Court File and Parties
COURT FILE NO.: CR-22-70000201-0000 DATE: 20230802
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – NEHEMY YOGO
Counsel: Alexander Merenda, for the Crown Mahvash Mirza, for the Accused
HEARD: March 13, May 31, June 22 and July 5, 2023
Reasons for Sentence
HIMEL J.
[1] Nehemy Yogo entered a plea of guilty to a charge of possession of a prohibited firearm without being the holder of a licence or registration contrary to section 95(1) of the Criminal Code of Canada. He elected to be tried by a judge sitting alone.
[2] Because of the COVID-19 pandemic and the Notice to the Profession of Chief Justice Morawetz, some of the proceedings were held by Zoom with the consent of all parties and other appearances were in person. Mr. Yogo confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence.
[3] At the time the plea of guilty was entered, I ordered that a pre-sentence report be prepared. Unfortunately, there were some adjournments until the sentencing hearing could take place. The report has been received and reviewed by counsel. Counsel have provided their submissions on sentence. The following are my reasons for sentence.
Factual Background
[4] On Friday, October 23, 2020, Toronto Police Services were dispatched to 677 Queen Street East in Toronto in response to a person with a gun call. The complainant Vincent Nkurunziza contacted 911 and reported that someone was following him with a gun. The background to this event was that the complainant reported to police that on October 22, 2020, he had agreed to drive several men from Thunder Bay back to Toronto for $1,500. The complainant was a new resident to Toronto and on one other occasion agreed to a similar private driving arrangement. He initially found his contact on a Kijiji advertisement looking for a driver. During the trip, he was paid $1,100 and was told that he would be paid the remainder of the balance upon arrival in Toronto. Given the distance of the drive, Mr. Nkurunziza and three male passengers he had picked up stopped at a motel for a night in Sault St. Marie. These males remain unidentified. Mr. Nkurunziza paid for the hotel with the expectation that he would be further reimbursed $250.
[5] On October 23, 2020, the complainant and the three male passengers arrived back in Toronto. During the ride, one of the passengers input the address of “230 Sackville Street” into Mr. Nkurunziza’s cellphone GPS. The balance of the debt to Mr. Nkurunziza remained outstanding.
[6] At 3:00 p.m., the parties arrived outside 230 Sackville Street in Toronto. The complainant had still not been paid the balance of the debt that was owed to him. One of the unidentified males got out of the front passenger side of the vehicle and indicated that he was going inside the building to get the rest of the money. The other unidentified males remained waiting in the back seat of the vehicle outside of 230 Sackville Street.
[7] Shortly after 3:00 p.m., while continuing to wait, the second male exited the back driver’s side passenger seat and entered the front passenger side of the vehicle. After 15 minutes, this male and the other male were whispering to each other and texting on their cell phones. Mr. Nkurunziza inquired when the first male was returning. The second male responded that he was not coming back and that he should just drive them to his residence so he could pay the difference. Mr. Nkurunziza denied this request and an argument ensued regarding the outstanding payment. Mr. Nkurunziza noted that the male had two cellphones. During the verbal altercation, Mr. Nkurunziza grabbed one of the cellphones belonging to this male and said he would not leave or give back the cellphone without his money.
[8] During the argument at approximately 3:43 p.m., a male that Mr. Nkurunziza said that he had never seen before exited the building at 230 Sackville Street and approached the vehicle’s passenger side window. This man was Mr. Nehemy Yogo. This is captured on surveillance. Mr. Nkurunziza advised that the male spoke to the other males outside of the vehicle and then asked him what was going on. Mr. Nkurunziza attempted to explain that he had driven the men back from Thunder Bay and expected payment for his services. Mr. Nkurunziza reported that Mr. Yogo lifted his jacket exposing what appeared to be the end of a black firearm tucked in the waistband underneath his clothing and said, “Use your head, if I give it to him, he will finish you” and then walked away. There was no physical violence.
[9] Mr. Yogo walked back into 230 Sackville immediately after. Following this, the male walked around the vehicle attempted to enter the driver’s side door. In a panic, Mr. Nkurunziza fled the scene and reported that the males began to chase him. During his escape, he mounted curbs and sped away to safety. At approximately 3:47 p.m., Mr. Nkurunziza escaped from the men chasing after him and contacted 911. Officers responded and spoke to Mr. Nkurunziza. After reviewing officer reports, surveillance video and conducting investigative database checks, and receiving information about building records and the information reported by Mr. Nkurunziza, Detective Constable Graham Ellis swore an affidavit contained with the ITO and received a search warrant from a Justice of the Peace on October 26, 2020 for Unit 518, 230 Sackville Street to search for any firearms or clothing believed to have been worn by Nehemy Yogo. On October 27, 2020 at approximately 7:00 p.m., 51 Division Major Crime Unit and Emergency Task Force officers executed the search warrant by dynamic entry. Mr. Yogo and his father were located within the address.
[10] During the search of Mr. Yogo’s bedroom, police located a fully automatic Glock 23 Gen 4 firearm with a detachable box cartridge loaded magazine holding .40SW calibre ammunition contained within a satchel (10 rounds). The clothing seen on the surveillance being worn by Mr. Yogo was also located. Mr. Yogo and his father were jointly charged and arrested, given their rights to counsel, transported to 51 Division, and processed pending a show cause hearing.
Evidence on the Sentencing Hearing
[11] Crown counsel filed the Agreed Statement of Facts as an exhibit. The pre-sentence report prepared by the probation officer was also made an exhibit. It outlines Mr. Yogo’s background and suitability for community supervision, topics which are referenced below. Crown counsel also submitted in evidence a document entitled “Response to Covid-19 Information Note” dated March 2, 2021.
[12] The defence submitted the lockdown records for Mr. Yogo from the Toronto South Detention Centre for the period of time that Mr. Yogo was detained following his arrest until February 18, 2021. During his incarceration at the Toronto South Detention Centre, there were 51 lockdowns. In an affidavit filed, Mr. Yogo explained that during lockdowns, he was unable to shower, did not receive clean laundry and bedding, the cells were infested with ants, cockroaches and spiders, he could not call family and friends, could not meet with his lawyer, could not go outside for fresh air and exercise and was unable to receive visits from friends, family or his lawyer. When phone calls were allowed, they were limited to 20 minutes a call and there were problems with a three-way call detector. The lockdowns caused stress and anxiety. As a result of the COVID-19 pandemic, the jail was shut down and there was the added fear of contracting the virus. The prisoners were not given masks, hand sanitizer, there was no new clothing, bedding or towels and there were no visits with family permitted. He said that his mental health was affected due to the terrible living conditions and there was no access to counselling.
[13] Ms. Mirza submitted a report from the Ontario Human Rights Commission regarding confinement at the Toronto South Detention Centre as well as a report of the Office of the Correctional Investigator.
[14] Finally, copies of Mr. Yogo’s release papers were submitted as exhibits. Mr. Yogo was released on bail on February 18, 2021 subject to a recognizance in the amount of $8,000 with two named sureties and with terms including house arrest and electronic monitoring. Mr. Yogo’s affidavit also described the impact of living under house arrest since February 18, 2021 during which time, he has not been able to work or go to school. This has also caused him to be anxious.
[15] However, he also expressed that he has learned from his situation and is eager to begin reintegration into society.
[16] Ms. Mirza filed letters in support of her client. Royce Ngiindu wrote that he and Mr. Yogo have been friends for many years since they were in middle school and after graduation. He says he has spoken to him since these charges were laid and sees remorse and a “genuine desire to take responsibility for his actions.” Tiffany Lakin wrote that she is also a close friend and talks to Mr. Yogo daily. She also says she has seen remarkable personal growth. Kewir Bennet wrote that she has seen a great change in Mr. Yogo’s mental state over the last two years.
[17] Mr. Yogo provided the court with a statement which he read aloud and it was filed as an exhibit. In it, he expressed remorse for his actions. He has had time to reflect and has considered the consequences of his actions including being on house arrest and how that impacts upon his sister’s family. He is committed to making changes and has enrolled in a private music college. He is also determined to find work.
Positions of the Parties
[18] The Crown seeks a sentence of three years’ imprisonment for the offence of possession of a loaded prohibited weapon less credit for pre-sentence custody. He also asks that a s. 109 order be imposed for life, that an order be made that a sample of Mr. Yogo’s DNA be taken and for an order of forfeiture of the gun. Mr. Merenda submits that the objectives of denunciation and deterrence are paramount. He provided the court with case law which discusses these principles. In R. v. Nur 2015 SCC 15, [2015] S.C.J. No. 15, the Supreme Court concluded that a mandatory minimum sentence imposed by s. 95(2) was unconstitutional but did not interfere with the trial judge’s sentence of 40 months’ imprisonment in light of the objectives of denunciation and deterrence for such offences. Crown counsel also submitted R. v. Morris, 2021 ONCA 680, [2021] O.J. No. 5108 (C.A.), where the court upheld a sentence of two years’ less one day served as a conditional sentence followed by 18 months of probation for possession of a loaded handgun. The court took into account that the offender was young, was a first offender and had mental and physical health issues as well as educational and economic disadvantages influenced by the systemic anti-Black racism that he experienced. In the decision, the court spoke of the gravity of the offence of gun crimes and that sentences must emphasize denunciation and general deterrence: at para 71.
[19] In R. v. Smickle, 2014 ONCA 49, [2014] O.J. No. 258, the offender was convicted of possession of a loaded prohibited firearm contrary to s. 95(1) of the Code. The Court of Appeal held that the offence was serious, that the principles of deterrence and denunciation are paramount but that those principles could be met without re-incarcerating the offender. The court wrote at para. 19 “: …Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders…”
[20] As for mitigating factors, Crown counsel notes that Mr. Yogo is a first offender and no criminal record is being alleged. He has pleaded guilty which is an acknowledgement of guilt and he has taken responsibility for his actions. He has saved valuable court resources. He made a grave mistake by possessing a firearm. However, Mr. Merenda recognizes that Mr. Yogo has rehabilitative potential.
[21] The aggravating factor, however, is that the possession of a loaded restricted weapon is dangerous activity that calls for a significant period of imprisonment. While the gun was not in a public place, it was available and there was some indication of intimidation of threat to the driver of the car by Mr. Yogo.
[22] For these reasons, Mr. Merenda argues that a three-year sentence should be given. He takes the position that Mr. Yogo should be credited for the pre-sentence custody of 115 days from his arrest on October 23, 2020 until his release on strict terms of house arrest on February 18, 2021 at a rate of 1.5:1 in accordance with R. v. Summers [2014] 3 S.C.R. 575 and s. 719.(3.1) of the Code. That would equal 172.5 days. Responding to the defence submission that additional credit should be given for the harsh conditions of pre-sentence custody at the Toronto South Detention Centre, he provided the court with a document dated March 2021 showing the precautions taken regarding the COVID-19 pandemic at the Toronto South Detention Centre both regarding inmates and staff including screening procedures, continuous health assessment, cleaning, masking and protective gear. Crown counsel submits that there was a global pandemic and it was difficult for the world at large during this time of his incarceration. The Solicitor General was taking necessary precautions.
[23] As for the issue of credit for time spent on release, Mr. Yogo was released on bail on February 18, 2021 with terms of house arrest and electronic monitoring. That release order has been in place until the present date with some revision regarding his residence. Crown counsel acknowledges that the terms of release are restrictive. However, in accordance with R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), he asks the court to exercise its discretion and give some additional credit but does not quantify the amount.
[24] Counsel for Mr. Yogo asks the court to impose a sentence of imprisonment served as a conditional sentence followed by a probation period of three years. Mr. Yogo is young, not married and has no children. He has strong family support. Counsel submits that the mitigating factors are that Mr. Yogo entered a guilty plea, he has no criminal record, that he has admitted responsibility for his role and taken responsibility for his actions. He has strong rehabilitative prospects and is supported by family and friends.
[25] Ms. Mirza takes the position that a period of imprisonment served as a conditional sentence is appropriate considering these mitigating factors. She relies on some jurisprudence where conditional sentences were imposed for weapons offences. In R. v. Ansah, [2021] O.J. No. 6246, Baltman J. sentenced the offender who was found guilty of possession of a loaded firearm and possession of 85 grams of fentanyl for the purpose of trafficking to 17 months’ imprisonment after deduction of pre-sentence custody which with credit was 54 months and 5 days. The total sentence was 8 years with 3 years attributed to the possession of a loaded firearm. The offender was young, had no criminal record and a strong support system.
[26] In R. v. Ramos, [2023] O.J. No. 805, Goldstein J. sentenced the offender who pleaded guilty to possession of a loaded prohibited firearm. Ms. Ramos was found guilty of possession of cocaine for the purpose of trafficking following a summary trial. While Justice Goldstein noted that cases involving loaded prohibited firearms require exemplary sentences and sentences in the range of three years for a first offender are the norm, he held that Ms. Ramos’ moral blameworthiness was relatively low, sentenced her to two years less a day concurrent on all counts and ordered that she serve her sentence in the community as a conditional sentence.
[27] R. v. Desmond-Robinson, 2022 ONCA 369 is another case where the court has imposed a conditional sentence for a firearm offence. The Court of Appeal upheld the trial judges’ sentence of 18 months for the firearms offence but reversed the trial judge who declined to order a conditional sentence saying it was outside of the range affirmed by the Court of Appeal. The court wrote at para. 13 that the trial judge erred as the Court of Appeal has recognized that a conditional sentence may be appropriate in certain circumstances: see R. v. Morris, 2021 ONCA 680. As discussed earlier, in Morris, the Court of Appeal held that a sentencing judge should give careful consideration to the imposition of a conditional sentence which can be used to “…ameliorate the longstanding problem of the overincarceration of young Black men” at para. 180.
[28] In R. v. Beharry, 2022 ONSC 4370, the offender was sentenced following receipt of an Enhanced Pre-Sentence Report, to two years less one day served in the community as a conditional sentence for the offences of possession of a firearm without being the holder of a licence, possession while knowingly not being the holder of a licence and occupying a motor vehicle knowing that a firearm was in it; see also R. v. Orrin-Moses, 2022 ONSC 332; and R. v. Stewart, 2022 ONSC 6997.
[29] In R. v. Lewis, [2022] O.J. No. 872, Boswell J. sentenced a 25-year-old offender for possession of a loaded prohibited firearm and possession of cocaine following guilty pleas to two years for the weapons offence to which he was credited for 7 ½ months in custody with two months credit for harsh conditions of incarceration and four months in recognition of stringent bail conditions for the first nine months of release followed by a curfew for 20 months. The sentence was ordered to be served in the community as a conditional sentence. In the case of R. v. Stewart, Copeland J. sentenced an offender found guilty of four counts of possession of a loaded prohibited firearm with an over-capacity magazine to two years less a day served as a conditional sentence followed by two years of probation. Applying the decision of Morris, she found that since the range of sentence was in the upper reformatory range because of the offender’s young age at the time of the offence and that he was a first offender, the sentence should be served as a conditional sentence with terms that would meet the objectives of deterrence and denunciation.
[30] Counsel for Mr. Yogo does not oppose the order pursuant to s. 109, the order for a sample of his DNA and a forfeiture order. She asks the court to credit Mr. Yogo with more than 1.5:1 for time spent in custody under harsh conditions at the Toronto South Detention Centre but does not propose the number. She points out that 44 per cent of the time Mr. Yogo was in custody, he was subject to lockdowns. She also asks the court to consider that Mr. Yogo has been on a restrictive house arrest bail with electronic monitoring for more than 868 days without incident but does not propose a number that should be given for such credit in accordance with Downes.
[31] Ms. Mirza outlined Mr. Yogo’s background and emphasized the effect of separation by his parents upon him. There were financial issues when he resided with his father. He had a very difficult upbringing and experienced negative influences in his neighbourhood. He and others in his community had numerous police interactions about which he became anxious. Counsel emphasized that Mr. Yogo has applied to attend a program in music and looks forward to enhancing his education. In terms of the circumstances of the offence, Mr. Yogo was foolish and had misguided priorities. He was 19 years old at the time. He has had to bear the consequences through incarceration and house arrest and will have a criminal record. He has a supportive family and will remain in Quebec which will keep him away from the negative influences. Ms. Mirza submits that given the guilty plea, that he has saved court resources, that this is his first offence, and that he has experienced the effects of systemic racism, the sentence imposed should be less than two years and served as a conditional sentence.
Analysis and the Law
[32] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
[33] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to consider certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders.
[34] I now turn to the relevant jurisprudence concerning the offence in this case. The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R. v. Danvers, [2005] O.J. No. 3532, 201 O.A.C. 138 at para. 78. In R. v. Nur, 2015 SCC 15, the Supreme Court of Canada also emphasized the objectives of denunciation and deterrence when sentencing persons found in possession of loaded firearms. While striking down the mandatory minimum sentence for possession of a firearm contrary to s. 95(2), the court upheld the sentence of 40 months for a 19-year-old first offender.
[35] In the decision of the Court of Appeal at 2013 ONCA 677, Doherty J.A. wrote at para. 206: “Individuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation” Also in R. v. Marshall, 2015 ONCA 692, the offender was sentenced to 3 1/2 years in custody less credit for pre-sentence custody for possession of a loaded prohibited handgun. He was a young first offender but he possessed the gun at the same time that he was dealing in cocaine.
Decision
[36] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 44.
[37] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Yogo.
[38] Mr. Yogo is 22 years of age and was born on November 20, 2000. He is a Canadian citizen. He grew up in Toronto and moved to Quebec in 2021 to live with his sister when he was released following his arrest. His parents separated when he was eight years old and he lived with his father and half-siblings. He completed high school and enrolled at university in a sociology program but did not complete it. He worked part-time in a sports store from 2018 to 2020 but has been unemployed since the pandemic. He has an interest in music and wants to work in the field. He developed a daily use of cannabis by the end of his teenage years but is not addicted to other drugs. He does not have a criminal record.
[39] He was arrested on these charges on October 27, 2020 and detained at the Toronto South Detention Centre for 115 days. He was released on house arrest bail with electronic monitoring on February 18, 2021. In his affidavit and the materials submitted, Mr. Yogo detailed his incarceration particularly that there were 51 lockdowns due mainly to staff shortages. He has described the impact upon his emotional and mental health during incarceration and on house arrest.
[40] The pre-sentence report was of assistance in outlining Mr. Yogo’s background and current situation. The probation officer described Mr. Yogo as “providing moderate cooperation in the pre-sentence process” as he was late for one of the meetings and she was not certain that he truly intends to stop spending time with his delinquent friends. She said he would benefit from obtaining full-time work or returning to school, that it is preferable he stay with his mother in a more supervised environment and that he could comply with conditions for a community-based program with his mother’s support.
[41] As for his terms of release since his arrest, Mr. Yogo had been granted bail subject to a recognizance with named sureties in the amount of $8,000. He was required to reside with his sureties and remain in his residence unless he had a medical emergency or was in the presence of his surety. He was not to possess any weapons and to take counselling as his sureties directed. Mr. Yogo’s bail was varied on October 26, 2022 to permit a change of address of his sureties. I understand that there have been no issues since his release on bail.
[42] With respect to the circumstances of the offence, the offence was comprised of possession of a fully loaded restricted weapon found in a satchel. While it was not in a public place, the gun was readily available. There were threats made regarding the use of a gun in the interaction between Mr. Yogo and the victim who drove the men from Thunder Bay to Toronto.
[43] In the case at bar, there are many factors in mitigation including that Mr. Yogo pleaded guilty to the charge and has demonstrated remorse, thus taking responsibility for his actions. He has a very supportive family. He has no criminal record. He has complied with bail terms and has shown that he is able to live in the community subject to strict terms.
[44] The aggravating factors are that the fully loaded weapon posed a significant danger and this type of offence is what the Supreme Court of Canada considered to be at the more significant spectrum of firearm related offences. The gun was modified to be fully automatic; Mr. Yogo did not have a firearms licence and the gun was available for use.
[45] There is no question but that a period of imprisonment must be imposed for this offence. However, although aggravating circumstances relating to the offence increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present. Each case must be considered individually: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449. Section 742.1 of the Code provides that if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code, a conditional sentence may be imposed provided it does not fall in one of the listed categories in (b) through (f).
[46] As outlined above, it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (see 718.2(d)) and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders (s. 718.2(e)). Proulx highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
[47] In the case at bar, I have considered the mitigating and aggravating factors which I have outlined above. I have considered the positions of counsel and the jurisprudence they have filed.
[48] I have considered the need for denunciation and deterrence in this case. However, I am persuaded that rehabilitation of the offender is already underway. Permitting Mr. Yogo to serve his sentence in the community and to continue his rehabilitation will allow him to become a productive member of society. In reaching this sentence I am mindful that Mr. Yogo has been on a release to reside with his sureties with house arrest and electronic monitoring. These restrictive terms that have been in place for the last almost three years are a factor I consider in fashioning the appropriate sentence as is discussed in Downes.
[49] The sentence of imprisonment served in the community as a conditional sentence will achieve the objectives of denunciation and deterrence as well as rehabilitation and with restrictive terms will also be a punitive sanction. I am satisfied that serving the sentence in the community meets the objectives of sentencing and also is in the public interest.
[50] Accordingly, I impose a sentence of imprisonment of two years less one day which shall be served in the community as a conditional sentence. I credit Mr. Yogo with having served 177 days of pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers [2014] 3 S.C.R. 575. In R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344, the court held that a sentencing judge may give credit for particularly harsh conditions of pre-sentence custody beyond the 1.5:1 set out in s. 719(3.1) of the Code. In light of the evidence filed of lockdowns during his incarceration and the effect of such conditions on Mr. Yogo, I credit him with an additional 60 days of pre-sentence custody thus having served a total of 237 days of custody.
[51] As for credit in accordance with Downes, I certainly accept that the terms of release over the previous three years which include house arrest and electronic monitoring have been very restrictive of Mr. Yogo’s liberty. However, I consider those conditions of release in fashioning the overall sentence of two years less one day imprisonment which is on the low end of the range for an offence of this kind.
[52] The sentence of two years less one day with credit of 237 days leaves a balance of one year and 127 days remaining to be served. The balance of the sentence of imprisonment served as a conditional sentence shall have the following terms: in addition to the statutory conditions in s. 742.3 which I impose, Mr. Yogo must report to his supervisor forthwith and attend as often as his supervisor deems appropriate. He shall reside at 379 Boulevard L’Amerique Francaise Unit 402, Gatineau, Quebec with his sister Esther Ngolela Bakaly or such address as approved by his supervisor; he shall be under house arrest for the first twelve months of the conditional sentence and shall only leave the house for the purpose of work, to attend school or attend at appointments with his supervisor, to attend counselling, to attend medical appointments for himself or members of his immediate household, to attend the gym and to shop once each week for three hours as permitted in advance by the conditional sentence supervisor and he may leave the house if he is in the company of his sister Esther Ngloala Bakaly. In any event, he shall be in the house between the hours of 10:00 p.m. and 6:00 a.m. each day for seven days each week.
[53] For the remaining months of the conditional sentence, he shall be permitted to leave his residence, but he shall be subject to a curfew between the hours of 10:00 p.m. to 6:00 a.m. each day for seven days each week. The only exceptions are for medical emergencies for himself or a member of his household or with the prior approval of his supervisor. During the entire period of the conditional sentence, he shall attend counselling, educational training or work as directed by his supervisor and sign any necessary releases; he shall abstain from owning, possessing, or carrying a weapon and he shall not apply for or possess a firearm acquisition certificate or gun licence. He shall not have contact direct or indirect with the complainant, Vincent Nkurunziza.
[54] Following this period of imprisonment, Mr. Yogo is placed on probation for two years. In addition to the statutory conditions, he shall reside at an address approved by his probation officer, he shall maintain employment or attend school and provide proof to his probation officer, he shall abstain from owning or possessing any weapon and he shall report to his probation officer forthwith following the conclusion of the conditional sentence and as often as the probation officer deems necessary. He shall attend and participate in any counselling and/or treatment as directed by his probation officer and sign any necessary releases. There will be no contact directly or indirectly with the complainant, Vincent Nkurunziza.
[55] I further make an order under s. 109 prohibiting Mr. Yogo from possessing any weapon as defined by the Criminal Code for life. I also order that Mr. Yogo provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code. Finally, there will be an order of forfeiture of the gun and ammunition.
Himel J. Released: August 2, 2023
