COURT FILE NO.: CR-23-50000019-0000 DATE: 20240426

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HIS MAJESTY THE KING - and – ABDIRASHID ADAM

Counsel: Ken Lockhart and James Frost, for the Crown Talman Rodocker, for Mr. Adam

HEARD: March 22, 2024

J. M. BARRETT J.

Reasons for Sentence

Overview

[1] Mr. Abdirashid Adam shot and killed Jovanh McKnollys on July 20, 2021. On July 22, 2021, he was arrested and charged with first degree murder. On December 14, 2023, following a four-week jury trial, he was found guilty of manslaughter. On March 22, 2024, a sentencing hearing was held during which evidence was filed and submissions were heard. Mr. Adam is now before the court to be sentenced.

Circumstances of the Offence

[2] On July 19 and 20, 2021, over the course of approximately twenty-four minutes, security camera recordings captured the events before and after Mr. McKnollys was shot and killed. [2] However, there was a thirty-second gap in the recordings. It was during this short gap that the shooting occurred.

[3] The shooting occurred at 12:03 a.m., in the back parking lot area of a plaza at 235 Dixon Road. This was about twenty minutes after Mr. McKnollys arrived at the plaza. Security camera recordings show that Mr. McKnollys arrived at 11:43 p.m. on July 19, 2021. He was with four other males. He and his friends entered Istar Restaurant, a popular Somalian eatery. As Mr. McKnollys stood waiting with his friends at the cash counter of Istar, the car in which Mr. Adam was travelling pulled into the parking lot. It was a silver Mazda. Mr. Adam was a back seat passenger. Mr. Adam’s friends, Ynus and Zack, were in the front seat. As the Mazda pulled into a parking spot at the front entrance of Istar, its lights were visible from inside Istar. Once parked, Ynus and Zack got out and approached Istar’s front window. They peered inside but promptly returned to the Mazda.

[4] As Ynus and Zack returned to the Mazda, Mr. McKnollys walked towards the front door of Istar. As Mr. McKnollys exited Istar, he appeared to utter words to Mr. Adam who was standing near the rear passenger door of the Mazda. At the time, they were strangers. The ten-second exchange of words occurred at 11:49 p.m. After it ended Mr. McKnollys walked away in the direction of a breezeway in the center of the plaza. The breezeway led to the rear of the plaza where Mr. McKnollys’ car was parked. As Mr. McKnollys walked away, Mr. Adam got into the back seat of the Mazda. The Mazda drove off.

[5] Mr. Adam’s movements after he left the plaza, were also captured by security cameras. At 11:51 p.m., the silver Mazda pulled up to the main entrance of an apartment building at […]. Mr. Adam got out and took the elevator to the […] floor. [3]

[6] At 11:53 p.m., Mr. Adam entered his mother’s apartment. At 11:57 p.m., he left wearing different clothes and carrying a black satchel. Mr. Adam walked directly back to the plaza. Rather than going to the front of the plaza, he walked along the back darkened laneway behind Istar. This led directly to the area where Mr. McKnollys’ car was parked. Mr. McKnollys was standing near the passenger side door of his car. As Mr. Adam walked along the back laneway, he put his hand in his black satchel. The satchel contained his loaded and chambered Glock handgun. Mr. Adam was off camera for about thirty seconds. It was during this period that Mr. Adam fired his handgun four times. One bullet struck Mr. McKnollys. Other bullets struck Mr. McKnollys’ car in the area of the passenger side mirror and the front bumper.

[7] Once shot, Mr. McKnollys ran through the breezeway to the front of the plaza before collapsing face first on the pavement. He was later confirmed dead. In his right hand was a loaded Glock semi-automatic handgun. His finger was on the trigger. The gun discharged as Mr. McKnollys fell to the ground. Mr. McKnollys was with two of his friends at the time he was shot. Security camera recordings show his two friends running at full speed from the back parking lot. One ran into Istar to alert the other two members of their group who then fled the scene in what appeared to be a highly panicked state.

[8] Pathologist Dr. Jennifer Dmetrichuk testified that Mr. McKnollys was killed by one gunshot wound to his right chest. It caused Mr. McKnollys’ lungs to collapse and fill with blood. The projectile removed from Mr. McKnollys’ chest was heavily deformed. Given the deformity, Dr. Dmetrichuk and firearms expert, Dr. Elspeth Lindsay, opined that the lethal bullet struck an intermediary object before it entered Mr. McKnollys’ chest.

[9] After firing his gun four times, Mr. Adam ran back through the laneway. He returned to his mother’s apartment. He put his Glock handgun in his bedroom closet under clothes where it was later found by police when searching the apartment pursuant to a warrant.

[10] Mr. Adam’s evidence was the only testimony that addressed the events during the thirty-second gap in the security camera recordings at the time of the shooting. Mr. Adam testified that he acted in self-defence. He claimed that he only returned to Istar because he was hungry, having fasted for several hours. He thought Mr. McKnollys would be gone. But, being cautious, he used the back laneway. He planned to enter Istar using its back door as he had done on other occasions. Once in the back laneway of the plaza, Mr. Adam saw that Istar’s back door was closed. He decided to walk around the back of the plaza to the breezeway and use the front entrance. He claimed that as he rounded the corner at the back of the plaza, he heard a loud shout. When he looked, he saw a male pointing a gun at him. He did not recognize the male. Fearing for his life, he instinctively pulled out his gun and fired. He did not intend to shoot anyone. He was not angry at the time of the shooting. Mr. Adam testified that he was annoyed that Mr. McKnollys had insulted him earlier, but simply viewed Mr. McKnollys as a “loudmouth kid”.

[11] The jury rejected that Mr. Adam acted in self-defence.

Circumstances of the Offender

[12] At the time of the jury’s verdict, I asked whether a pre-sentence report or a Morris report should be ordered. Counsel for Mr. Adam declined, as he was confident that he could provide sufficient information regarding Mr. Adam’s background to the court. Days before the sentencing hearing, defence counsel filed an adjournment application for purposes of obtaining a Morris report. However, this application was abandoned after it was learned that a Morris report would postpone the sentencing hearing by up to one year, or longer. Defence counsel agreed that given his history with Mr. Adam, including representing him on charges related to Mr. Adam’s one prior conviction, he could provide the court with detailed information about Mr. Adam’s background. I am satisfied that the extensive materials filed provide ample information that is sufficient to determine a fit sentence for Mr. Adam.

[13] Mr. Adam was born in Kenya on September 11, 1988. He came to Canada with his mother as an infant. He was 32 years old at the time of the offence. He is now 35 years old.

[14] Mr. Adam was raised by his single mother. He has four siblings. He had a challenging childhood. His mother remarried briefly to a man who showed no interest in, or affection for, Mr. Adam. Despite these challenges, Mr. Adam graduated from Thistletown Collegiate in 2008, at the age of nineteen. He then attended college where he obtained a diploma in network engineering. He worked throughout high school. He has never consumed drugs or alcohol.

[15] Mr. Adam is the father of a six-year-old daughter, born in 2017. After his daughter was born, Mr. Adam joined his brothers in Alberta for work on the oil sands. He wanted to provide for his family. Mr. Adam returned every few months to visit his daughter and mother. On his last visit, he arrived in Toronto on July 7, 2021. He was to return to Alberta on August 30, 2021.

[16] At the sentencing hearing, Mr. Adam filed the following letters of support:

i. Letter from Rahma Mohamed: Ms. Mohamed has known Mr. Adam all his life as she is one of his cousins. She described Mr. Adam as a “kind and quiet soul, with a deep-seated love for helping his mother and sister”. He is also a dedicated father who left Ontario to provide for his family. Having left, Mr. Adam returned regularly. She believes Mr. Adam has rehabilitative potential and describes the impact of his incarceration on his family as “profound”.

ii. Letter from Abdilatif Yusuf: Mr. Yusuf is Mr. Adam’s brother. He describes Mr. Adam as a humble, hardworking and respectful person. He was both troubled and surprised when he learned of what happened.

iii. Letter from Portley Ghartey-Johnson: Mr. Ghartey-Johnson has known Mr. Adam since elementary school. He describes Mr. Adam as a role model within the community. He believes Mr. Adam has much to offer to society. He asks for leniency in the sentence imposed.

iv. Letter from Munira Yusuf: Mr. Adam’s sister, Ms. Yusuf, attended court daily with her mother. She is a registered social worker. She wrote a compelling and compassionate letter on behalf of both she and her mother. She believes Mr. Adam is remorseful for his actions. He is a committed father, son, and brother. She described her brother as a “kind, hardworking, and friendly person” who has tried to better his own circumstances through his “remarkable resilience and determination to overcome adversity”. Part of that adversity is Mr. Adam’s difficult childhood, living with a stepfather who was neglectful and emotionally abusive. She believes Mr. Adam has great potential to be a valuable member of society.

[17] Mr. Adam has a dated criminal record. It consists of one prior conviction from March 2012. He was convicted of Fail to Comply. He received a suspended sentence with 12 months’ probation after being credited for 14 days of pre-sentence custody. He has been in custody since his arrest on July 22, 2021. He has made some good use of this time, having completed eight programs for which he was awarded certificates. All were completed in February and March of 2024 and focused on behavioural insight and change, including anger management, managing stress, goal setting, changing habits, and problem solving.

[18] At the sentencing hearing, the defence filed records from the Toronto South Detention Centre (“TSDC”) and the Toronto East Detention Centre (“TEDC”). The records confirm the assertion in Mr. Adam’s affidavit that his pre-sentence detention has been subject to repeated lockdowns. After his arrest on July 22, 2021, Mr. Adam was detained at the TSDC until September 3, 2023. This totals 775 days, of which 239 days were impacted by either full or partial lockdowns mainly due to staff shortages. Many of the lockdowns were for three or more consecutive days. Since September 2023, Mr. Adam has been at the TEDC where he has spent 21 days in a cell with two others. His time at the TEDC has also been subject to some lockdowns due to staffing shortages.

[19] On sentence, Mr. Adam filed an affidavit which described the impact of these lockdowns on his well-being. He believes the harsh conditions have made him less alert and less verbal. It has heightened his anxiety and tension.

[20] Mr. Adam expressed “profound remorse and deep regret” in his affidavit. He wrote that had he “not returned to Istar in July 2021, none of this would have happened”. As a parent, he knows the “enormity of the loss felt by others” from the death of a loved one.

Positions of the Parties

[21] The Crown seeks a jail sentence of 11 years’ imprisonment, less credit for pre-sentence custody. The Crown requests the following ancillary orders: a DNA order under s. 487.051(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46; a 10-year weapons prohibition under s. 109(2) of the Criminal Code; a forfeiture order pursuant to s. 491 of the Criminal Code in relation to the handgun and ammunition seized by the police; and, a non-communication order pursuant to s. 743.21 of the Criminal Code.

[22] The defence seeks a sentence of 5 years’ imprisonment, less credit for pre-sentence custody. The defence is not opposed to any of the ancillary orders requested by the Crown.

[23] The parties agree that Mr. Adam is entitled to the standard credit of 1.5 days for each of his 1,010 days spent in pre-sentence custody: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. Applying this credit, he has now served the equivalent of 1,515 days. I will regard this as the equivalent of 4.25 years.

[24] There is no dispute that his time in pre-sentence custody has been subject to numerous lockdowns. While the parties agree that the conditions of Mr. Adam’s pre-sentence custody are a relevant mitigating factor, they disagree on how the court ought to consider it. The defence asks that for each lockdown day, Mr. Adam be credited with a half day (0.5). The Crown relies on R. v. Marshall, 2021 ONCA 344, at paras. 50, 52, in resisting any mathematical calculation. Instead, the Crown argues that this is a mitigating factor that is already reflected in the Crown’s submission that a sentence of 11 years’ imprisonment is appropriate.

Findings of Fact

Process

[25] Section 724(2)(a) of the Criminal Code requires me to consider and “accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”: R. v. Brown, [1991] 2 S.C.R. 518, at p. 523; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18. This requires that I “identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender”: R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 106. I must not accept as fact any evidence consistent only with a verdict that was rejected by the jury: Brown, at p. 523; Ferguson, at paras. 17, 21.

[26] Having made findings of fact that are necessarily inherent in the jury’s verdict, s. 724(2)(b) of the Criminal Code directs that I may then “find any other relevant fact that was disclosed by evidence at the trial to be proven”. This must be done without trying to reconstruct the jury’s logic: Brown, at p. 523, Ferguson, at para. 16. I must engage in my own independent fact-finding exercise. In doing so, I must not find any disputed facts that are aggravating unless they have been proven beyond a reasonable doubt: Criminal Code, s. 724(3)(e). The court’s fact-finding function must be exercised with restraint. This requires that I “find only those facts necessary to permit the proper sentence to be imposed in the case at hand … [by] first ask[ing] what the issues on sentencing are, and then find such facts as are necessary to deal with those issues”: Ferguson, at para. 18.

Findings of Fact Necessarily Inherent in the Jury’s Verdict

[27] Essential to the jury’s verdict of manslaughter is that Mr. Adam did not act in self-defence when he fired his gun. This follows from the fact that the jury was instructed that the onus was on the Crown to disprove self-defence beyond a reasonable doubt. Failure to do so would lead to an acquittal. The jury was also instructed that if they were satisfied that self-defence had been disproved, then they must go on to consider whether the necessary intent for first or second degree murder had been proven beyond a reasonable doubt by the Crown. The verdict of manslaughter shows that the jury was not satisfied that Mr. Adam possessed the requisite intent for murder.

Factual Findings of the Court

Positions of the Parties

[28] Crown counsel and defence counsel base their respective positions on two vastly different interpretations of the evidence. As such, I am mindful of the principles set out in s. 724(3) of the Criminal Code. Before engaging with the analysis and coming to a conclusion, I will briefly outline these positions and review the evidence relevant to the disputed issues.

[29] Counsel agree that the gravity of the offence and Mr. Adam’s blameworthiness is informed by two factual determinations that I must make. The first is why did Mr. Adam return to the plaza? The defence position is that Mr. Adam returned to the plaza because he was hungry. It was by pure chance, not intention, that Mr. McKnollys was shot. The Crown position is that Mr. Adam returned to the plaza to confront Mr. McKnollys. While Mr. McKnollys’ death may have been an unintended consequence, it was the product of an intentional confrontation designed to scare, threaten, or intimidate Mr. McKnollys. The defence argues that the jury’s verdict shows that the jury accepted Mr. Adam’s testimony that he returned to the plaza because he was hungry. To find that the confrontation was intentional is inconsistent with the jury’s verdict.

[30] Related to the question of why Mr. Adam returned to the plaza is the second disputed issue, namely did Mr. Adam arm himself while at his mother’s apartment? The defence position is that Mr. Adam was armed for reasons entirely unrelated to Mr. McKnollys. Mr. Adam always carried a firearm for protection when out on the streets of Toronto. The Crown argues that the evidence establishes beyond a reasonable doubt that Mr. Adam returned to his mother’s apartment to get his firearm, intent on returning and confronting Mr. McKnollys after a brief and trivial verbal exchange.

The Evidence

[31] Mr. Adam testified that July 19th was a day of religious fasting. He went out with his friends, Ynus and Zack, so that they could end their fasting together with a meal. At about 10:30 p.m., they went to a taco restaurant. Mr. Adam had a small bite of his taco but did not like it. He put it in a brown bag and suggested to his friends that they go to Istar to eat. They drove to Istar but on arrival, Ynus and Zack peered inside, saw it was busy and returned to the car. Ynus and Zack decided to call it a night and dropped Mr. Adam off. Upon returning to his mother’s apartment, Mr. Adam realized he was still hungry. Although he still had the tacos he had ordered, Mr. Adam wanted a Somalian meal at Istar. Mr. Adam changed his clothes and left four minutes later carrying his black satchel. He walked back to the plaza. Because of the earlier confrontation with Mr. McKnollys, he decided to be cautious and took the back laneway. He planned to enter Istar using its back door as he had done in the past. When he saw that the backdoor to Istar was not propped open, he continued walking along the laneway. As he rounded the back corner he heard a male shout at him. When he looked, the male was pointing a gun at him. He instinctively fired his gun.

[32] Mr. Adam denied the suggestion that he returned to his apartment to get his handgun. Rather, he claimed he had his gun in his waistband the entire evening, including when playing basketball in a community courtyard and when at the taco restaurant with his friends. He explained that this was consistent with his habit of always carrying his gun when on the streets of Toronto. At the sentencing hearing, Mr. Adam filed an affidavit in which he asserted that his practice of carrying a handgun started after an incident in 2011 which “fundamentally altered [his] future”. He was cross-examined on this aspect of his affidavit. The details of this earlier incident are relevant as they provide important background information about Mr. Adam.

[33] In 2011, Mr. Adam and his girlfriend were at their local Pizza Pizza when Mr. Adam had a brief verbal confrontation with another male. It ended without incident as Mr. Adam left the restaurant through a back door at his girlfriend’s suggestion. The next night, however, Mr. Adam and his girlfriend were out walking when they realized they were being followed by the same male. The male was wearing a face covering. Again, at his girlfriend’s suggestion, Mr. Adam ran from the scene. This time, her efforts failed to diffuse the situation. The masked male pulled a handgun and held it to her head. Over the next fifteen minutes, Mr. Adam’s girlfriend was threatened with death and assaulted. The male – Keron Alvarez – said he intended to kill both her and Mr. Adam. After several minutes, Mr. Adam returned. Gunfire was exchanged. Both Mr. Adam and Mr. Alvarez were charged. As Mr. Adam was on release at the time and subject to a curfew, he was also charged with Fail to Comply. Mr. Adam was detained pending his trial. On the day of his trial, approximately nine months after his arrest, the Crown withdrew all offences other than the breach charge. The Crown explained that its review of the totality of the evidence supported a claim of self-defence. Mr. Adam pleaded guilty to the charge of Fail to Comply. He received a suspended sentence and 12 months’ probation after receiving credit for 14 days’ of pre-sentence custody.

[34] The details described above are based on court records filed by the defence at the sentencing hearing. Specifically, a transcript from March 19, 2012 was filed. This is the date when the Crown withdrew the firearm offences and Mr. Adam pleaded guilty to breaching his curfew. Also filed was the reported decision of R. v. Alvarez, 2014 ONSC 902, in which MacDonnell J. sentenced the male who attacked Mr. Adam’s girlfriend. The male, Mr. Alvarez, was sentenced to 10 years’ imprisonment for eleven offences, including attempt murder, unlawful confinement, assault, uttering death threats, and several firearm offences.

[35] In cross-examination, Mr. Adam testified that it was because of this incident that he started to carry a handgun. It was solely to feel safe. He purchased his first handgun in 2014 or 2015. Although he wanted to get a gun sooner, he could not afford one. Once purchased, he carried it on him every day, even when commuting on public transit. He would have it in his waistband. It was always loaded. The gun used to shoot Mr. McKnollys was purchased in 2017. He did not take the gun with him to Alberta. His safety concerns were only when he was in Toronto. Whenever he returned to Toronto, he would retrieve his gun from where he buried it and would carry it everywhere he went. It was always in his waistband.

Analysis

[36] Mr. Adam is not entitled to the most favourable interpretation of the jury’s path to conviction: R. v. S.P., 2024 ONCA 211, at para. 38; R. v. Nelson, 2014 ONCA 853, 16 C.R. (7th) 327, at para. 56. The failure to prove that Mr. Adam returned to the plaza with the intent to murder Mr. McKnollys does not mean that I must assume a version of facts most favourable to Mr. Adam: R. v. Smickle, 2013 ONCA 678, 5 C.R. (7th) 359, at para. 18.

[37] Having considered the evidence carefully, I reject the defence position that Mr. Adam returned to the plaza because he was hungry. It does not accord with the other evidence which I accept. I am satisfied Mr. Adam returned to the plaza intending some form of confrontation with Mr. McKnollys. It was a planned encounter. The risk of harm was significant. Mr. Adam was armed and had his hand on his gun as he approached the back parking lot of the plaza – the same area where Mr. McKnollys was headed when Mr. Adam drove off in the Mazda.

[38] The circumstances surrounding Mr. Adam’s return overwhelmingly support this conclusion. When dropped off in front of his apartment building, Mr. Adam entered with haste. He left his mother’s apartment a mere four minutes later. He did not go directly to Istar. Instead he choose to walk along the isolated back laneway — a route that led directly to the back parking lot where Mr. McKnollys was headed when last seen. As he walked along the back laneway, Mr. Adam looked over his shoulder. He then put his hand inside his satchel. At trial, Mr. Adam explained that the zipper on the satchel was broken and that is why he was holding his satchel. The satchel in fact had a broken zipper. That, however, does not explain why his hand was inside the satchel.

[39] In rejecting the defence of self-defence, the jury not only disbelieved Mr. Adam, but were satisfied beyond a reasonable doubt that his account was untrue. Having carefully assessed the evidence, I agree with that conclusion. I am satisfied that the verdict of manslaughter is explained by the expert evidence which showed that the fatal bullet struck some hard object (likely the pavement) and ricocheted before entering Mr. McKnollys’ chest. That said, while I also have some doubt regarding Mr. Adam’s testimony that he was in possession of his gun that entire evening, the evidence does not prove beyond a reasonable doubt that Mr. Adam went to his apartment to get his gun. I cannot exclude other reasonable explanations (e.g., that he did not want to involve his friends in his subsequent confrontation): R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30.

Conclusion

[40] I am satisfied beyond a reasonable doubt that Mr. Adam returned to the plaza intent on confronting Mr. McKnollys and not because he was hungry. I am not satisfied beyond a reasonable doubt that following the verbal exchange, Mr. Adam returned to his mother’s apartment for the purpose of arming himself with a gun.

[41] Before engaging with the principles of sentencing, I wish to address the victim impact statements.

Victim Impact Statements

[42] At the time of his death, Mr. McKnollys was 22 years old. He was a son, a brother, and a father. He has left a six-year-old daughter. She will grow up fatherless. Those he left behind wrote of the emptiness in their lives.

[43] Crown counsel read in victim impact statements written by Diana Sherzad, the mother of the deceased’s daughter, and Cynthia McPherson, Mr. McKnollys’ mother. Both spoke of the impact of Mr. McKnollys’ death and the fear that their sorrow will never end. Mr. McKnollys’ death occurred on Eid. What was formerly a festive holiday is now a time of sorrow. The victim’s mother described in vivid detail how the “torment” she suffers is “night and day”. She is consumed by grief and a fear that she will lose her other children. Mr. McKnollys’ young daughter drew a picture showing her walking alongside her father and the family dog. She wrote, “come home Daddy I miss you”. It shows that she has yet to process the enormity of her loss.

Sentencing Principles

General Principles

[44] The “fundamental purpose” of sentencing is to “protect society and to contribute […] 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” as set out in s. 718 of the Criminal Code:

(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 the rehabilitation of 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.

[45] In crafting an appropriate sentence, regard must also be given to the fundamental principle of sentencing: proportionality. Section 718.1 directs that any sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Imposing a proportionate sentence is a highly individualized exercise; one that is tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at pp. 557-59.

[46] Section s. 718.2 of the Criminal Code directs sentencing courts to consider a number of other statutory principles, including the following: a sentence should be increased or reduced to account for any mitigating or aggravating circumstances relating to the offence or the offender (s. 718.2(a)); a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (also known as the principle of parity set out in s. 718.2(b)); and, courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). In other words, all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[47] Although all sentencing objectives are relevant, depending on the facts of the case, the court is entitled to give different weight to the various objectives. In manslaughter cases, particularly those involving a firearm, deterrence and denunciation are generally paramount.

[48] Mr. Adam is a Black man. Accordingly, in sentencing Mr. Adam I must also consider the social context evidence of systemic anti-Black racism and its impact on Mr. Adam’s life experiences: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641. In Morris, the court held that such evidence may be used, where relevant, to mitigate an offender’s degree of responsibility. Such evidence may also be used to assist in balancing the principles and objectives of sentencing when determining a sentence that best serves the purposes of sentencing as set out in s. 718 of the Criminal Code: Morris, at paras. 13, 75-81, 87-107. Such evidence, will not, however, mitigate the seriousness of the offence. The circumstances in Morris are similar to the instant case in that there was evidence that Mr. Morris carried a handgun to feel safe in his community. This conduct was linked to systemic anti-Black racism. In Morris, this evidence was treated as a “limited mitigating factor” as Mr. Morris “still chose to arm himself in public with a concealed, loaded, deadly weapon”: Morris, at para. 101.

The Applicable Range

[49] Under s. 236 of the Criminal Code, where a firearm is used in the commission of manslaughter, there is a mandatory minimum sentence of four years’ imprisonment. The maximum sentence available is life imprisonment.

[50] The very broad range of sentences imposed in manslaughter cases is reflective of the wide range of circumstances that may result in a conviction for manslaughter. Both the circumstances of the offence and the offender’s moral culpability can vary greatly. At the low end of the spectrum are unintentional killings akin to accidents. At the upper end, are deaths that stem from acts approaching murder: R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10; R. v. MacKinnon, 2022 ONSC 1349, at para. 73.

[51] Sentencing in manslaughter cases is case specific. However, the Court of Appeal for Ontario has held that in cases where the conduct of the offender was accompanied by aggravating features, such as the use of a firearm, the applicable range of sentence is 8 to 12 years’ imprisonment: see R. v. Clarke (2003), 172 O.A.C. 133 (C.A.), at para. 8; R. v. Devaney (2006), 213 C.C.C. (3d) 264 (Ont. C.A.), at para. 33; R. v. Tahir, 2016 ONCA 136, at para. 2. Sentences at the lower range of 6 to 8 years’ imprisonment are appropriate in the less serious cases where, for example, the accused is a youthful first offender with significant rehabilitative potential: R. v. Smith, 2022 ONSC 3800, at paras. 26-27; R. v. Kwakye, 2015 ONCA 108.

[52] As required by s. 718.2(b) of the Criminal Code, I have considered the principle of parity. This requires that similar sentences should be imposed for similar offences committed by offenders in comparable circumstances. I have considered all of the cases cited by counsel.

[53] With regard to the cases filed by the Crown, while I have considered all of them, I have paid particular attention to three decisions. In R. v. Yaali, 2020 ONCA 150, the Court of Appeal for Ontario affirmed a sentence of 13 years’ imprisonment for a youthful offender who pleaded guilty to manslaughter. In Yaali, the offender went armed with a firearm to the home of his former girlfriend with the intent of confronting her new partner who was also armed with a firearm. During a physical struggle, Yaali fired his handgun several times. Two bullets struck and killed his former girlfriend. Yaali fled the scene and disposed of the firearm. He was under the influence of alcohol at the time. Yaali had a prior unrelated criminal record from the United States for importing cocaine.

[54] The decisions of R. v. Cheveldayoff, 2018 ONSC 6154 and R. v. Scalzo, 2020 ONSC 6063 were also particularly useful. Both involved convictions for manslaughter based on shooting deaths that occurred following a verbal confrontation. Both involved offenders who had a prior criminal record for offences of violence. In Cheveldayoff, the offender was sentenced to 16 years’ imprisonment while in Scalzo, the offender was sentenced to 13 years’ imprisonment.

[55] In support of the defence position that an appropriate sentence is one of 5 years’ imprisonment, less credit for pre-sentence custody, counsel for Mr. Adam relied upon the following cases: R. v. Araya, 2015 ONCA 854; R. v. Brooks; R. v. Garthwaite, 2018 ONSC 6776; R. v. Simcoe (2002), 156 O.A.C. 190 (C.A.); R. v. Creighton (1991), 66 C.C.C. (3d) 317 (Ont. C.A.); R. v. Turcotte (2000), 48 O.R. (3d) 97 (C.A.); R. v. Young, 2022 ONSC 1143; R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641; R. v. Stewart, 2022 ONSC 6997; R. v. Edwards, 2023 ONCJ 53; R. v. Pimentel, 2022 ONSC 3023; and R. v. Ahmed, 2021 ONSC 8157. Of these, the decisions with facts similar to the instant case are the following:

(i) R. v. Brooks: A sentence of 7 years’ imprisonment less pre-sentence custody was imposed on a 53-year-old first offender who was charged with first degree murder but convicted of manslaughter following a jury trial. The accused shot and killed his wife during a struggle that ensued when she tried to disarm him. The accused suffered from depression and was suicidal in the weeks prior to the shooting.

(ii) R. v. Garthwaite: A sentence of 10 years’ imprisonment less pre-sentence custody was imposed on a 26-year-old who pleaded guilty to manslaughter while using a firearm. In that case, the accused shot and killed a woman by accident when he went armed with a shotgun to confront a drug dealer whom he believed had ripped him off. The drug dealer fled the scene and ran into an apartment. Mr. Garthwaite followed. As Mr. Garthwaite attempted to force his way into the apartment, he shot the victim as she tried to close the door to prevent his entry. The single shot was fatal.

(iii) R. v. Young: A sentence of 5 years’ imprisonment was imposed on a 25-year-old first offender who pleaded guilty to manslaughter while using a firearm. In that case, the accused was a drug dealer who fired his gun once at the victim who brandished an imitation firearm in an attempt to rob Mr. Young. Although Mr. Young aimed low and shot the victim in the left buttock, the bullet struck an artery resulting in death. The court accepted the accused’s expression of remorse and found he had good rehabilitative prospects. The court observed that absent the harsh conditions of his pre-sentence custody, a sentence of 5 years and 7 months would have been appropriate.

(iv) R. v. Pimentel: A sentence of 5 years’ imprisonment less pre-sentence custody was found to be appropriate for a 53-year-old who pleaded guilty to a charge of manslaughter in relation to the killing of his friend whom he struck in the head with a baseball bat during an altercation. He had a dated criminal record. Over half of his pre-sentence custody was served during lockdowns due to staff shortages. He was subject to deportation as a result of the conviction and sentence.

[56] In my view, the cases relied on by the defence are dissimilar as they have mitigating factors that do not exist in the present case.

[57] All of the cases cited by counsel illustrate that the range may be as low as 5 years’ imprisonment or as high as 15 years’ imprisonment. This vast range reflects the fact that determining an appropriate sentence is a highly individualized process, which must take into account the purposes and principles of sentencing, as well as the aggravating and mitigating factors in each case. Accordingly, I will next consider the aggravating and mitigating factors in this case.

Aggravating and Mitigating Factors

[58] Section 718.2(a) of the Criminal Code requires the court to consider any aggravating and mitigating factors, relevant to the offence or the offender.

[59] The following are the aggravating features in this case: Mr. Adam carried a concealed loaded firearm to a plaza he knew had a busy restaurant and nearby residences; the encounter was planned; Mr. Adam fired his gun four times; his gun had an obliterated serial number; and Mr. McKnollys’ death has had a devastating impact on his family. In referring to the number of shots fired and the surrounding circumstances, I recognize that the fact that Mr. McKnollys’ death resulted from the discharge of Mr. Adam’s gun is not itself an aggravating factor: Araya, 2013 ONCA 734, 344 O.A.C. 36, rev’d 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 55; R. v. Araya, 2015 ONCA 854, at para. 26.

[60] The following are the mitigating factors in this case:

(i) Education and employment: Mr. Adam has graduated from high school and college. Since high school, he has been gainfully employed. He left Ontario to pursue better employment opportunities in Alberta to provide for his family.

(ii) Rehabilitative prospects: Mr. Adam has good rehabilitative prospects. His one prior conviction is dated and relates to a minor offence. While incarcerated, he has participated in several programs and received eight certificates. He has the strong support of his family. He has expressed remorse for having caused the death of a young man. I accept his expression of remorse as genuine. He has the potential to be a productive member of society.

(iii) Harsh conditions of detention: I accept that the numerous and sometimes continuous lockdowns throughout Mr. Adam’s pre-sentence incarceration have been harsh. They have had a detrimental impact on his mental health. Rather than assign a specific mathematical deduction, I have adopted the approach set out in Marshall. This is a mitigating factor: R. v. Duncan, 2016 ONCA 754, at para. 6; R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147, at paras. 59-62.

(iv) Impact of systemic anti-Black racism: Mr. Adam continues to suffer from the impact of the 2011 incident involving the attempted murder of his girlfriend. He had a difficult childhood and grew up without a father figure. He felt the need to carry a gun to feel safe in his community. Interestingly, there are similarities between the 2011 incident, and that involving Mr. McKnollys; both involved random encounters on the streets of Toronto that started with an exchange of words but ended with gun violence. This provides important social context evidence that is relevant on sentencing as it offers a more informed assessment of Mr. Adam’s background: Morris, at para. 106. It helps explain how Mr. Adam has ended up where he is today.

[61] Mr. Adam should be given credit for the time he has spent in pre-sentence custody pursuant to s. 719(3.1) of the Criminal Code and Summers. Mr. Adam has been in custody since his arrest on July 22, 2021. As of the sentencing date, he will have been incarcerated for 1,010 days. The Crown agrees that this period should be credited at the standard rate of 1.5:1. This amounts to a deduction of 1,515 days. Quite properly, no request was made to consider the 9 months of pre-trial custody that Mr. Adam served in 2011 on charges that were ultimately withdrawn. This time was not “as a result of the offence” as required under s. 719(3) of the Criminal Code: R. v. Wilson, 2008 ONCA 510, at paras. 44-45.

The Appropriate Sentence for Mr. Adam

[62] I turn now to the appropriate sentence for Mr. Adam, taking into consideration the applicable governing principles, the aggravating and mitigating factors, and the circumstances and background of Mr. Adam.

[63] Determining a fit sentence requires the sentencing judge to balance many factors, including denunciation, deterrence, and rehabilitation.

[64] I accept that Mr. Adam has good rehabilitative prospects. He has the strong support of his family. He has insight and has expressed remorse. While Mr. Adam has a prior record, it is very minor and dated. He has no substance abuse issues. Although rehabilitation is important, in manslaughter cases, it is secondary to deterrence and denunciation: Kwakye, at para. 3.

[65] The principle of restraint is found in s. 718.2(d) of the Criminal Code. It requires that a sentencing judge consider all sanctions apart from incarceration. It also requires that when incarceration is found to be necessary, a court must impose the shortest sentence of imprisonment that will achieve the various sentencing objectives applicable in the circumstances of each case. In other words, the restraint principle operates both when deciding whether incarceration is appropriate and, if so, determining its length: Morris, at para. 112. The principle of restraint is evident in the decision of R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), wherein at para. 3, Rosenberg J.A. stated that a “first penitentiary sentence should be as short as possible”. The principle of restraint must be balanced with the primary need for general deterrence, and denunciation. The principle of restraint must also operate within the boundaries set by the fundamental principle of proportionality: Morris, at para. 112.

[66] The offence of manslaughter can be made out in a wide ranging set of factual circumstances that vary from serious negligence to near murder. In this case, Mr. Adam’s moral culpability is at the higher end. Although Mr. McKnollys initiated the verbal exchange, Mr. Adam was 10 years his senior. Mr. Adam was in the comfort of his mother’s home when he chose to return. That he did so, while armed with a loaded handgun ready to fire with a bullet in its chamber, is disturbing. As to why he returned, I am satisfied, beyond a reasonable doubt, that it was because he planned to confront Mr. McKnollys, not because he was hungry.

[67] Mr. Adam fired four shots in an area he knew was populated with nearby residences and restaurant patrons. As for his firearm, I accept that it was purchased, not as a tool of trade, but for protection. Mr. Adam is not someone who is engaged in a criminal lifestyle. His efforts to live a life as a contributing member of society are commendable. That said, it is disturbing that Mr. Adam admitted to regularly carrying a loaded handgun in his waistband as a matter of course while out in public on the streets of Toronto. His conduct speaks to the proliferation of illegal handguns in the City of Toronto. For more than 20 years, courts have spoken repeatedly of the impact of firearm offences on our sense of public safety: R. v. Danvers (2005), 201 O.A.C. 138 (C.A.), at para. 77.

[68] The proliferation of guns and the associated violence is even greater today. As observed by the Court of Appeal for Ontario in Morris, “[g]un crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder”: at para. 68. Such conduct “undermines the community’s sense of safety and security … [and] is antithetical to the Canadian concept of a free and ordered society”: Morris, at para. 68.

[69] While I accept that Mr. Adam’s choices may have been influenced by personal hardships, this does not detract from the gravity of the offence. His conduct requires a sentence that will communicate the court’s strong denunciation of his actions which resulted in the death of a young man in senseless circumstances. Deterrence and denunciation are key principles to discourage others from making similar choices which endanger the security of the public generally.

Disposition

[70] Mr. Adam will be sentenced to 9 years’ imprisonment. Mr. Adam has spent 1,010 actual days in pre-sentence custody. With credit at 1.5:1, he has served the equivalent of 50.5 months. This leaves a remainder of 57.5 months to be served or 4 ¾ years.

[71] In addition, Mr. Adam will be subject to a mandatory weapons prohibition order pursuant to s. 109(2) of the Criminal Code for 10 years.

[72] Manslaughter is a “primary designated offence” within the meaning of s. 487.04(a) of the Criminal Code. Consequently, s. 487.051(2) of the Criminal Code makes a DNA order mandatory. Accordingly, Mr. Adam is ordered to provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis and storage in the national DNA database.

[73] The police have in their possession the firearm and ammunition seized pursuant to a lawful search warrant from Mr. Adam’s bedroom.

[74] Finally, pursuant to s. 743.21 of the Criminal Code, Mr. Adam is ordered prohibited from communicating (directly or indirectly) with the following people while in custody:

(a) any member of Mr. Jovahn McKnollys’ immediate family;

(b) Mr. Kwabena Duodu;

(c) Mr. Mubashir Aden; and

(d) Mr. Daniel Yeboah-Offe.

J. M. Barrett J.

Released: April 26, 2024

Notes:

[1] Following the release of this decision, personal information was redacted from paragraph 5 on the consent of counsel.

[2] The recordings have no audio.

[3] Personal information concerning the residence of Mr. Adam’s mother was redacted on consent.