attention to the cases from Ontario because I find that individual provinces sometimes have their own distinct sentencing ranges. There are cases referred to in Wisdom, Crawford and Johnson that confirm that depending on the circumstances, a non-penitentiary sentence can be appropriate in some cases.
[42] I have reviewed all of the other sentencing decisions referred to in Crawford and Johnson. The facts of the offence and the circumstances of the offender in each case vary so much that it is difficult to see a pattern. However, I do agree with Justice Di Luca that the cases where the offender was given a sentence of less than three years tend to be cases where there was a guilty plea and/or other mitigating factors. Of the cases I have reviewed there are two that have some similarity to the case at bar, that I found to be most helpful.
[43] R. v. Whyte, 2016 ONSC 518, is a decision of Forestell J. Ms. Whyte was the girlfriend of Mark Moore who was charged with a number of murders. At the time of one of the murders, Mr. Moore was driving a blue Honda. Ms. Whyte was the registered owner of the car. Sometime after the murder someone - likely Mr. Moore - changed the colour of the car. About one year after the murder police publicly expressed an interest in a blue Honda in relation to the murder. Ms. Whyte, at the urging of Mr. Moore, then attended the Ministry of Transportation and changed the registration of the car to reflect the new colour. Ms. Whyte was found guilty by a jury of accessory after the fact to murder. By the time of her sentencing hearing, she had served the equivalent of three years and seven months.
[44] Justice Forestell had the benefit of the reasons of the Court of Appeal for releasing Ms. Whyte on bail. She relied on the views of Tulloch J.A. as to the likely sentence Ms. Whyte would receive if she pleaded guilty at that time, namely three years. Justice Forestell reasoned that although the absence of the mitigating factor of a guilty plea would result in a somewhat longer sentence than the three years mentioned by the Court of Appeal, it did not take the case beyond the length of imprisonment that has already been served by Ms. Whyte. She therefore did not find it necessary to review the cases addressing the appropriate sentence for this type of offence, at Whyte, at para. 10.
[45] Justice Forestell went on to note the aggravating and mitigating factors present in the case, at para. 11, including the fact that the actions of Ms. Whyte were not impulsive but well thought out over a period of time and the fact that Ms. Whyte was on probation at the time of the offence. Mitigating factors were that Ms. Whyte was quite young - 25 years of age at the time of the offence and was a first-time offender. She had also shown an ability to rehabilitate herself during her time on bail. Justice Forestell concluded at para. 11 that considering the circumstances of the offence and the offender, a sentence of three and one-half years' imprisonment was the sentence that she would have imposed before credit for pre-trial custody. She saw the request by the defence for a suspended sentence as not appropriate and held at para. 12, that Ms. Whyte's record should reflect the seriousness of the offence and that a sentence of one day in jail and credit for pre-trial custody more accurately reflected the seriousness of the offence. Finally, Forestell J. declined the request by the Crown to add a period of probation, finding that the objective of rehabilitation had been addressed by the circumstances of Ms. Whyte's release on bail.
[46] In R. v. Jayawardena, [2008] O.J. No. 3406 (S.C.J.), the murderer and his girlfriend fled to Hamilton after the offence. Mr. Jayawardena pleaded guilty to being an accessory after the fact to first degree murder. Mr. Jayawardena, his girlfriend and the girlfriend of the murderer, who was Mr. Jayawardena’s girlfriend’s roommate, all assisted in a plot to help the murderer leave the country. Save for the murderer, they were all students at McMaster University. Mr. Jayawardena assisted the murderer by getting a passport; disposing of the car and the licence plates of the car used in the killing and getting him a cell phone. As Mr. Jayawardena came to know more details of the murder, he continued in his efforts to help the murderer escape. The offender also lied under oath to the police as did his girlfriend, in a manner that suggested collusion.
[47] Justice McCombs found that the offender was not motivated by desire to help the murderer but rather a misguided desire to help his close friend get her boyfriend out of the country and a desire to extricate his girlfriend from the situation. He was a first-time offender and in his second year of university at the time of his arrest. The stress from his arrest caused him to stop his studies and he had been working for bank for a significant period of time. He had a loving and supportive family and had repeatedly shown remorse, regret and shame for his actions. He had come to understand the seriousness of his conduct and he apologized for the pain that he caused the family of the deceased.
[48] Justice McCombs referred to Wisdom with approval, but he recognized that there was much to be said in mitigation of sentence on behalf of Mr. Jayawardena. He held that restorative principle should be emphasized as the offender intended to continue to work to become a responsible and contributing member of society. Justice McCombs also found it unlikely that the offender would re-offend and accepted that he was remorseful. He was sentenced to 18 months’ imprisonment and probation for one year.
[49] In my view, comparing the circumstances of these two cases, the case of Whyte is closer to the facts of the case at bar. The strong mitigating circumstances in Jayawardena are mostly not present in the case at bar. Having reviewed the cases referred to me by counsel and the cases referred to in those decisions, I would say that a sentence as low as 18 months would be rare. The cases are more consistent in imposing a penitentiary sentence as Justice Watt stated in Wisdom.
Principles of Sentencing
[50] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society, when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.
Determination of a Fit Sentence
[51] The fact that Parliament has singled out the offence of accessory after the fact to murder as warranting a sentence as high as a life sentence – the most serious penalty available in Canada, makes it clear that the offence committed by Mr. Zeno is one of the most serious of crimes. For the reasons expressed by Watt J. in Wisdom at paras. 29 and 30, in determining a fit sentence for Mr. Zeno I must emphasize the principals of denunciation and general deterrence. Society must express its collective condemnation of assisting murderers, and as Watt J. pointed out in Wisdom, at para. 29, those who might be inclined to provide such assistance need to be deterred by the understanding that they "run a substantial risk of losing their own liberty for a very significant period of time".
[52] In my view there is also a need for specific deterrence in this case given Mr. Zeno’s criminal record, particularly as I have no evidence that suggests Mr. Zeno takes his conduct in committing this crime seriously. That said I must consider Mr. Zeno’s age, prospects for rehabilitation and the fact that before his arrest he had never spent more than 50 days in jail. As Moldaver J. stated when he was on the bench of this Court, in R. v. B. (J.A.), [2004] O.J. No. (C.A.) at para. 85, the fact that the defendant had never served a substantial penitentiary sentencing was a mitigating factor as it made it more likely that the sentence would have a deterrent effect, stating “although the [defendant’s] longest previous custodial sentence of sixty days did not attract his attention, the substantial penitentiary sentence that he is now facing hopefully will”. Hopefully the considerable period of time in custody that Mr. Zeno has already served has had a specific deterrent effect on him.
[53] In reaching my conclusion about the appropriate sentence for Mr. Zeno, I must also consider the fact that before Mr. Zeno was incarcerated waiting trial for this offence, he had never served a custodial sentence. As Rosenberg J.A. observed in R. v. Borde, (2003), 63 O.R. (3d) 417 (C.A.), at para. 36: "[t]he length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to a penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives." That said, this principal is moderated by the seriousness of this offence, including the moral blameworthiness of Mr. Zeno.
[54] In my view the following facts are aggravating factors relevant to the sentence I should impose in this case:
a) Mr. Zeno has a criminal record however as submitted by the defence, there are no crimes of violence. His criminal record does show however a significant disregard for court orders; b) There is no evidence that Mr. Zeno was threatened or coerced by Messrs. Adem and Ahmed. In fact, it seems it was his idea to take them out of the neighbourhood by cab to a motel across the city to evade police; c) Mr. Zeno was young, but he was older than Messrs. Adem and Ahmed d) Mr. Zeno and Messrs. Adem and Ahmed were just friends – Mr. Zeno was not helping a family member or someone he was in a romantic relationship with; e) Given what Mr. Zeno stated to the undercover officers he had no appreciation of the seriousness of his conduct at the time he committed the offence and there is no evidence that he has gained any appreciation of how serious this offence is; f) Mr. Zeno’s conduct in partying with Messrs. Adem and Ahmed and bragging about the help he gave Messrs. Adem and Ahmed to the undercover officers compounded the suffering of Mr. Gayle’s mother and I am sure the rest of his family and friends; and g) Although Mr. Zeno was not present at the time of the murder of Mr. Gayle, I agree with Mr. Zambonini that his decision to help Messrs. Adem and Ahmed leave the neighbourhood was analogous to assisting the murderers in hiding the murder weapon.
[55] As for mitigating factors, Mr. Zeno cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. In addition, Mr. Zeno has shown no remorse for his actions. In the same vein, Mr. Zeno has not apologized to the family of Mr. Gayle for the additional upset and hurt his actions caused them as for example the offender did in Jayawardena. Although these are neutral factors in the sense that I cannot penalize Mr. Zeno for these facts, these facts do distinguish the case at bar from many of the cases referred to by counsel.
[56] I do agree with Mr. Fitzmaurice that there are some aggravating factors not present in the case at bar. As already stated, Mr. Zeno was not present at the time of the murder. Furthermore, he did not assist in moving or disposing of the body and his involvement did not span a series of days. However, I do not accept Mr. Fitzmaurice’s argument that Mr. Zeno’s decision making occurred for only a little more than an hour, namely from the time that Mr. Zeno was told about the murder when he was in the parking garage around 9:16 p.m. to the check in time at the motel of 10:25 p.m. In Mr. Zeno’s Confession he told the undercover officers that he saw news of the murder on the television in the motel. Furthermore, having bought a bottle of Hennessey it is reasonable to infer that Mr. Zeno stayed with his friends to party until the next morning, notwithstanding knowing what they had done and his role in getting them to the motel. Mr. Zeno also suggested in his Confession to the officers that he had some idea of where Messrs. Adem and Ahmed went afterwards, and he was partying with them a few days after the murder.
[57] Mr. Fitzmaurice argues that as a mitigating factor I should consider the fact that Mr. Zeno’s conduct did not ultimately interfere in the investigation of the murder of Mr. Gayle and the fact that the police first learned of Messrs. Adem and Ahmed’s involvement in the murder from Mr. Zeno. I do not accept that submission. In my view it is the potential of the conduct of the offender in a case like this, not the outcome, that is important. Certainly Mr. Zeno should not be rewarded in some way for inadvertently helping police find out who had murdered Mr. Gayle, particularly when he resiled from his Confession at the murder trial of Messrs. Adem and Ahmed.
[58] Mr. Fitzmaurice also argued that this crime was caused by a series of exceedingly unlikely coincidences. He argued that Mr. Zeno rarely had money but had money that had been given to him, he was able to increase that money by gambling, when he was dropped off by the officers he wanted to buy a bottle of Hennessey and celebrate with them and that Mr. Zeno would likely not have committed the offence had he not been provided the means to do so by the undercover officers only hours earlier. Mr. Fitzmaurice submitted that “ironically, had the officers accepted Mr. Zeno’s offer to hang out, the offence would never have been committed”. Many crimes are committed when an opportunity presents itself but, in my view, that is no excuse. These facts are totally irrelevant to what is a fit sentence in this case. Mr. Zeno made a deliberate decision to help his friends escape the police and the fact he had the means to do what he did because of the events earlier that day is not relevant.
[59] The prospect of rehabilitation, particularly given Mr. Zeno’s relative youth, is an important consideration. I accept that the fact Mr. Zeno has been in the community for the past 16 months and has not reoffended is a very good sign. In terms of Mr. Zeno’s actual rehabilitation however, I do not have much evidence to rely upon apart from Mr. Zeno’s self-reporting, which for obvious reasons may not be reliable.
[60] I have already summarized the information obtained by the author of the PSR from Mr. Zeno and his mother. Mr. Zeno’s employment history is very spotty, but he advised that he has now been employed for three months as a racker. Although he did not provide any documentary evidence to support this, such as pay slips, I am prepared to accept this is the case as he was able to show his bank statements to the author of the PSR.
[61] Mr. Zeno also advised the author of the PSR that he no longer has any problem with his former addiction to alcohol and no longer consumes narcotics but again I have only his statement and his mother’s advice that he is a “good boy now”. In the past Mr. Zeno’s alcohol addiction caused him to steal and that appears to have accounted for much of his criminal record. Given that he has been out on bail with minimal conditions for 16 months and has not re-offended the author of the PSR stated that it appears Mr. Zeno has managed to keep his use of alcohol under control.
[62] Mr. Zeno told the author of the PSR that he no longer associates with the criminal element present in his neighbourhood and for at least the last few months he has lived in the same neighbourhood where he was when the offence was committed without getting into trouble with the law. Before that I understand he was in Vancouver.
[63] Considering all of the aggravating and mitigating factors, in my view a fit sentence in this case for Mr. Zeno is three- and one-half years. This sends a strong message to Mr. Zeno and others like him that assisting someone who has committed an offence to escape police gives rise to a substantial risk of a significant sentence, likely in the penitentiary.
[64] Given Mr. Zeno has a Summers’ credit for pre-sentence custody of 44 months, he has served his sentence without consideration of any mitigation for the conditions of his incarceration during COVID-19 pursuant to Duncan. Had that been necessary I would have reduced Mr. Zeno’s sentence somewhat, but that issue is now moot.
[65] With respect to the Crown’s suggestion that there be a period of probation, Mr. Fitzmaurice argues that this is not necessary because the sentence Mr. Zeno has already served has achieved those objectives, relying on the PSR and the fact that Mr. Zeno has been able to stay out of trouble since his release. It is submitted that Mr. Zeno has proved that he can do it on his own, and so he should be allowed to continue doing so.
[66] I had serious doubt about that submission and seriously considered imposing a period of probation despite Mr. Zeno’s history of poor reporting, and risk, as a result, of re-offending. I believe there are certain terms that I can only impose through a period of probation that would benefit Mr. Zeno. The author of the PSR appears to be concerned about whether or not Mr. Zeno can stay out of trouble without the support of probation. I share those concerns. He points out at the end of the report:
If [Mr. Zeno] can sustain this motivation then some progress could be made however he will have to demonstrate these life choices; over a sustained period of time, if he intends to avoid further conflict disassociating himself from environments that heighten the likelihood of him engaging in anti-social activity.
In light of this it is this writer’s view that based on the information presented, the subject would appear to benefit from addressing the following identified risk factors, to mitigate the potential for further offending: decision making and problem-solving skills, companions, education/employment issues, anti-criminal thinking, and substance use. Likewise, he would in this author view benefit from counselling in respect of understanding the impact his father’s death has had upon him. Such resources are available in the community, this office having an assigned trauma counsellor and the subject should be encouraged to make use of such resources should community supervision be any part of a sentencing disposal. [Emphasis added]
[67] Given that Mr. Zeno has served a sentence in custody that is longer than the sentence he would have been given, had he been released on bail earlier, I have decided not to impose a term of probation. I sincerely hope however that Mr. Zeno reaches out for help should he have difficulty maintaining his resolve to stay away from alcohol and narcotics and the criminal element in the area where he lives, as resources are available in the community that he can access himself such as Alcoholics Anonymous.
Final Disposition
[68] Mr. Zeno please stand.
[69] With respect to your conviction for accessory after the fact to murder, I impose a sentence of one day in jail in addition to pre-trial custody of 30 months and seven days credited as 44 months. The Indictment will reflect that the credit for pre-sentence custody includes all of the time you have been in custody on the charge before this Court to the date of this sentencing.
[70] There will be a prohibition order under s. 110 of the Criminal Code for 10 years.
[71] The offence of being an accessory after the fact to murder is a secondary designated offence under the Criminal Code. The seriousness of this offence weighs in favour of a DNA order as compared to the impact on your privacy and security. I therefore make an order pursuant to s. 487.051(1)(a) that you provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.
SPIES J. Released: March 10, 2023