His Majesty the King v. Anthony Johnson and Alyshia Smith, 2022 ONSC 5689

FILE NO.: CR-21-50000293-0000

DATE: 20221013

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and -

Anthony johnson and alyshia smith

Aaron Del Rizzo and Anjali Rajan, for the Crown

John Fitzmaurice and Neill Fitzmaurice, Counsel for Anthony Johnson

Christopher K. Assie, Counsel for Alyshia Smith

HEARD: September 12 and 13, 2022

KELLY J.

Reasons for sentence

1Mr. Anthony Johnson and Ms. Alyshia Smith were convicted of offences arising from the shooting death of Mr. Deandre Campbell-Kelly following a jury trial. Mr. Johnson was charged with second degree murder but was convicted of the included offence of manslaughter. Ms. Smith was convicted of accessory after the fact to manslaughter. They now appear before me for sentencing.

2Crown counsel seeks a sentence of 12 years’ imprisonment for Mr. Johnson and 3.5 years’ imprisonment for Ms. Smith. Counsel for Mr. Johnson submits that the appropriate sentence for him is 6 years. Counsel for Ms. Smith submits that the appropriate sentence for her is 16-18 months (time served).

3For the reasons set out below, I find that the appropriate sentence for Mr. Johnson is 9 years less credit of 4 years, 1 month for a further sentence of 4 years, 11 months to serve. I find the appropriate sentence for Ms. Smith is 2 years, less credit of 19.5 months for a further sentence of 4.5 months to serve.

4What follows are my reasons.

The Factual Overview

a. The Legal Framework Re: Findings of Fact

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The Factual Overview

The jury, by its verdict, was obviously not satisfied beyond a reasonable doubt that when Mr. Johnson killed Mr. Campbell-Kelly, he had the intention required for proof of murder contrary to s. 229(1) of the Criminal Code, R.S.C., 1985, c. C-46. As such, he was convicted of manslaughter.

6The difficulty, following a jury trial, is that the appropriateness of a sentence requires the application of the principles of sentencing to the facts that give rise to the conviction. Unlike a judge sitting alone, the jury is not required to give reasons for its conviction. As such, the sentencing judge must determine the facts necessary for sentencing arising from the issues before the jury and from its verdict.¹

7The principles that a trial judge is required to consider following a jury’s verdict and when sentencing include the following:

a. The trial judge must determine the underlying findings of guilt. In making those findings, the trial judge is bound by the express and implied factual implications of the jury’s verdict.²

b. The trial judge must not accept as fact any evidence consistent only with a verdict rejected by the jury.³

c. The task of a trial judge is not to follow the logical process of the jury, but to come to their own determination of the relevant facts. In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven".⁴

d. The sentencing judge should find only those facts necessary to permit the proper sentence to be imposed.⁵

e. Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence.⁶

f. Any aggravating facts must be proven by the Crown beyond a reasonable doubt.⁷

8Bearing these principles in mind, I will now turn to the facts that form the basis of my decisions on sentence.

b. The Issue

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The Issue

Mr. Campbell-Kelly was shot on the street by Mr. Johnson during a chance encounter. Mr. Johnson was armed with a loaded firearm at the time. There is some dispute between counsel as to the factual basis for sentencing Mr. Johnson.

10By virtue of their verdict, the jury found that Mr. Johnson was not acting in self-defence and they had a reasonable doubt that either he was provoked or had the requisite intent to kill. Crown counsel submits that this court should find that Mr. Johnson did not have the requisite intent to kill and reject the defence of provocation.

11Defence counsel submits that the manslaughter conviction results from the following: while Mr. Johnson did not intend to kill Mr. Campbell-Kelly and acted to defend himself from Mr. Campbell-Kelly’s threat or use of force, the decision to use the firearm was unreasonable in the circumstances.

12For the reasons set out below, I find that consistent with the jury’s verdict, Mr. Johnson did not intend to kill Mr. Campbell-Kelly and acted to defend himself from Mr. Campbell-Kelly’s threat or use of force. His decision to use a firearm, in the circumstances, was unreasonable. As such, he used excessive force, leading to a rejection of the defence of self-defence and resulting in a conviction for manslaughter.

13Having considered all of the evidence and the positions of counsel, I make the following factual findings.

c. The Facts

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The Facts

Mr. Campbell-Kelly and Mr. Johnson knew each other from a prior incident. That incident was described in an Agreed Statement of Facts as follows:

On November 29, 2014, there was an altercation between Mr. Campbell-Kelly and Mr. Johnson. This altercation resulted in Mr. Johnson cutting Mr. Campbell-Kelly. He suffered a cut to his right eyebrow and eyelid, and towards the bridge of his nose, resulting in 15 stitches. This resulted in a visible scar.

15Mr. Campbell-Kelly and Mr. Johnson had seen each other since the slashing incident on November 29, 2014. However, there was no physical confrontation between them. At no time did Mr. Johnson see Mr. Campbell-Kelly with a weapon.

16On the night in question (February 7, 2020), Mr. Johnson and Ms. Smith were attending at The West Mall to visit friends. Mr. Johnson was carrying a loaded firearm in a cross-body satchel with a coat over top. As he was walking down The West Mall with Ms. Smith, Mr. Campbell-Kelly approached. Their meeting was purely coincidental.

17I am satisfied that there was some physical contact instigated by Mr. Campbell-Kelly (a body check) and a verbal altercation between Mr. Johnson and Mr. Campbell-Kelly thereafter. It was at this point that Mr. Johnson realized that the male was Mr. Campbell-Kelly. During that altercation, Mr. Johnson reached for his firearm. I am satisfied that Mr. Campbell-Kelly lunged at Mr. Johnson and grabbed him at the neck, following which Mr. Johnson shot Mr. Campbell-Kelly intentionally in the lower abdomen. I believe this for the following reasons:

a. Mr. Johnson was incarcerated immediately following his arrest for first degree murder. Mr. Christopher Musclow was his cellmate (and testified at trial). Mr. Johnson had expressed concern to Mr. Musclow about the existence of his DNA on Mr. Campbell-Kelly because Mr. Campbell-Kelly had scratched him on the neck before he was shot. This concern was expressed well before disclosure was made to Mr. Johnson and the results of the DNA analysis were provided.

b. When the DNA results were disclosed, the conclusion was that Mr. Campbell-Kelly had his own DNA and the DNA from “plus at least one person” under his fingernails. The expert could not say how the DNA from at least one person got under the fingernails but agreed that if there was a physical struggle or close contact, there could be DNA from that other person found under the nails.

c. The attention of three eyewitnesses was drawn to the window of their units at various times during the altercation. Ms. Deana Kalinich was one of them. Ms. Kalinich was the only witness who testified that she observed Mr. Campbell-Kelly backing away from Mr. Johnson with his hands up moments before he was shot. However, there are some frailties in her evidence. For example, the observations were made at night from a unit on the 15^th. floor across the street from the altercation. Things happened quickly and Ms. Kalinich agreed that she was experiencing emotional turmoil at the time. Ms. Kalinich described Mr. Johnson as wearing a black bubble jacket over a red hoodie and black Nike Air Force Ones. He was not. He was wearing a blue jacket over a white shirt and white shoes. Due to these frailties and others outlined in the charge to the jury, I cannot rely on the evidence of Ms. Kalinich and whether Mr. Campbell-Kelly was backing away with his hands up when he was shot as submitted by Crown counsel.

18I am satisfied that Mr. Johnson did not know whether Mr. Campbell-Kelly was armed at the time that he shot him but concluded that he was not armed following the shot. It was at that point that Mr. Johnson dropped the firearm and engaged in a physical altercation with Mr. Campbell-Kelly. The struggle continued until Mr. Johnson struck Mr. Campbell-Kelly in the chest and face during which Mr. Campbell-Kelly became dazed and stopped fighting. Following that, Mr. Johnson retrieved his firearm and ran.

19Ms. Smith was present when Mr. Campbell-Kelly was shot and observed the physical altercation that followed. The bullet struck Mr. Campbell-Kelly in the lower abdomen. It severed the common iliac artery. This led to rapid internal bleeding causing death.

20After the shooting, Mr. Johnson and Ms. Smith ran to their car. Ms. Smith was driving. While they were in the car and on their way to Ajax, they received news that Mr. Campbell-Kelly had died.

21In Ajax, Ms. Smith drove Mr. Johnson to a wooded area to dispose of the firearm used in the shooting. Mr. Johnson also disposed of the clothes that he was wearing at the time of the shooting and his cellphone. Ms. Smith changed her clothes. They stayed in Ajax on the night of February 7, 2020.

22Mr. Johnson and Ms. Smith returned to their apartment on February 8, 2020. While at their apartment, they packed a lot of their clothes and personal items in garbage bags. They loaded them into the car. Mr. Johnson cut his hair.

23Mr. Johnson and Ms. Smith spent the night of February 8, 2020 in the apartment. On February 9, 2020, Mr. Johnson and Ms. Smith left their apartment with their dogs and belongings. They purchased hair dye for Ms. Smith. They drove to a Motel 6 in Mississauga. A room was registered in the name of Ms. Smith.

24On the morning of February 10, 2020, Mr. Johnson and Ms. Smith were arrested at the Motel 6. They were packing up to leave the motel at the time. They were planning travel to and stay in a cottage near Orangeville indefinitely.

25It was an agreed fact that the steps taken by Mr. Johnson and Ms. Smith following the shooting were intended to conceal Mr. Johnson’s and Ms. Smith’s involvement in it.

26Based on the abovementioned facts, I find that consistent with the manslaughter verdict and implicit in the verdict is that while Mr. Johnson did not intend to kill Mr. Campbell-Kelly he acted to defend himself from Mr. Campbell-Kelly’s threat or use of force and that the decision to use his firearm was unreasonable in the circumstances. As such, Mr. Johnson’s defence of self-defence, resulting in an acquittal, was not successful and he was found guilty of manslaughter.

27The abovementioned facts support Ms. Smith’s conviction for being an accessory after the fact to manslaughter.

Victim Impact Statements

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Victim Impact Statements

Several Victim Impact Statements were filed. They may be summarized as follows:

Ms. Karen Campbell is the mother of the deceased, Mr. Campbell-Kelly. She attended at the scene of the shooting within moments of it. The last word that she heard from her son was “Mom”. She was in disbelief that he had been shot and continues to relive those moments daily. She feels pain that never gets better. As a result of her son’s death, she has suffered from depression and stopped working. She has suffered physically due to the stress and grief of her son’s death. Her heart aches with sadness. He will never be forgotten. The lives of the family have been altered forever.

Ms. Marquesha Campbell is the sister of the deceased, Mr. Campbell-Kelly. She describes that the death of her brother as the hardest thing that she has had to go through in her life. The pain is unbearable. Like her mother, Marquesha suffers from depression and is unable to work. She describes their family as close and stated, “Watching my mom go through this has been the hardest thing in the whole world. She is my rock and to see her in that state and knowing she lost her son is the hardest thing. I have to be strong while going through my own pain.”

Mr. Jahcoi Campbell-Sayers is the brother of the deceased, Mr. Campbell-Kelly. He thinks of his brother daily and cannot accept his death. He also thinks of the things that he never got to say, including goodbye. He would take his brother’s place if he had the choice and misses him with all his heart.

Ms. Monica Pinto-Kelly is the stepmother of the deceased. She describes that the family was still in the process of trying to heal from her husband’s death (Mr. Campbell-Kelly’s father) when Mr. Campbell-Kelly was shot and killed. This caused the family to move “10 steps backwards” in their healing process and it has made it more difficult. She describes Mr. Campbell-Kelly as an “amazing” son and brother. He was a good man and loved family over everything. He had a “good aura” with a smile that was “contagious”. She describes that, “Since Deandre’s death, our family has been crying in pain, sickened with sadness, unable to eat, sleep, work, or function normally. Many of us have fallen into depression because we couldn’t get out of this funk that we are in. Our hearts are all heavy.” She finished her statement, saying as follows, “By killing Deandre – our son, nephew, brother, uncle, grandson, and a loyal friend to man – our family was robbed of something money can never replace nor a life sentence. By taking our son Deandre’s life, you have made the world a colder place by destroying the bright light that Deandre could have been.”

Ms. Rose Campbell is the grandmother of the deceased. She states that Mr. Campbell-Kelly will never be forgotten and is always in her heart. He is missed.

Ms. Sylvette Wattson is an aunt of the deceased. Ms. Wattson was in disbelief when she heard that Mr. Campbell-Kelly had been shot and killed. She describes that it is hard on her children. She added, “He was killed just down the road from his home so there are so many things that never leave you, something so devastating stays with you”.

Ms. Angela Palmer is an aunt of the deceased. She describes that she and her family have not been the same since that night. She says that she visits Mr. Campbell-Kelly’s home daily waiting for him to come down the stairs with a beautiful greeting and smile. She is hurt by his passing and finds it difficult to visit his memorial site.

Ms. Demetra Downey is a cousin of the deceased. Demetra describes that her cousin’s death has changed her and will continue to haunt her. She describes Mr. Campbell-Kelly as a “quiet, humble, protective person with a sly humor”. She is haunted by nightmares and memories of the night that Mr. Campbell-Kelly died. Like other members of her family, Ms. Downey suffers from anxiety and depression. She describes that, “Most dear to my heart, we’ll never see his smile again, whether it was his sly smirk or his bright toothy grin that would make his eyes so bright and the room light up.” When he smiled, he meant it. She concluded her statement saying that she and “other loved ones will forever have to tend to our sorrow and grief because Deandre was so adored by all of us”.

Ms. Erica Grant is an aunt of Mr. Campbell-Kelly. She describes an emptiness that has been caused by her nephew’s death. Like his cousin, Ms. Grant describes a big smile and a distinct laugh that would light up a room. She has been in a state of grief since his death.

Ms. Rosemary Downey is an aunt and a godmother to Mr. Campbell-Kelly. She describes him as sweet and kind, “his generosity was priceless”. Mr. Campbell-Kelly’s death was a tragic loss to the family.

c. Background of Mr. Johnson:

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Background of Mr. Johnson

The following is a summary of Mr. Johnson’s background provided in a pre-sentence report, affidavits filed and the submissions of counsel:

a. Mr. Johnson was born on May 6, 1996, in Boston, Massachusetts. Mr. Johnson came to Canada when he was four years of age. He has two brothers. He is single with no dependents.

b. When the family moved to Toronto, Mr. Johnson resided in a home in Parkdale. Although there were incidents of violence in the neighborhood, he described his upbringing in the area as “good”. He enjoyed socializing with his peers.

c. Thereafter, the family relocated to the Lakeshore neighborhood. Drug trafficking in that area was more prevalent. At age 19, Mr. Johnson started living between that neighborhood and The West Mall. Mr. Johnson’s father disapproved of his lifestyle: staying out late, drinking alcohol, smoking, etc.

d. Mr. Johnson’s father was employed and provided for the family. He worked as a computer engineer in the United States. He spent most of his time abroad, returning to the family on weekends. During that time, Mr. Johnson’s mother stayed at home and was described as nurturing.

e. Mr. Johnson’s mother returned to Guyana when he was 16 years of age. Eventually his parents divorced. Mr. Johnson has telephone contact with his mother and is hopeful she will return to Canada. His father is remarried.

f. Mr. Johnson has a grade 11 education. He had difficulty focusing. While in high school, he was suspended and expelled for fighting.

g. Mr. Johnson has worked in a grocery store, a warehouse, doing cleaning jobs and in sales. His longest period of employment was for two years in a grocery store. He advises that he has been fired from one or two jobs. He lacked motivation which may have led him into the drug trade.

h. At age 21, Mr. Johnson moved into his own apartment with his girlfriend, Ms. Smith.

i. At age 23, Mr. Johnson began selling drugs to support himself. At the time of the shooting, Mr. Johnson was earning income from the drug trade. He had possessed a firearm for the prior four years.

j. Mr. Johnson explained that he carried a firearm on the night in question because he had been in situations where he felt he was in danger of being shot and killed. He explained that on one occasion, he was standing outside a building on The West Mall when a car pulled up. Someone inside the car started shooting at Mr. Johnson and the group he was with at the time. No one was hit. He was shot at a second time when he was in a park on The West Mall when two men came in looking for someone. Mr. Johnson ran and shortly thereafter, he heard gunshots. In 2016 he was on Rathburn Road when a car pulled up. A man got out with a shotgun and fired at Mr. Johnson. One of the pellets hit him in the leg.

k. Mr. Johnson also said the following about possessing the firearm:

After I was shot, I was afraid to leave my house. Around the same time my friend was also stabbed to death in The West Mall, which added to my anxiety. I told my friend Tony about being shot at and that I wanted to buy a gun to protect myself. He offered to give me a firearm and I accepted. For the next several years I carried the firearm whenever I went somewhere that I thought I might get shot or shot at, particularly in The West Mall. Before the night of this offence, I had never fired the firearm at anyone. I am not trying to make excuses for why I had the firearm, I know it was a stupid and dangerous decision. But when I had been shot at in the past, I was terrified and felt helpless. I thought that if I was able to shoot back, I would be able to protect myself or at least scare off the person shooting.

l. Mr. Johnson did not report the shooting incidents to the police as he did not wish to draw police attention to his community.

m. There is no evidence of any gang affiliation and Mr. Johnson denies that he is a member of one.

n. Prior to being incarcerated, Mr. Johnson was interested in fitness, dogs and learning how to cook. He has spent his time while incarcerated playing cards or exercising.

o. There do not appear to be any addiction issues. Mr. Johnson has not been diagnosed with a mental illness.

p. Mr. Johnson has described himself as a “positive, strong minded, loyal and principled person”. When faced with confrontation in the future, he intends to avoid an “aggressive response”. He denies any anger management related issues and believes that he is “good at regulating himself”. Mr. Johnson is open to working on his “decision making” skills.

q. Mr. Johnson states that he is able to consult with his father and does not believe he needs to participate in counseling. Mr. Johnson’s father is actively involved with him. They are “very close”.

r. Mr. Johnson is also prepared to disassociate himself from negative peers and to change his surroundings.

s. Mr. Johnson advises that after his sentence is imposed, he wishes to work on his high school diploma or training in a trade. He has an opportunity to live in New Brunswick where his father owns property. His father is supportive and has confirmed that he is welcome to join he and his wife in New Brunswick.

t. His father has supported him financially in the past and continues to do so now.

30Mr. Johnson has a criminal record that includes the following entries:

Date

Offence

Sentence

October 29, 2018

Traffic in a Schedule I Substance (heroin, oxycodone, ecstasy, morphine, crack, crystal meth).

90 days intermittent and probation for 90 days. Weapons prohibition for 10 years.

May 24, 2019

Assault cause bodily harm.

30 days intermittent.

Fail to comply with recognizance.

30 days intermittent and probation for 18 months. Weapons prohibition for 10 years.

31While on probation for the abovementioned offences, Mr. Johnson reported sporadically resulting in a charge of breaching his probation. However, he did reconnect with his probation officer and resumed reporting. He did not complete his counselling requirement despite his probation officer’s efforts. It was also reported that he attended at the jail to serve his intermittent sentence intoxicated.

32Records were filed from the Toronto South Detention Centre (the “TSDC”) regarding Mr. Johnson’s pre-sentence incarceration. They show that Mr. Johnson was in lockdown for 448 days. That is nearly half of his time in pre-sentence custody.

33Mr. Johnson provided some details of the conditions of his pre-sentence incarceration. He stated that the TSDC has been locked down regularly, sometimes for days in a row. During those times the inmates are unable to shower, make telephone calls, exercise or get fresh air. This resulted in protests, reducing the number of days of successive lockdowns (i.e., from four to five days to three days or less). The conditions during lockdowns have caused Mr. Johnson personal anxiety but also created tension in the facility. There has been an increased number of confrontations both between inmates and with the staff.

34The pandemic has resulted in a cancellation of programs. As such, Mr. Johnson has been unable to participate in programs that may rehabilitate him. This has also resulted in increased tension because there is little to do in the prison.

35The records from the TSDC show that Mr. Johnson has been involved in a number of misconducts since being incarcerated. They include three assaults and possession of contraband, amongst other things.

36Mr. Johnson’s father was present for a great deal of the trial. He was interviewed by the probation officer in preparation of the pre-sentence report and provided an affidavit to the Court. His evidence may be summarized as follows:

a. He confirmed that Mr. Johnson’s mother left Canada and that he continued his employment abroad. His children were left without a consistent parental guardian. He did his best to set a positive example, supporting education and values. He is the main support system for his son and describes that his relationship with his son is “as solid as it can be”.’

b. He states that Mr. Johnson was bullied at school. He started to stand up for himself and got into fights. He started fainting. A psychiatrist concluded that Mr. Johnson was suffering from stress induced fainting spells. His mother’s departure caused additional stress to the family.

c. He believes that his son may suffer from dyslexia.

d. Mr. Johnson’s father describes that he is “devastated and shocked” by the offences committed by his son. He advised that his son is “caring, respectful” and “reliable”. He tries to be the protector for others. He feels that his son would benefit from addressing his work ethic and committing to long term goals.

e. He confirmed that Mr. Johnson can reside with him in New Brunswick, live on their farm outside of Salisbury and help to manage the four rental properties they have there. Mr. Johnson Sr. believes that living with him in New Brunswick will get Mr. Johnson “away from the circumstances and social circles that have contributed to the poor decisions he has made so far”.

f. Mr. Johnson Sr. ended his affidavit with the following:

I would like to finish by saying that I am not naïve. I know that Anthony’s life so far has not been productive, and that meaningful change takes time, hard work, and dedication, not just a change in scenery. But I am willing to do whatever I can to ensure that my son’s life amounts to more than what he has done, and I believe that with support and guidance, Anthony can reach his full potential.

37Mr. Johnson has expressed remorse for his actions and he accepts responsibility. He advised the probation officer that he “should not have been walking around with a loaded gun, fearful or not, and because of this someone lost a family member, and I am in jail”.

38At the conclusion of the sentencing hearing, Mr. Johnson said the following:

I would just like to apologize for my involvement in this situation. I want to apologize to the Campbell family for the loss of Deandre. I never intended for anything like this to happen and I promise to never walk with a firearm again and I am truly sorry to the court and to Deandre’s family.

Background of Ms. Smith

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Background of Ms. Smith

The following is a summary of Ms. Smith’s background:

a. Ms. Smith is 21 years of age. She is a first offender.

b. Ms. Smith was born in Mississauga. She is the only child of her parents’ common law relationship. Her father has 12 children from prior relationships.

c. When Ms. Smith was a little over 9 months old, her mother left her father because she was the victim of significant domestic violence. Ms. Smith has had little, if any, contact with her biological father. Ms. Smith describes that she was raised in a positive environment by her mother.

d. Ms. Smith’s relationship with Mr. Johnson began when she was 16 years of age and he was 20. She resided with him in Toronto just prior to turning 17 years of age. That relationship ended with the criminal charges.

e. Ms. Smith is currently single and is residing with her mother.

f. Ms. Smith began working at 14 years of age at a call centre and a local grocery store. At the time of these offences, she was employed by a taxi company. She is primarily supported through social assistance.

g. Ms. Smith graduated from high school in 2018. She had planned to attend school to become certified as an ultrasound or x-ray technician.

h. Ms. Smith does not appear to have any substance abuse problems. There is no diagnosis of mental illness.

i. With respect to the offences before the Court, Ms. Smith describes herself as “being in the wrong place at the wrong time”.

j. While on bail, Ms. Smith has started a chocolate business.

40Several character letters were provided on behalf of Ms. Smith. They were from personal friends and family. Most, if not all, stated that they were shocked when they learned of Ms. Smith’s conviction for being an accessory after the fact to manslaughter. The following is a brief summary of those letters:

Ms. Tracey Rodrigues is a friend of the family. She met Ms. Smith’s mother in 2004. She has known Ms. Smith for years and describes her as “respectful, full of joy and a polite child”.

Ms. Sommer Kusch is a friend who has known Ms. Smith for almost 14 years. She describes Ms. Smith as a “beautiful person” and a friend whom she could rely upon. Ms. Smith loves and supports Ms. Kusch’s disabled brother. She states that Ms. Smith does not have a “harmful bone in her body”.

Ms. Sarah Tait has been a friend of Ms. Smith’s for approximately four years. She has seen Ms. Smith fairly often since the incident. She says that the remorse and regret that Ms. Smith has for her actions is “apparent”.

Ms. Tracy Esford is a very close family friend who has known Ms. Smith’s mother since 1992. She was in disbelief and shock when she learned of Ms. Smith’s involvement in this matter. She describes Ms. Smith as “warm and loving”. She is aware that Ms. Smith suffered in school being bullied and the subject of racial slurs. That said, Ms. Smith formed “beautiful friendships” and was active in school activities, sports and social events. She states that Ms. Smith is a “wonderful woman who had a very bright future”. Ms. Esford describes Ms. Smith as “smart, beautiful, funny, intelligent, loving and had a whole lot to offer the world”.

Ms. Shantea Bryan is a friend who is like a sister. She describes Ms. Smith as a confident and motivated person. She is loyal, loving and caring. She is kind and patient with others. She helps those in need, including the homeless. When Ms. Smith was released from custody, she started a business – selling chocolate covered items. Ms. Bryan believes that Ms. Smith can “do a lot and change her life around while she still has the chance”.

Ms. Shadae Indruliunas Reyes is a friend and has known Ms. Smith for approximately four years. She describes that Ms. Smith has “shown nothing but kindness and compassion to everyone around her”. She says that Ms. Smith is hard working and someone who can accomplish much of which comes her way. She is not judgmental and provides sound advice. Ms. Reyes believes that society needs more women like her.

Ms. Alexandria Cunliffe-Mcgregor has known Ms. Smith for approximately seven years. She describes Ms. Smith as a “very giving and understanding person and always wants to see everyone around her do good”. She is dedicated to friends and family. She, too, states that Ms. Smith “feels remorse and if she could, she would change that whole night, but she cannot and is willing to make things right with all parties involved”.

Ms. Tracy Glidden is an aunt. She describes that Ms. Smith has a charming personality with an infectious laugh. She will do what she can to help others. Ms. Glidden is supportive of her niece and observes that while on house arrest, she created a business.

Ms. Sigrun Smith is Ms. Smith’s grandmother. She describes a positive upbringing of Ms. Smith including involvement in sports and other activities both at school and with the family. She describes the success of the chocolate business but also advised that Ms. Smith is not sleeping well and that the family is concerned about her mental health.

Ms. Thomasina Stewart is a sister. She describes Ms. Smith as “young, smart, talented” who does well in school and enjoyed being with her family. Ms. Smith has expressed remorse to the family of the deceased and the deceased himself. She is now sad and confused. She is disappointed and embarrassed.

Ms. Akiesha Davidson is a sister. They are close and Ms. Davidson supports Ms. Smith. She describes her sister as hardworking. She has assisted by volunteering for the homeless and is a reliable member of the community. Ms. Smith is described as gifted with a fantastic imagination. She is an entrepreneur who has “displayed a strong demeanor in overcoming her mistake in a positive and productive way”.

41Ms. Smith apologized for her involvement in this offence and stated as follows at the conclusion of her sentencing hearing:

I just want to say I’m sorry that I became involved in this matter and I am deeply and truly sorry for the loss to Deandre’s family.

The Legal Framework: Sentencing

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The Legal Framework: Sentencing

The following is a summary of the legal principles applicable in sentencing for manslaughter and accessory after the fact to manslaughter.

a. General Principles

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General Principles

In determining an appropriate sentence for Mr. Johnson, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

44The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).⁸

b. The Range: Manslaughter

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The Range: Manslaughter

The maximum sentence for manslaughter is life imprisonment. However, s. 236(a) of the Criminal Code imposes a four-year minimum sentence for manslaughter with a firearm.

46There are a wide range of circumstances that may result in a conviction for manslaughter. The spectrum of manslaughter convictions can range from an “unintentional and almost accidental killing” to “those approaching murder at the opposite extremity”.⁹ The varying circumstances in manslaughter cases give rise to the wide variation in the sentences imposed.¹⁰

47Manslaughter is a serious offence because it involves the taking of a life and would normally attract a lengthy sentence.¹¹ In order to arrive at an appropriate sentence in a particular case, the sentencing judge is required to consider the context in which the manslaughter occurred and as a result, is case-specific to the facts of the offence and the offender.¹² Provocation is a mitigating factor that must be taken into consideration in sentencing.¹³

48As the sentencing Court, I have considered the sentencing precedents in cases involving convictions for manslaughter that were provided by both counsel. Although sentencing in manslaughter cases is case specific, the Ontario Court of Appeal has held that in cases where the conduct of the offender was accompanied by aggravating features, the applicable range of sentence is usually between 8 to 12 years.¹⁴

49The Crown provided several cases in support of their position that Mr. Johnson should serve 12 years in custody. While I have considered all of their cases, I find the following to be most instructive:

R. v. Gill:¹⁵ Mr. Gill was found guilty of manslaughter by a jury. Mr. Gill had shot and killed the deceased but only after having been provoked by the deceased who struck him in the head with a bottle and grabbed him. He shot five rounds into the deceased and a bystander was shot. Following the shooting, he drove off and then burned the car he escaped in from the scene. He also disposed of the firearm in a river. Mr. Gill was 24 years of age and was actively selling drugs and carrying a loaded firearm at the time of the shooting. He had a significant record and was subject to a weapons prohibition. He was in breach of a recognizance and probation order as well. Mr. Gill was sentenced to 10 years’ imprisonment.

R. v. Robert-Stevens:¹⁶ Mr. Robert-Stevens shot the thigh of the deceased at close range. The victim bled to death at the scene. Mr. Robert-Stevens was charged with second degree murder, but he was convicted by a jury of manslaughter. Aggravating factors included that Mr. Robert-Stevens armed himself with a firearm; the shooting took place in a residential neighbourhood; Mr. Robert-Stevens possessed the firearm as part of his drug trafficking operation; and he was in breach of two probation orders and two weapons prohibitions. Mitigating factors included that Mr. Robert-Stevens was a young person and although he had a criminal record, he had only spent 90 days in jail. Mr. Robert-Stevens was remorseful. Mr. Robert-Stevens was sentenced to 10.5 years’ imprisonment.

50In support of the position of a sentence of 6 years’ imprisonment, Counsel for Mr. Johnson relies on a number of cases, including the following:

R. v. Young:¹⁷ Mr. Young had made arrangements with the deceased to conduct a drug transaction. The deceased entered Mr. Young’s vehicle and produced an imitation firearm with the intention of robbing Mr. Young. Mr. Young pulled out a firearm and shot the deceased in the buttocks area. The deceased suffered a penetrating gunshot wound to the left buttock that severed an artery. During Mr. Young’s plea, it was agreed that he had no intention to kill and that his conduct in shooting the deceased exceeded the scope of self defence. Mr. Young had no criminal record. Crown counsel sought a sentence of 8 years, the defence 5 years. Forestell J. imposed a sentence of six years, recognizing the mitigating factors such as a plea of guilt at an early opportunity in a case that was not overwhelming. There were arguable defences and the case would have consumed considerable court resources at a time where the courts are facing unprecedented backlogs because of the COVID-19 pandemic.

R. v. Sahal:¹⁸ Mr. Sahal was convicted following a jury trial. Mr. Sahal had confronted the deceased over a drug debt. During the confrontation, he fired a shot to intimidate the deceased into repaying the debt. The bullet hit the deceased in the chest, killing him. Mr. Sahal was a youthful first offender. He had family support and a history of employment. He was in a committed relationship. Dambrot J. imposed a sentence of six years. In his view, the sentence balanced the paramount need to strongly denounce gun violence and the need for general deterrence against Mr. Sahal’s rehabilitative prospects.

R. v. Surendran:¹⁹ Mr. Surendan pleaded guilty to manslaughter based on provocation. The killing arose out of a drug deal. The deceased was Mr. Surendran’s customer. On the day in question, the deceased confronted Mr. Surendran and gained physical control over him. Mr. Surendran called for assistance, but none came. He was armed with a .22 calibre revolver. He fired two shots at the deceased in self-defence and then several more after the deceased had released him, including a shot to the head. Mr. Surendran had a lengthy criminal record and had served time in the penitentiary for offences of violence; was armed with an illegal firearm; used it and was a drug dealer. Fuerst J. recognized the mitigating factors that included a plea of guilt in a case that was not overwhelming; that he was raised in a home that was unstable; that he suffered a head injury; and that he acted under provocation; etc. She imposed a sentence of eight years imprisonment.

c. The Range: Accessory After the Fact to Manslaughter

[51]

The Range: Accessory After the Fact to Manslaughter

The cases filed by counsel demonstrate that there is a wide range of sentences imposed for the offence of accessory after the fact to manslaughter. In support of their position of three years’ imprisonment, Crown counsel relies on the following cases:

R. v. Jourdain:²⁰ Ms. Jourdain was Indigenous. She pleaded guilty to the offence of accessory after the fact to murder. Ms. Jourdain was present when Mr. Grover stabbed the deceased. She and Mr. Grover wrapped the victim’s body in blankets and dragged him to the basement apartment. The floor was mopped. She and Mr. Grover took the victim’s bank card, withdrew approximately $10,000 from his account and spent the money on narcotics. Ms. Jourdain had a troubled upbringing and showed remorse for her crime. She had a criminal record and was sentenced to 27 months, time served.

R. v. Chouinard:²¹ Ms. Chouinard was present for the brutal beating of the deceased. Her co-accused was her half-brother. Following the death, she directed her half-brother to wash the blood off the body, place it in a shopping cart and dispose of it in a river. She cleaned up the blood in the kitchen and disposed of the clothing. Ms. Chouinard was indigenous and had a horrible upbringing. The Court imposed a sentence of 3.5 years. After the pre-sentence custody was deducted, she was permitted to serve her sentence in the community.

R. v. Whyte:²² Ms. Whyte was the girlfriend of Mr. 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 and he was the registered owner of it. He changed the colour. When it became publicized that the police were looking for the vehicle, Ms. Whyte attended at the MTO and changed the colour in the records (i.e., from blue). Ms. Whyte was 25 years of age at the time and was a first time offender. She was sentenced to 3.5 years in jail after a jury found her guilty.

52In support of his position on sentencing, Counsel for Ms. Smith provided cases, some of which may be summarized as follows:

R. v. D.M.G.:²³ D.M.G. pleaded guilty to the offence of accessory after the fact to manslaughter. D.M.G. was Indigenous. Following a stabbing at a party, D.M.G. came into possession of the knife that was used in it. At the time of sentencing, she had refused to disclose what she did with the knife. D.M.G. was given a sentence of 2 years less a day to be served in the community.

R. v. Nordman:²⁴ Mr. Nordman was found guilty of obstructing justice. He took and disposed of a knife that had been used by a friend to stab a man to death. Mr. Nordman was aware of the stabbing (although not present) but did not know the man had died. He was 25 years of age, had steady employment and no criminal record. A conditional sentence of 18 months was imposed.

R. v. Jayawardena:²⁵ Mr. Jayawardena pleaded guilty to being an accessory after the fact to first degree murder. The murderer fled to Hamilton after the offence. Mr. Jayawardena assisted the murderer by getting a passport; disposing of the car used in the killing and getting him a cell phone. He lied under oath to the police as did his girlfriend (suggesting collusion). He was a first-time offender with a job in a bank. He had a loving and supportive family and showed remorse. He was sentenced to 18 months imprisonment.

R. v. Steadman:²⁶ 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. He was sentenced to 4 years imprisonment.

53Most cases relied referred to the comments of Watt J. (as he then was) in the case of R. v. Wisdom.²⁷ 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 removing the body from the scene and cleaning the room. The clean up took two days. Besides wiping down the surfaces, the carpet was shampooed. Bloodied towels and linens were taken out, laundered and returned. Mr. Wisdom was sentenced to 5 years imprisonment.

54In sentencing Mr. Wisdom, Watt J. considered the following principles amongst others:

27 Accessoryship after the fact to a crime is an offence which constitutes an interference with the administration of justice. An offence has been committed by a principal offender, in this case the crime of murder. It is the purpose of the accessory, as it was of this accused, to enable, indeed to facilitate, the principal offender to escape detection and/or punishment for his or her criminal conduct. By the means adopted, whatever they may be, the accessory interferes with the investigation of crime and the detection of offenders. Serious crimes may go unsolved and dangerous criminals left at liberty only to re-offend. The resourceful accessory stifles the investigation and deflects attention from the true principal, as much as the suborned witness' perjury seeks to avoid successful prosecution. The due administration of justice is defeated in the event of success, as much in the one case as it is in the other.

28 Accessoryship after the fact frustrates the legitimate investigation of crime. It is as much a part of such investigation to clear the innocent, as it is to convict the guilty. To the extent that accessories deflect the investigation and investigators from their proper or true course, the attendant risks are obvious.

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. In this respect, see, for example, R. v. Kerrigan; R. v. Panayiotou (1972), 57 Cr. App. R. 269 (CA-CD). It is a fortiori where the offence of the principal is itself grave. See, R. v. Morgan (1971) 56 Cr. App. R. 181 (CA-CD).

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 the proper trial of alleged offenders. Those who set out with such a purpose shall be punished, and severely.

d. Other Considerations: Pre-sentence Custody

[55]

Other Considerations: Pre-sentence Custody

It is agreed that both Mr. Johnson and Ms. Smith should be given credit for the time they have spent in pre-sentence custody pursuant to s. 719(3.1) of the Criminal Code and R v. Summers.²⁸

56It is also agreed that in certain circumstances, harsh pre-sentence incarceration conditions can be relevant in the determination of an appropriate sentence: see R. v. Duncan.²⁹ The approach to be taken in considering the harsh conditions of pre-sentence incarceration was clarified by Doherty J.A. in R. v. Marshall:³⁰

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.

57In light of Marshall, the practice of assigning a credit of a specific number of days or months to punitive conditions of pre-sentence custody is not to be encouraged. The reason? It may skew the fact that the harshness of pre-trial custody is only one of many factors that go into the determination of an appropriate sentence.³¹ That said, pre-sentence custody is a relevant consideration on sentencing.

58Lastly, Ms. Smith was released on house arrest. It is agreed that stringent bail conditions, especially house arrest, are a factor to be considered on sentencing.³² Conditions can be punitive and akin to custody.³³ Factors to consider include the time spent on bail, the stringency of those conditions, their impact on the offender’s liberty and the ability of the offender to carry on a normal relationship, employment and activities.

59I will now turn to a consideration of the fit sentence.

The Fit Sentence: Mr. Johnson

[60]

The Fit Sentence: Mr. Johnson

In considering the fit sentence for Mr. Johnson, I find the following to be the aggravating factors:

a. Mr. Johnson was not employed at the time of the offence. He was a self-admitted drug dealer.

b. Mr. Johnson has a criminal record, including entries for violence and drugs.

c. Although he has not been sentenced for a lengthy period of time in custody previously, he has served sentences in custody. Such sentences did not deter him.

d. Mr. Johnson had a sporadic rate of compliance with his probation order.

e. Mr. Johnson was subject to two weapons prohibitions at the time of this offence (pursuant to ss. 109 and 110 of the Criminal Code). He was also on a probation at the time of this offence. His conduct shows a complete disregard for court orders.

f. Regardless of the reasons provided, Mr. Johnson was armed with a loaded firearm at the time of the offence and had possessed the firearm for four years prior to this shooting.

g. Mr. Campbell-Kelly was shot and killed in a residential neighbourhood. He did not render or call for assistance for Mr. Campbell-Kelly.

h. Mr. Johnson’s post-offence conduct consisted of departing the scene, fleeing the jurisdiction and disposing of the murder weapon. He changed his appearance. His flight continued over three days. The plan was to flee indefinitely.

i. Mr. Johnson did not assist Mr. Campbell-Kelly by calling for assistance.

j. The impact on the family and community of Mr. Campbell-Kelly has been devastating. The words contained in their Victim Impact Statements fail to demonstrate the everlasting effects of this senseless death that was communicated by the emotion shown during the reading of the statements by various authors at court.

61In considering the fit sentence for Mr. Johnson, I find the following to be the mitigating factors:

a. Mr. Johnson is a relatively young man. He was 24 years of age at the time the offence was committed and 26 years of age now.

b. Mr. Johnson has been employed in the past.

c. Mr. Johnson is motivated to obtain his GED and an education in the trades.

d. Mr. Johnson had a difficult upbringing with a mother who returned to Guyana and a father who was absent due to his employment. That said, he does have a father who supported him financially and emotionally.

e. Mr. Johnson has the continued support of his father and his father’s wife. They are willing to have him live with them in New Brunswick. They will support his educational and employment opportunities there.

f. Mr. Johnson has been incarcerated during the pandemic and will continue to be incarcerated during the pandemic.

g. Mr. Johnson has suffered the consequences of successive lockdowns due to both staff shortages and the pandemic at the TSDC.

h. I have found that Mr. Johnson was provoked in the sense that he did not initiate the altercation.³⁴

i. Mr. Johnson has apologized to both the Court and the family of Mr. Campbell-Kelly, showing his remorse.

62In sentencing Mr. Johnson, I recognize that no sentence that I impose can bring Mr. Campbell-Kelly back to life. Nor can any sentence I impose reflect the enormity of the loss suffered by those who loved him. That was obvious during the trial and, more particularly, during the sentencing hearing.

63In this case, there is a difficult balancing of the goals of denunciation, deterrence, and rehabilitation. The appropriate sentence must be one from which our society feels protected and deters others from committing similar crimes without crushing the hopes of Mr. Johnson through rehabilitation. This is particularly so when dealing with youthful offenders such as Mr. Johnson who have the support of a positive role model (his father) and a secure place to live (New Brunswick).

64In reaching my conclusion about the fit sentence, I am also mindful of the fact that this is Mr. Johnson’s first visit to the penitentiary and of the direction of Rosenberg J.A. in R. v. Borde,³⁵ that a “first penitentiary sentence should be as short as possible”. That said, the jump principle is not applicable in light of the seriousness of this offence, including the moral blameworthiness of Mr. Johnson.

65Mr. Johnson is not a first offender. At the time of this offence, he was an admitted drug dealer who carried a loaded firearm in the City of Toronto for four years prior to shooting and killing Mr. Campbell-Kelly. Particularly aggravating, is that Mr. Johnson was prepared for a violent encounter, was ready to use the firearm and he did so. The life of a valuable member of our community was lost.

66Mr. Johnson has shown a complete disregard for the court orders that prohibited him from possessing weapons and in particular, firearms. Three orders were imposed to control his behaviour and to protect our community from the consequences that arise from such possession – in this case death.

67Mr. Johnson’s conduct must be denounced and a message must be sent to those who arm themselves with illegal firearms. Firearms possession continues to be a plague on our society and it must be addressed by the imposition of a lengthy jail sentence.

68Having considered the aggravating and mitigating factors of this case, including the fact that Mr. Johnson was subject to lockdowns, I was of the view that a sentence of 10 years would be appropriate.

69However, all counsel submit and I agree that an adjustment of Mr. Johnson’s sentence is appropriate due to the conditions of his pre-sentence incarceration. I find that he has experienced conditions that are more difficult or punitive than the restrictions normally associated with pre-trial detention. This is due to the lockdowns at the TSDC and the pandemic conditions.

70There has been hardship suffered due to the lockdowns, most of which were the result of staff shortages. I echo the sentiments of my colleagues, that although the message is being sent to our government that they must properly staff institutions to permit inmates to reside in humane conditions, that issue has remained, for the most part, unresolved.³⁶

71Mr. Johnson has served some of his pre-sentence custody and is being sentenced during the global COVID-19 pandemic. The circumstances of COVID-19 adversely affect the conditions of imprisonment. There are increased risks for those incarcerated in any institution, both pre-sentence and post sentence. This observation has been made by several jurists, including Harris J. in R. v. Kandhai.³⁷

72While I would have been inclined to impose a sentence of 10 years’ imprisonment, I will reduce it to 9 years to account for the harsh conditions of Mr. Johnson’s pre-sentence incarceration. There has been a punitive impact due to the hardship of pre-sentence custody.

73Mr. Johnson has spent 977 days in custody. Enhanced at 1.5 days for each day spent in pre-sentence custody (pursuant to Summers), Mr. Johnson will be given credit for 1,465 days (977 + 489 = 1,465 days) or 49 months. This leaves a sentence to be served by Mr. Johnson of 4 years, 11 months (59 months).

Conclusion re: Mr. Johnson

[74]

Conclusion re: Mr. Johnson

Mr. Johnson is sentenced to 9 years (108 months) for the offence of manslaughter. Mr. Johnson will be given credit of 49 months. This requires that Mr. Johnson serve another 59 months or 4 years, 11 months in custody.

75Mr. Johnson has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment. As such, a prohibition order under s. 109(1)(a) of the Criminal Code is mandatory. Pursuant to s. 109(2), I direct that Mr. Johnson be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition, or explosive substance for life.

76Manslaughter is a primary designated offence within the meaning of s. 487.04(a) of the Criminal Code and accordingly, a DNA order is mandatory. Therefore, I direct that Mr. Johnson provide a sample of his DNA.

The Fit Sentence: Ms. Smith

[77]

The Fit Sentence: Ms. Smith

In considering the fit sentence for Ms. Smith, I find the following to be the aggravating factors:

a. Ms. Smith was present during the shooting. Like Mr. Johnson, she did not render any assistance after Mr. Campbell-Kelly was shot and dazed.

b. She assisted Mr. Johnson in escaping the scene and disposing of evidence, including the firearm used during the incident.

c. Over a three-day period, she assisted Mr. Johnson in escaping justice by driving him, packing up the apartment and renting a hotel room in her name to avoid police detection. Hair dye had been purchased to change her appearance and the plan was to flee indefinitely.

d. Acting as an accessory after the fact, Ms. Smith frustrated the legitimate investigation of a serious crime.

e. Her involvement was not transient. It was well thought out over a period of days. As such, the conduct was significant in nature, extent and duration.

f. There is no evidence that Ms. Smith was threatened or coerced by Mr. Johnson.

g. Ms. Smith was aware that Mr. Johnson had a firearm prior to this occurrence although she did not approve.

h. Like Mr. Johnson, her conduct following the death of Mr. Campbell-Kelly has devastated his community.

78In considering the fit sentence for Ms. Smith, I find the following to be the mitigating factors:

a. Ms. Smith is young. She began her relationship with Mr. Johnson at age 16 and was involved in this offence at age 19.

b. Ms. Smith had a positive upbringing by a mother and family who cared for her.

c. Ms. Smith continues to have the support of her community, including family and friends. They have described her conduct as out of character.

d. Ms. Smith was incarcerated for just over 7 months during the pandemic and suffered the consequences of it.

e. Ms. Smith has been subject to house arrest since her release (just over two years). The terms were similar to a conditional sentence order.

f. Despite the terms of her release, she has made wise use of her time by starting a business. This bodes extremely well for her rehabilitation.

g. Ms. Smith is a first-time offender.

h. Ms. Smith has shown remorse for her involvement in this crime.

79In the circumstances, I find that a sentence of 27 months would be entirely appropriate. However the sentence will be reduced to 24 months (2 years) in light of the conditions of Ms. Smith’s pre-sentence incarceration. Such a sentence would address the principles of denunciation and deterrence. She is entitled to a reduction of this sentence for a variety of reasons.

80Ms. Smith was arrested on February 10, 2020. She was released on September 8, 2020. As such, she spent 212 days in custody. Enhanced at 1.5 days for each day spent in pre-sentence custody (pursuant to Summers), Ms. Smith will be given credit for 318 days (212 + 106 = 318 days) or 10.5 months.

81Ms. Smith was on strict house arrest from September 8, 2020, until the date of sentencing (October 13, 2020). This is a period of 766 days (25 months, 6 days). I agree with Crown counsel that Ms. Smith suffered some hardship warranting credit pursuant to Downes. As such, I will give her credit of 9 months.

Conclusion Re: Ms. Smith

[82]

Conclusion Re: Ms. Smith

For the abovementioned reasons, Ms. Smith’s sentence will be as follows: 2 years less 19.5 months for a further 4.5 months to serve.

83Although Ms. Smith is a first offender, I have concluded that the conviction for being an accessary after the fact to manslaughter is serious. The circumstances in which it was committed favour an order that Ms. Smith provide a sample of her DNA. The impact on Ms. Smith’s privacy and security is minimal. As such, and pursuant to s. 487.051(3), I have concluded that it is in the best interests of justice that Ms. Smith provide a sample of her DNA.

84Pursuant to s. 110(1)(b) of the Criminal Code, I direct that Ms. Smith be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition, or explosive substance for a period of ten years. She was aware that Ms. Johnson had possessed a firearm for some time before the incident and assisted in disposing of the firearm thereafter.

Conclusion

[85]

Conclusion

Mr. Johnson is sentenced as follows for the offence of manslaughter: 9 years (108 months) less pre-sentence custody of 4 years, 1 month (49 months) for a further sentence of 4 years, 11 months (59 months) to serve. Mr. Johnson is subject to a DNA order and a weapons prohibition for life.

86Ms. Smith is sentenced as follows for the offence of accessory after the fact to manslaughter: 2 years less 19.5 months pre-sentence custody and harsh terms of release for a further 4.5 months to serve. Ms. Smith is subject to a DNA order and a weapons prohibition for 10 years.

Kelly J.

Footnotes

1. 1R. v. Ferguson, 2008 SCC 6, [2008] 1 SCR 96, at para. 16
2. 2Section742(2) of the Criminal Code
3. 3Ferguson, at para. 17
4. 4Ferguson, at para. 18
5. 5Ferguson, at para. 18
6. 6Section 724(3)(d) of the Criminal Code
7. 7Section 724(3)(e)
8. 8See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773.
9. 9R. v. Carrière (2002), 2002 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10; R. v. Kehl, 2019 ONSC 7561, at para. 37.
10. 10R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 40
11. 11R. v. Head, [1985] O.J. No. 153 (C.A.).
12. 12R. v. Simcoe, 2002 5352 (ON CA), [2002] O.J. No. 884 (C.A.)
13. 13R. v. Clarke, (2003) 2003 28199 (ON CA), 172 O.A.C. 133 (C.A.)
14. 14R. v. Clarke, at para. 8; R. v. Devaney (2006), 2006 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.), at paras. 33-34; R. v. Cleyndert, 2006 33851 (Ont. C.A.), at paras. 12-13; and R. v. Tahir, 2016 ONCA 136
15. 152011 ONSC 2598
16. 162019 ONSC 257
17. 172022 ONSC 1143
18. 182016 ONSC 6864
19. 192020 ONSC 3378
20. 202016 ONSC 7890
21. 21[2005] O.J. No. 3143
22. 222016 ONSC 518
23. 23[2006] N.S.J. No. 614
24. 24[2004] B.C.J. No. 2057
25. 25[2008] O.J. No. 3406 (S.C.J.)
26. 262010 BCCA 382
27. 27[1992] O.J. No. 3110 (S.C.J.)
28. 282013 ONCA 147, 114 O.R. (3d) 641; aff’d 2014 SCC 26, [2014] 1 S.C.R. 575
29. 292016 ONCA 754, at para. 6
30. 302021 ONCA 344, at para. 52
31. 31Ibid, at para. 53
32. 32R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 (C.A.), at para. 33
33. 33Downes at para. 29 R. v. Joseph, 2020 ONCA 733 at para. 108
34. 34R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, at para. 237; and R. v. Clarke, 2003 28199 (ON CA), [2003] O.J. No. 1966 (C.A.)
35. 35(2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 3
36. 36See R. v. Persad, 2020 ONSC 188
37. 372020 ONSC 1611