Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 09 16 COURT FILE No.: 22-99840000038 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Estime NDAYIHEZAGIYE

Before: Justice Cidalia Faria

Heard on: July 5, 2024 Oral Reasons on: September 9, 2024 Written Reasons for Sentence released on: September 16, 2024

Counsel: Daniel DeSantis, counsel for the Crown Allan Lobel, counsel for the accused Estime NDAYIHEZAGIYE

Faria J.:

I. Introduction

[1] On November 14, 2020, Estime Ndayihezagiye was in possession of a loaded, restricted semi-automatic firearm with readily accessible ammunition, without a licence to do so, without a registration certificate for it, and storing both the firearm and the ammunition carelessly, contrary to ss. 95, 92(2), 91(1), and 86(1) of the Criminal Code.

[2] This case has taken some time. On January 26, 2022, I allowed the cross-examination of the affiant of the warrant permitting a search of Mr. Ndayihezagiye’s bedroom. On September 8, 2022, I dismissed Mr. Ndayihezagiye‘s s. 8 Charter application. On January 25, 2023, I found Mr. Ndayihezagiye guilty of the charges. [1] The parties then had to wait until July 2024 for the social context report, known as an Enhanced Pre-Sentence Report (EPSR), also called an Impact of Race and Culture Assessment (IRCA) or a Morris [2] Report, that had been requested on February 14, 2023, to assist with sentencing. On July 5, 2024, I heard submissions and reserved my decision until September 9, 2024.

II. Facts

[3] On November 14, 2020, officers from the Emergency Task Force (ETF) of the Toronto Police Service (TPS) executed a search warrant of 18-year-old Estime Ndayihezagiye’s room in the apartment where he lived with his three younger siblings and his parents.

[4] In his bedroom, which he shared with his 12-year-old brother at the time, police located a handgun and ammunition inside a Gucci satchel hanging on the back of his door.

[5] The handgun was a restricted firearm, specifically, a SIG Sauer P320 semi-automatic with 3 rounds of ammunition. Also located inside the Gucci satchel was a laser sight attachment.

III. Positions of the Parties

[6] The Crown submits the appropriate sentence is 2.5 years in jail minus enhanced pre-sentence custody credit of 1.5 pursuant to Summers [3], a 2-year probation order, and several ancillary orders. He submits his recommendation accounts for the mitigating circumstances of harsh incarceration conditions, and the lengthy period for which Mr. Ndayihezagiye has been on strict release conditions.

[7] The Defence submits Mr. Ndayihezagiye’s 7 months of pre-sentence custody, when enhanced to 10.5 months pursuant to Summers, in the context of the detrimental effects of incarceration he experienced and given he has been on a strict release for 37 months, Mr. Ndayihezagiye is in a time served position.

[8] In the alternative, the Defence submits this is an appropriate case for a Conditional Sentence. Counsel takes no issue with the ancillary orders and made no submissions on the recommended terms made by the Crown on probation.

IV. Legal Principles

[9] The Criminal Code provides very specific guidance to sentencing judges.

[10] Every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[11] The sanction I impose should have one or more of the following objectives:

• to denounce unlawful conduct
• to deter the offender and other persons from committing offences
• to separate offenders from society, where necessary
• to assist in rehabilitating offenders
• to provide reparations for harm done to victims or to the community
• to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[12] I must also consider aggravating and mitigating factors.

[13] Similar offences committed by similar offenders in similar circumstances attract similar sentences.

[14] Applicable in this case, is the determination of the effect of what is called Duncan [4] and Downes [5] credit.

[15] The Court of Appeal stated in Duncan that a sentencing judge, in the appropriate circumstances, can consider exceptionally harsh presentence incarceration conditions that go well beyond the normal restrictions associated with pretrial custody and their impact on an accused, as a mitigating factor, apart from the 1.5 credit referred to in s. 719(3.1) of the Criminal Code.

[16] In Downes, the Court stated that time spent under stringent bail conditions, especially under house arrest are to be considered as a mitigating factor. The amount of credit, if any, will depend on factors such as the length of time spent on house arrest, the stringency of bail conditions, the impact on an offender’s liberty, and the ability of an offender to carry on normal relationships, employment, and activity.

V. Circumstances of Mr. Ndayihezagiye

[17] The EPSR [6] was authored by qualified professionals experienced in social context and the Report provided extensive information about Mr. Ndayihezagiye.

[18] Mr. Ndayihezagiye’s parents are from Burundi, a small East African country. They met in high school, and they both left to settle in Zambia because of the political conflict in their home country. They married and had Mr. Ndayihezagiye and two of his siblings. Although they were refugees, they had a stable life operating a business that provided for the family’s needs and were considered lower middle-class.

[19] In 2010, Mr. Ndayihezagiye’s paternal uncle sponsored the family to come to Canada so Mr. Ndayihezagiye’s father could get health care for his deteriorating eyesight, and his brother, with autism, could get support. Mr. Ndayihezagiye was 9 years old at the time. The family moved into a 3-bedroom apartment in the north end of the city. Though his mother worked in a daycare, her credentials were insufficient to continue in that line of work. Though his father tried to work, accommodation for his visual impairment was challenging. The family became financially supported by Disability Support and child tax benefits.

[20] Mr. Ndayihezagiye’s parents described their migration as “not very difficult”. They had familial support and described their neighbourhood as middle-class with a mix of racial and ethnic backgrounds.

[21] Mr. Ndayihezagiye found the migration to be a struggle. He found it difficult to navigate the city. His family was “low income”. He reported there were conflicts in the neighbourhood that led to shootings and stabbings which his parents were unaware of.

[22] He was behind in school, and was bullied about that, as well as for his accent, and his lack of familiarity with cultural references. He discovered he had a learning disability and received an Independent Education Plan which led to some progress. He was suspended for fighting in middle school and felt he was specifically targeted for discipline because he is Black. His principal used the threat of involving the police frequently to control behaviour.

[23] Mr. Ndayihezagiye’s transition to high school did not go academically well and he described it as overwhelming. His learning disability did not receive any attention and he continued to fall behind. He made a good effort though. He attended and completed a co-op program in the trades and a construction management program. He changed schools for grades 11 and 12 and was able to graduate in 2020, just before these offences.

[24] During his adolescence, Mr. Ndayihezagiye reported being targeted by police. He disclosed “being approached, watched and targeted by the police” when he walked around his neighbourhood with his peers and believed he was treated this way because of his Black identity. He believes he fits a “stereotype” as a “young Black man, athletic build, braids, with a certain style of dress” that police believe engage in criminal behaviour. He said he saw police “pick on” Black youth and noticed a difference between how police dealt with his White peers and his racialized peers. He felt “eerie” and “on guard” which was “exhausting”.

[25] Mr. Ndayihezagiye described this having influenced him to become involved in the offences he committed. He felt loyal to his friends which his mother recognized to be true when she told the Report author Mr. Ndayihezagiye trusted his friends more than his parents. His aunt believes that Mr. Ndayihezagiye was “easily manipulated” by these friends who “made him feel needed and important.”

[26] From a different point of view, Mr. Ndayihezagiye’s youth pastor described him as someone other youth looked up to.

[27] While on bail, Mr. Ndayihezagiye worked with Springboard Services with the John Howard Society and obtained certifications in forklift operation, first aid, and working on heights. He secured a job with a landscaping company in March 2024 and currently works there. He aspires to be a trim carpenter, get an apprenticeship, and join a union in the future.

[28] The EPSR details the impact of Mr. Ndayihezagiye’s incarceration before he was released on bail. At first, he was “lost” and “depressed” as he had to endure lockdowns because of the COVID-19 pandemic. This caused stress and limited access to the telephone and showers. He paced his cell and talked to his cellmate to deal with these feelings. Two months later, when his cellmate was released, Mr. Ndayihezagiye took a turn for the worse. He had difficulty sleeping, smeared his food on the walls, began to hear voices, and then respond to the voices.

[29] Correctional officers noted extreme behaviours. Dr. Patel of the Center for Addiction and Mental Health (CAMH) attempted to assess him on January 23, 2021, and described him as “behaviourally disturbed, shouting for no reason, naked or only in his boxers, and talking nonsensically to himself” which he believed “was evidence of paranoid psychosis and ongoing psychosis.” Mr. Ndayihezagiye was admitted to the Psychiatric Intensive Care Unit at St. Joseph’s Hospital on January 29, 2021, for further evaluation. Dr. Marika Younker was not “convinced” Mr. Ndayihezagiye was experiencing psychosis. Mr. Ndayihezagiye received no treatment and was discharged back to the Toronto South Detention Center (TSDC) on February 4, 2021.

[30] Two days later, again Dr. Patel made similar observations to his earlier ones. This time Mr. Ndayihezagiye was sent to Humber River Hospital. He was medicated, bedridden, and cuffed to a bed. His psychiatrist determined he was experiencing psychosis and Mr. Ndayihezagiye remained in hospital for two months. [7] He was eventually discharged on April 12, 2021, and returned to the TSDC where he was placed in a specialized unit with fewer inmates until his release on June 17, 2021.

[31] After his release Mr. Ndayihezagiye’s psychotic symptoms subsided, and his medication was reduced. He has been working with the Early Psychosis Intervention Program offered by CAMH since the beginning of 2023. He meets with a social worker every week, and he is eligible to continue with this social worker and this program for another 2 years. He no longer hears voices, is no longer on medication, and is committed to his mental health recovery. He is still experiencing some sadness which may require a mental health assessment.

[32] Mr. Ndayihezagiye expressed feelings guilt and shame to the authors of the Report. He expressed insight that his offending has had serious consequences on himself, his future, his family, and his community. He was open and honest. He was reflective. He is fearful of further incarceration. He expressed remorse. He understood his poor choices, and was accountable for them, accepting that he exposed himself, his family, and his community to a high level of risk.

VI. Analysis

A. Aggravating Factors

[33] There are four main aggravating factors. The first is that this offence occurred in the context of gun violence in the city of Toronto. Mr. Ndayihezagiye’s possession of a firearm is part of a pervasive, insidious, and persistent gun culture that has resisted multi-pronged efforts to eradicate it.

[34] Secondly, not only was Mr. Ndayihezagiye in possession of a semi-automatic handgun with ammunition, but he also had a laser sight in the bag he kept it in. A laser sight is used to place a lighted dot on the target to be shot to increase accuracy. Handguns kill people. A laser sight increases the precision with which this goal can be achieved.

[35] Thirdly, he kept the handgun in a Gucci bag hanging on the back of his bedroom door. He shared this room with his 12-year-old brother at the time. His little brother’s age-appropriate curiosity could easily have led to tragic results.

[36] Finally, two more, even younger siblings shared his modest apartment. They too could have easily found the firearm and again, met with tragedy.

B. Mitigating Factors

[37] There are, however, many more mitigating factors to consider in Mr. Ndayihezagiye’s case.

[38] Mr. Ndayihezagiye was arrested one month after his 18th birthday. He is a very youthful offender and facing adult consequences for what only the month before, would have placed him in significantly different legal jeopardy as a young person.

[39] He has no criminal record.

[40] Mr. Ndayihezagiye has extensive family support – more than is usually seen in these courts – and certainly more than this court has seen in many years. Thirteen people showed up in person, for Mr. Ndayihezagiye. They were patient and attentive during the entirety of the proceedings.

• His parents attended court. Their participation in the EPSR provided background and context to Mr. Ndayihezagiye’s life, and though shocked by his behaviour, have supported him and are committed to continuing to do so.
• His younger brother and two younger sisters attended court.
• His paternal uncle who sponsored the family attended court and provided a letter describing the impact of incarceration on Mr. Ndayihezagiye and his mental deterioration. [8]
• His cousin and a family friend attended court. His childhood friend attended court.
• Four members of his Church attended court, including his Paster, the Youth Leader and two members of the Board.
• His aunt who provided relevant and insightful, input to the authors of the Report attended remotely and provided a detailed letter of support. [9] She has been committed to Mr. Ndayihezagiye and his family for 14 years, including assisting with his elementary schooling, his learning disability, his father’s navigation of the health care system, and then over the last 4 years of Mr. Ndayihezagiye’s simultaneous journey through both the legal system and the mental health system.

[41] Mr. Ndayihezagiye’s family, friends, and community came together to demonstrate their commitment to the integration of their loved one into the community. This bodes well for Mr. Ndayihezagiye’s rehabilitation prospects.

[42] Mr. Ndayihezagiye has already demonstrated a significant commitment to his rehabilitation via his work to deal with his mental health, the improvement of his skills and by obtaining employment.

[43] While on bail, he has trained to be forklift operator and become certified in both first aid and heights work.

[44] It is also impressive he translated these new skills into a job while on a strict bail. By working with the JHS Mr. Ndayihezagiye has shown he can access, use, and benefit from resources available to him.

[45] Though Mr. Ndayihezagiye’s offending was not related to any mental health condition at the time, the fact he developed such a condition almost immediately after his arrest and how he dealt with it is a relevant factor. He was able to work with a medical team, he was compliant with medication, he improved his physical lifestyle, and he has overcome a serious mental health crisis.

[46] Mr. Ndayihezagiye’s racialized experiences are also a mitigating factor. He experienced racism in school, such as perceiving himself to be more harshly disciplined because he is Black. Mr. Ndayihezagiye’s fear of police was purposely instilled in him by a principal who threatened to call police to manage childhood misbehaviour for racialized children. He felt targeted because of what he looked like and where he lived. This background set the stage for Mr. Ndayihezagiye’s negative experiences with, and perceptions of, police.

[47] Academically, Mr. Ndayihezagiye did not receive an individualized assessment for his learning disability and did not get the proper educational supports he needed. Research referred to in the EPSR speaks to the limited resources provided to, and lower expectations of, Black children.

[48] Mr. Ndayihezagiye was also a member of a low-income family living in a low-income neighbourhood where he observed gun violence including the death of a friend to such violence which traumatised him.

[49] In my view, Mr. Ndayihezagiye also experienced a social and cultural disconnect between his parent’s sense of stability and his own experience of vulnerability.

[50] Both his parents felt supported by his aunt and uncle’s assistance and found adjusting to life in Canada “not very difficult.” Meanwhile Mr. Ndayihezagiye found it to be “night and day”. His parents met his basic clothing, food, and shelter needs. Meanwhile he wanted expensive shoes and meals out they could not afford. His mother spent her time caring for his younger siblings in the home and did not take note of what occurred in the neighbourhood. Meanwhile he was reluctant to walk around in the evening because of conflicts. Everyone was in the same apartment, in the same building, at the same time, but living in two different worlds.

[51] It was not migration, or poverty, or educational challenges, or a neighbourhood with violence, or police involvement alone, that led Mr. Ndayihezagiye to choose to participate in gun culture as he did, by possessing a loaded semi-automatic firearm. It was the combination of these factors, as uniquely experienced by him, in the context of racism, in addition to his age and immaturity that led to his offending. In this way, his social context, that of anti-Black racism mitigates his moral culpability by attenuating his moral blameworthiness and affects the balancing of sentencing principles as they apply to him. [10]

C. Pre-Sentence Credit: Mitigating or Quantifiable

[52] Mr. Ndayihezagiye has served 215 days, or 7 months, which when enhanced by 1.5 amounts to 322.5 days or 10.5 months of pre-sentence custody. There is no dispute with this Summers calculation and that it must be deducted from the fit sentence to be determined.

[53] However, the parties disagree on the consideration and impact of Duncan and Downes credit in this case.

Duncan Credit

[54] The Crown recommends I consider Duncan credit as an unquantified mitigating factor, and already accounted for in his 2.5-year recommendation. He relies on Marshall at paragraphs 52 and 53 of the Court of Appeal which stated:

[52] The “Duncan” credit” is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit” is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[53] Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.).

[55] The Defence urges me to quantify the Duncan credit, referring to the “this quantification is not necessarily inappropriate” in paragraph 53, and as preferred by Justice Molloy in Shaikh [11] wherein she quantifies the Duncan credit, and deducts it from the fit sentence before deducting Summers credit.

[56] Justice Molloy did so by stating that while the Ontario Court of Appeal permitted a sentencing judge to lump the Duncan credit with other mitigating factors, without specifying the extent to which it did so, the Court also specifically ruled that it is also permissible to quantify the reduction for the Duncan credit.

[57] She considered it preferable, not merely acceptable to quantify the period of time by which a sentence is reduced to reflect the harsh and punitive conditions of pre-trial custody so as to be both transparent and consistent in sentencing while still considering it a mitigating factor. She identifies this process as one that communicates the deplorable conditions in prisons to the public, provides a better opportunity for appellate oversight and error correction, and enables individual sentencing judges to have a better sense of the extent to which other judges are taking Duncan credit into account and maintain consistency and parity. [12] She quoted Justices Schrek, Forestell, Himel, and Allen as having done the same in the cases of Ahmed [13], Bernard [14], Hassan [15], and Kongolo [16] respectively.

[58] Justice Molloy stated both the least and all she can do to address the deplorably harsh circumstances that incarcerated human beings are enduring in our community’s prisons is to quantify Duncan credit. [17]

[59] Without concluding that this approach is definitively the preferable one in every case, as Marshall expressively identifies that doing so may run the risk of creating an unfit sentence, in this case, I do not hesitate to agree that quantification of Duncan credit is warranted for the following reasons.

[60] Mr. Ndayihezagiye’s incarceration between November 14, 2020, and June 17, 2021, occurred during the heart of the ongoing COVID-19 pandemic. Lockdowns were more frequent, and restrictions more stringent than the normal course. Limitations were experienced by everyone, and for those in congregate settings, even more. This caused stress, loneliness, and depression. These harsh conditions are commonly considered a mitigating factor.

[61] What is not commonly heard, is the extreme impact these isolating restrictions ultimately had on Mr. Ndayihezagiye. After the first two months of incarceration, when Mr. Ndayihezagiye’s cell mate was released, his isolation became complete. He deteriorated into bizarre behaviour. He paced his cell, had difficulty sleeping, smeared food on the walls, began to hear voices and responded to the voices as if they were authentic. Dr. Patel noted he was usually naked, smeared feces in his cell, and was speaking nonsense. Mr. Ndayihezagiye’s presentation was evidence of “paranoid psychosis and on-going psychosis” and he was referred to hospital.

[62] Mr. Ndayihezagiye had never had any mental health issues prior to incarceration.

[63] He was sent to St. Joseph’s Hospital only to have another doctor, who was not “convinced” he was ill, discharge him without treatment.

[64] When he returned to the TSDC, Dr. Patel made the same observations. This time Dr. Patel sent him to Humber River Hospital where he was admitted and remained for 2 months to undergo treatment. Mr. Ndayihezagiye returned to a special unit at the TSDC on April 12, 2021.

[65] Not only is there evidence that the harsh isolated conditions of incarceration at the TSDC in some way triggered or contributed to the onset of Mr. Ndayihezagiye psychotic episode, but the institutional medical response was inadequate. It took Dr. Patel two referrals within a week for Mr. Ndayihezagiye to get proper medical treatment.

[66] Incarcerated individuals are completely dependant on the health care provided by an institution. When that health care fails, there is no second opinion available, there is no family member to advocate, there is literally no assistance to obtain. The only option is to hope for another opportunity for treatment to arise, which is what occurred to Mr. Ndayihezagiye and his second interaction with Dr. Patel.

[67] Both the severe isolated conditions that contributed to Mr. Ndayihezagiye’s mental breakdown, and the inadequate medical treatment he first received when his condition emerged led to a mental health crisis. These conditions and this impact warrant the quantification of the Duncan credit to denounce these unacceptable and deplorable circumstances to be 3 months.

Downes Credit

[68] “Stringent bail conditions, especially house arrest”, as a sentencing consideration was affirmed in Downes by the Ontario Court of Appeal in 2006. Mitigation is given because stringent bail conditions can be punitive and therefore “akin” to custody. [18]

[69] The law regarding this area was more recently summarized by the Court in Joseph [19] in 2020. Time spent on bail conditions, the stringency of these conditions, their impact on the offender’s liberty, and the ability of the offender to carry on normal relationships, employment, and activity are criteria to consider when weighing the mitigation Downes credit which falls within the discretion of the sentencing judge.

[70] In this case, Mr. Ndayihezagiye was on bail from June 17, 2021 to September 9, 2024, a period of 1180 days, or just under 39 months.

[71] I will divide this time into three periods:

i. June 17, 2021, to January 25, 2023: 19 months on house arrest until trial verdict. ii. January 25, 2023, to November 10, 2023: 10 months house arrest while waiting for EPSR. iii. November 10, 2023, to September 9, 2024: 10 months on GPS monitoring waiting for EPSR.

[72] Mr. Ndayihezagiye spent the first 19 months of his release to four sureties on house arrest conditions with very few exceptions. Although the conditions were severe, the outcomes for Mr. Ndayihezagiye were very positive. These conditions ensured he disassociated with his negative peer group and re-connected and strengthened his positive familial and community relationships including those within his Church. His mental health stabilized.

[73] During the second period, granted Mr. Ndayihezagiye was able to strengthen his relationships and establish a healthier mental health status, this period of 10 months should have been sufficient to receive the EPSR. It was not.

[74] Mr. Ndayihezagiye continued to be on bail and await his EPSR. The Crown loosened his conditions from house arrest to wearing a GPS ankle monitor. Again, Mr. Ndayihezagiye made good use of the time and got a job, but nonetheless, these were very stringent bail conditions for an additional 10 months.

[75] The Ontario Court of Appeal stated in Morris at paragraph 91:

There can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender’s community and the impact of that racism on the offender’s circumstances and life choices is part of the offender’s background and circumstances. The is evidence is not only admissible, it is, in many cases, essential to the obtaining of an accurate picture of the offender as a person and a part of society.

[76] The delay to receive the Report that would articulate the impact of racism on Mr. Ndayihezagiye’s life and his offending conduct to assist the court to sentence him, ironically, became a demonstration of his disadvantage.

[77] I recognize Mr. Ndayihezagiye “chose” to wait for the Report. Granted the court can take judicial notice of anti-Black racism, and counsel had endeavour to do their best to present the bearing of racism on their client, however, the understanding of racism in both theory and practise, and how it impacts an individual in both a systemic and personal way, is best articulated by expert professionals as exemplified in this case. The “choice” to wait, is to choose to get what the court needs to hear.

[78] This social context information, deemed “essential” by the Court of Appeal, took 17 months to produce. [20] This is unacceptable, and warrants considerable mitigation.

D. Range of Sentence

[79] Both parties filed several cases to support their positions. Though I will not refer to them all, they were all relevant and assisted with the difficult task before me.

[80] The gravity of firearms offences, and the devastation gun possession and gun violence is causing our communities in Toronto cannot be overstated. It has been called “a cancer in Toronto” and a “blight on the city” despite years of case law condemning the offence.

[81] The Court of Appeal has stated that “most s. 95 offences will attract a penitentiary term even for first offenders” [21]. Numerous cases have sent the message that “gun crime” will “inevitably bear severe consequences”. [22] “A grave problem caused by illegal guns and drugs in our society. Everyone in the criminal justice system appreciates fully that the public is understandably alarmed by the prevalence of gun violence that threatens public safety.” [23]

[82] Even in the context of youthful, first offenders, with positive family support, and good rehabilitation prospects, a guilty finding of a s. 95 offence attracts penitentiary sentences. For instance, Mr. Mahamet-Zene, 24 years old, with no criminal record, a good education, a good job, and family support was sentenced to 41 months for having a loaded handgun in his backpack. [24] Mr. Thavakularatnam, 20 years old with no criminal record, with family and community support was sentenced to 40 months after a guilty plea. [25]

[83] The Supreme Court of Canada specifically stated s.95(1) offences cast its net over a wide range of potential conduct and in most cases may well merit a sentence of three years or more even as it struck down a minimum sentence. [26]

[84] As a result, I do not find Mr. Ndayihezagiye’s 7 months of pre-sentence custody, on any accounting of that time, to be a fit sentence for the possession of a loaded firearm as Defence submits.

[85] However, although a 3-5-year penitentiary range is well established, this range is a helpful guideline not a “straitjacket” as stated by the Supreme Court in Lacasse [27]. Denunciation and deterrence are the clear and primary principles applicable s.95 offences, but they are not the only applicable principles.

[86] A custodial sentence may not be required to effect deterrence and denunciation. The Ontario Court of Appeal so stated in Morris when the Court recognized conditional sentences may well be appropriate, [28] and again in R. v. Desmond-Robinson [29] more recently.

[87] I agree with Justice Nakatsuru who stated:

“if there is good reason to depart from the range, then a trial judge in exercising their discretion can do so. When it is right, as the five-member panel of the Court of Appeal held in Morris, a fit sentence for the possession of a loaded prohibited firearm can be a reformatory sentence. [30]

[88] In this case, I find there are good reasons to consider a reformatory sentence, and they are:

• Mr. Ndayihezagiye is very youthful, he was barely 18 when he was arrested.
• He had no criminal record.
• The nature of the offences, though serious, were not tied to active violence, or drugs.
• He has significant and wide ranging familial and community support.
• He has a demonstrated rehabilitation track record, and excellent rehabilitation prospects.
• He was incarcerated under harsh conditions that triggered a mental health crisis that warrants quantifiable Duncan credit.
• He was on a strict house arrest or GPS monitoring conditions for almost 39 months that warrants significant Downes mitigating credit.

[89] I therefore find that a penitentiary sentence is not required in this case, and a sentence in the reformatory range is a fit one.

E. Conditional Sentence

[90] Having decided that a sentence in the reformatory range is a fit one, I turn to whether Mr. Ndayihezagiye should serve this sentence in the community.

[91] I must determine if a conditional sentence is available, and I must determine if it is appropriate.

[92] First, pursuant to s. 742.1 of the Criminal Code the court may impose a jail sentence of less than 2 years to be served in the community if the offence is not one on the excluded list of offences, does not carry a maximum 14 years or life sentence or have an attached minimum sentence.

[93] I find a suspended sentence and probation is clearly not appropriate and does not reflect the serious nature of the offences nor the denunciation and deterrence required in the sanction required. On the other hand, for the reasons already stated, a penitentiary sentence is not required either.

[94] These offences fit those criteria, and so a conditional sentence is available.

[95] Second, a conditional sentence must not endanger the safety of the community and it must be consistent with the fundamental purpose and principles of sentence as set out in ss.718 to 718.2.

[96] In regard to the fundamental purpose of the sentencing the Supreme Court in Proulx [31] stated:

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.

[97] Mr. Ndayihezagiye has no criminal record. He has been living in the community and complied with strict conditions for almost 39 months. His family support, his employment, his insight, and his mental health regime all point to minimal concerns of dangerousness, if any, and certainly none that conditional sentence terms could not manage.

[98] Other judges balancing similar considerations have also concluded that reformatory sentences served in the community can be appropriate in similar circumstances. [32]

[99] In addition to denunciation and deterrence, I must also consider Mr. Ndayihezagiye’s youthfulness, he had just turned 18, and his decisions were made in an environment impacted by anti-Black racism. As a young Black man, he is a member of an over incarcerated group. The material filed also reflects a serious concern that re-incarceration may trigger another severe mental relapse. The principle of restraint is has significant applicability.

[100] Having reviewed all the applicable principles, aggravating, and mitigating factors, and Mr. Ndayihezagiye’s unique experience and circumstances, I find that a conditional sentence does reflect the denunciation and deterrence required in this case. It also reflects the principles of rehabilitation, parity, and restraint.

VII. Sentence

[101] Mr. Ndayihezagiye, I find the appropriate sentence to be 2 years less a day minus 3 months Duncan credit, and minus your pre-sentence custody of 7 months enhanced to 10.5 months. You will serve the remaining 10.5 months as a conditional sentence.

[102] Your conditional sentence terms will be:

• Report to your Conditional Sentence Order (CSO) Supervisor today and thereafter as directed.
• During the entire term of the CSO, you shall not be outside your residence except for:
  • Medical emergencies involving yourself, your parents, or your siblings.
  • Medical, legal, dental appointments.
  • Employment.
  • Education or training commitments.
  • Counselling, in particular, your continued mental health appointments with your health care providers.
  • Worship.
  • Community Service.
  • While in the direct company of either of your parents, or your aunt or uncle.
  • shopping for necessities for one four-hour period per week, or two two-hour periods, as your CSO Supervisor shall direct; and
  • any other reason deemed appropriate by your CSO Supervisor.
• All the above exceptions include travel immediately to, during and from.
• All exceptions must be identified in a written letter of permission approved by your CSO Supervisor, except in the case of emergencies.
• You will sign releases to ensure your CSO Supervisor is able to monitor your attendance, and completion of all mental health appointments, counselling, employment, and educational/training appointments.
• You will perform 100 hours of community service at the rate and schedule approved by your CSO Supervisor.
• You will have no contact with Nicholas Jumon.
• You will not be in possession of any weapons as defined by the Criminal Code.

[103] You will be on probation for 2 years, during which time you will:

• Report within 24 hours of the end of your conditional sentence order.
• Reside where your probation officer approves.
• Take counselling as directed by your probation officer, and sign releases to enable your probation officer to monitor your attendance and completion of your counselling.
• You will perform and 100 hours of community service during your probation to the satisfaction of your probation officer.
• You will have no contact with Nicolas Jumon.
• You will not be in possession of any weapons as defined by the Criminal Code.

[104] I will also make the following ancillary orders:

• A DNA Order pursuant to s. 487.04.
• A s. 109 weapons prohibition for life.
• A s. 491(1) forfeiture order for all items seized pursuant to search warrants executed in this case.

[105] As s. 92(1) is founded on the same factual underpinning as that of s.95(1), the s. 92(1) count is stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.

[106] Thank you to both parties for your fulsome submissions.

Released: September 16, 2024 Signed: Justice Cidalia C.G. Faria

[1] R. v. Ndayihezagiye, 2023 ONCJ 85. [2] R. v. Morris, 2021 ONCA 680. [3] R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575. [4] R. v. Duncan, 2016 ONCA 754. [5] R. v. Downes [6] Exhibit 1: Enhanced Pre-Sentence Report for Estime Ndayihezagiye, May 21, 2024. [7] Exhibit 5: Humber River Regional Hospital, Dr. Emily Donaldson, March 19, 2021. [8] Exhibit 4: Letter, Reywen Bigirimana, July 4, 2024. [9] Exhibit 3: Letter, Assia Bigirimana, July 4, 2024. [10] R. v. Morris, 2021 ONCA 680 at para. 75-81, 87-101, 102-107. [11] R. v. Shaikh, 2024 ONSC 774 [12] R. v. Shaikh, at para. 22-25. [13] R. v. Ahmed, 2021 ONSC 8157 at para. 42. [14] R. v. Bernard, 2021 ONSC 5817 at para. 32. [15] R. v. Hassan, 2023, ONSC 5040 at paras. 45-46 [16] R. v. Kongolo, 2022 ONSC 3891 at para. 82-84. [17] R. v. Shaikh, at para. 30-31. [18] R. v. Downes, (2006) 3957 (On CA) at para. 33, 29. [19] R. v. Joseph, 2020 ONCA 733 at para. 108. [20] Although Counsel provided submissions over time regarding the underfunding of the Sentencing and Parole Project (SPP) that produces these essential reports, and the delay appeared to be the result of such underfunding, no evidence was heard on the point. [21] R. v. Smickle, 2014 ONCA 49 at para. 24. [22] R. v. Thavakularatnam, 2018 ONSC 2380 at para. 21. [23] R. v. Omar, 2018 ONCA 975 at para. 54. [24] R. v. Mahamet-Zene, 2018 ONSC 1050. [25] R. v. Thavakularatnam, 2018 ONSC 2380. [26] R. v. Nur, 2015 SCC 15 [27] R. v. Lacasse, 2015 SCC 64 at paras. 57-58. [28] Morris at paras. 124-128, 180-181. [29] R. v. Desmond-Robinson, 2022 ONCA 369 [30] R. v. Stewart, 2024 ONSC 281 at para. 43. [31] R. v. Proulx, 2000 SCC 61 at para. 22. [32] R. v. McLarity-Mathieu, November 25, 2022, OCJ, R. v. Hassan, 2017 ONSC 4570, R. v. Wilson, March 3, 17, Himel J., R. v. Stephenson, 2021 ONSC 1135