Court File and Parties

COURT FILE NO.: CR-19-2317 DATE: 2023/08/15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Ignace Kayiranga Accused

COUNSEL: D’Arcy Wilson, for the Crown Leo Russomanno for Mr. Kayiranga

HEARD: August 11, 2023 ORAL decision read: August 11, 2023

REASONS FOR SENTENCE - UNLAWFUL ACT MANSLAUGHTER

Somji J

Overview

1Ignace Kayiranga was convicted of unlawful act manslaughter on February 9, 2023, following a judge and jury trial, in relation the death of Austin Simon.

2Counsel for Mr. Kayiranga and the Crown jointly submit that a custodial sentence of 9 ½ years is warranted taking into account pre-trial custody.

3No sentence I impose today will compensate for the loss to the deceased’s family of their loved one Mr. Austin Simon. Below, however, I set out the reasons for why I agree that the joint proposal is a fit and appropriate sentence in the circumstances of this case and this offender based on the principles of sentencing set out in the Criminal Code and governing jurisprudence.

Facts

4Ignace Kayiranga is 37 years of age. He was born in Kigali, Rwanda, on March 16, 1986. He was raised by his mother and did not know his father. He had two siblings. Mr. Kayiranga came to Canada as a refugee in 2011 with the support of his mother. Unfortunately, for most of his time in Canada, he has been battling a serious drug addiction and living on and off the streets in Ontario and Alberta.

5In 2019, Mr. Kayiranga was living in Ottawa taking occasional respite at shelters or his mother’s home. By his own admission, Mr. Kayiranga was a low level drug dealer who trafficked drugs to finance his own addiction. His supplier was Mr. Longo.

6According to Mr. Kayiranga, he and the deceased, Mr. Simon, were friends. They supported each other in times of need. Sadly, that ended on October 31, 2019, when Mr. Kayiranga stabbed Mr. Simon in the neck area resulting in Mr. Simon’s death. The weapon was a small, cheap, and brittle paring knife.

7The events leading up to, during, and after the killing were captured on video surveillance compiled by the police. On the video footage, Mr. Kayiranga and Mr. Longo are first seen together with Mr. Simon at the Salvation Army on George Street. Mr. Simon is seen punching Mr. Kayiranga. After the punch, Mr. Longo and Mr. Kayiranga are seen heading to the Rideau Metro, where Mr. Longo is seen purchasing a knife.

8Mr. Kayiranga testified that while at Rideau Metro he was cutting crack cocaine with his nails after which he himself consumed crack cocaine and fentanyl. He then picked up the knife purchased by Mr. Longo which was lying on the ground and put it in his pocket. The two men left the Rideau Metro at 10:18 pm and went towards the Shepherds of Good Hope.

9At 10:24 pm, Mr. Kayiranga and Mr. Longo are seen on video walking towards Mr. Simon and a 4th gentleman. Mr. Longo crosses over and greets the 4th gentleman leaving Mr. Simon and Mr. Kayiranga together. Mr. Simon puts his arm around Mr. Kayiranga in what appears to be a friendly gesture while also talking to him. Mr. Simon then turns away at which point Mr. Kayiranga is seen on video pulling out the knife taken from Metro Rideau and stabbing Mr. Simon three times in the neck area. Mr. Simon grabs his neck. Mr. Kayiranga charges towards him, backs away, and then turns around and runs in the other direction. Mr. Simon is seen entering the Shepherds of Good Hope looking for help. He runs up the stairs, comes back down, and collapses at the bottom of the stairs. Staff and paramedics are seen attending to Mr. Simon within minutes, but he died very shortly after. The pathologists’ expert report confirmed the cause of death was the stab to the neck.

10Mr. Kayiranga testified at length at trial about his experience as an eight year old in the Rwandan genocide, his experiences following the war, his arrival in Canada, the development of his significant drug addiction, and the events of October 31, 2019. Defence also called expert evidence from Dr. Gojer who opined that Mr. Kayiranga had experienced complex trauma during the Rwandan genocide and had developed a significant drug addiction. Dr. Gojer opined that both Mr. Kayiranga’s complex trauma and drug addiction could have been contributing factors to his conduct on the day in question.

11Mr. Kayiranga testified that he does not recall how his day started on October 31, 2019, except from watching the video footage leaving his mother’s apartment. He does not believe he did anything different that day other than his daily routine. He went to the hoods that he would normally attend – The Salvation Army, Shepherds, and Sandy Hill Community Centre.

12Mr. Kayiranga testified about the amount of drugs he believed he consumed on October 31, 2019, and which he testified would not be unlike other days. These amounts were:

i. Usual routine of crack cocaine every 30 to 40 minutes during the day at approximately 0.1 grams. On that day he said he took 4 to 5 grams. ii. Probably consumed one point of crack cocaine which is 0.1 grams at the Rideau Metro. iii. Injected at least 0.1 grams maybe 0.2 grams of crystal meth (100 to 200 milligrams) at the safe injection site. iv. May have had crystal meth up to 5 x that day. v. Injected fentanyl at the Rideau Metro. He did not specify amount. But he would often consume a point which 0.1 grams.

13Mr. Kayiranga testified that he did not intend to kill Mr. Simon. He also testified that he regretted his actions. He was a drug addict on the street. He ended up hurting somebody who ended up dying.

14Mr. Kayiranga also testified at trial that he did not see Mr. Simon’s family in the courtroom but would otherwise like to say sorry to the deceased’s family and to the community for what he did. He testified: “If I ended up – if I probably never ended up getting drug – if I never used to do drugs, probably I was not gonna hurt him, but I was living that life, you know. I didn’t know I was gonna hurt him, you know. I wanted to hurt him, but never thought about killing him. I never – I never thought he was gonna die. He was a good guy.”

15Following a trial by judge and jury, Mr. Kayiranga was acquitted of murder, but found guilty of unlawful act manslaughter.

Principles of Sentencing

16Section 718 of the Criminal Code sets out the fundamental purpose and objectives of sentencing. The provision states as follows:

718 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: R.S.C., 1985, c. C-46, s. 718

17Denunciation requires that a sentence express society’s condemnation of the offence that was committed: R v Bissonnette, 2022 SCC 23 at para 46. Deterrence has two forms. Specific deterrence is meant to discourage the offender before court, in this case Mr. Kayiranga, from reoffending. On the other hand, general deterrence is intended to discourage conduct of members of the public who might be tempted to engage in the criminal activity for which the offender is convicted: Bissonnette at para 47.

18In imposing sentence, I must also consider the proportionality principle which is that the sentence must reflect the gravity of the offence and the responsibility of the offender: s. 718.1 Code. As stated by the Supreme Court of Canada, proportionality also has a restraining function and serves to guarantee that a sentence is individualized to the person before me, just and appropriate: Bissonnette at para 51.

19Section 718.2(a) to (e) of the Code sets out additional principles which I have also taken into consideration in imposing sentence. In particular, section 718.2(a) states that the court shall consider increasing or reducing the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence, and s. 718.2(b) states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Application of the sentencing principles to this case

20In arriving at a fit sentence I must consider both the circumstances of the offence as well as those of the offender. When I consider the facts of this case along with the circumstances of this offender, I note the following aggravating and mitigating factors.

Aggravating factors

21With respect to the aggravating factors, first, I consider the impact of this crime on the deceased, resulting in the loss of his life, as well as the consequential impact on the victim’s family and friends. The Crown read and filed two victim impact statements (“VIS”).

22The first VIS was from Ms. Christy O who wrote on behalf of her and the deceased’s two young children ages 8 and 9. Ms. O describes the impact on the children of the loss of their father. Mr. Simon’s youngest child is diagnosed with autism and asks for his father every day, where he is, what happened to him, and why he is not coming home. Ms. O’s daughter continues to create holiday cards for her “daddy in heaven” and continues to miss him. Ms. O describes how the children were waiting on November 1, 2019, to have their regular video chat with their dad, a call which never happened and will never happen. She states that Mr. Simon’s death was the saddest most traumatic thing she herself has ever experienced or had to deal with in her life and does not wish such a thing upon any parent.

23The second VIS was from Mr. Leonard Simon, the deceased’s father. He is 70 years of age and lives alone with his two dogs on a farm and in a house built in part by his son who was a skilled carpenter. Mr. Simon talks about the fond memories he has of all his children including the deceased and the heartache he feels having to live out his final years without Mr. Simon. He is saddened not only for himself, but also for his other children who lost their big brother.

24These victim impact statements assist the court in having a better understanding of the deceased as a person, information the court is not always privy to. I am grateful for their insights.

25Even Mr. Kayiranga has recognized the aggravating aspect of this crime. In a letter which he wrote and read into court during the sentencing hearing, Mr. Kayiranga spoke about the good person Mr. Simon was. He states:

“Although I knew Austin for a short amount of time, I am aware that he had a kind spirit, liked to make others happy, and had a smile on his face more often than not. To this day, I find it hard to come to terms that my actions extinguished the good natured light with him. I continue to ask God to protect his soul and comfort his family and friends…”

26A second aggravating factor is the brutality of the attack and the absence of any provocation or aggression on the part of the victim. While there may have been a push by the deceased 20 minutes earlier, Mr. Kayiranga’s response in stabbing Mr. Simon with a knife was unjustifiably excessive in these circumstances. Mr. Simon was completely unarmed, and moreover, engaged in a friendly gesture towards Mr. Kayiranga when he was unexpectedly struck in the neck by a knife concealed in Mr. Kayiranga’s pocket. Mr. Simon’s own expression at the time, as seen on the video, demonstrated the extent of his own shock. Having said this, I recognize that this was an impulsive act of retaliation on the part of Mr. Kayiranga influenced by his drug intoxication. There has been no finding of the requisite intent for murder. Mr. Kayiranga is being sentenced for manslaughter.

27A third aggravating factor is that Mr. Kayiranga failed to assist Mr. Simon in his time of need. Rather he charged at him, and then fled the scene.

28A fourth aggravating factor in this case is Mr. Kayiranga’s prior criminal record. Mr. Kayiranga has 46 convictions spread over eight years, from 2014 to 2019. In addition to property offences such as theft and breach charges, Mr. Kayiranga has a record that includes six assaults, one assault with a weapon, one assault of a peace officer, and one aggravated assault.

29The most egregious aspect of his criminal record is that in May 2017, Mr. Kayiranga was convicted of an aggravated assault as a result of stabbing another individual in Fort McMurray, Alberta. In that instance, the complainant was trying to prevent Mr. Kayiranga and a third person from entering into his apartment. A struggle ensued, and Mr. Kayiranga stabbed the person in the chest with a knife and punctured his lung. Mr. Kayiranga was high on drugs at the time. Just as in this case, Mr. Kayiranga fled the scene. He did turn himself in later. The complainant was hospitalized, but fortunately the assault was not fatal. Mr. Kayiranga was convicted following trial and received a jail term of approximately 180 days, the equivalent of six months.

Mitigating factors

30I turn now to the mitigating factors in sentence. First, I recognize that Mr. Kayiranga experienced complex trauma as a child as he was a victim of the Rwandan genocide, and this complex trauma has likely contributed to his continued opioid addiction and life on the streets since 2011. The information below regarding his experience in Rwanda, his life journey thereafter, and the development of his drug addiction is taken from his testimony at trial.

31Mr. Kayiranga testified that in April 1994, when he would have been approximately eight years of age, a genocide broke out in Rwanda. This was a war between two tribal factions the Hutus and the Tutsis. According to Mr. Kayiranga, the Hutus were resentful of the status of the Tutsis and engaged in a massacre of them throughout parts of Rwanda. Given that Mr. Kayiranga was Tutsi and had very Tutsi features of being tall, skinny, and with a small nose, he testified that he was a target in the war. Concerned for his safety, his mother left the family home and fled to different parts of the country to find shelter.

32Mr. Kayiranga described the atrocities of the war that he both observed and experienced. These included:

• Learning his father was dead in the middle of the street and attending with his mother to bury him;
• Attending a neighbour’s home and seeing the remains of an entire family killed in the living room including their machete wounds;
• Being present in another room while his mother was forced to engage in sexual favours with a member of the army;
• Seeing people shot on the street or hacked with machetes and other crude instruments;
• Observing dead bodies on the street and people having to drive over the bumps on the road caused by the bodies;
• Being separated from his mother and learning she was sexually assaulted by members of the Interahamwe;
• Being sexually assaulted himself by a soldier in the form of sexual intercourse;
• Learning his mother was hit by a machete and seeing photos of the injuries to the back of her heels, a copy of which was filed as an exhibit, and
• Watching people lose limbs and body parts from grenades and landmines.

33After about 5-6 months, the war started to come to an end. Mr. Kayiranga returned home with his mother and sister. Housing was destroyed. There was little money or food. His mother started a job selling objects of art. At one point Mr. Kayiranga decided to go stay with his grandfather and asked his neighbour to take him there. En route, he was sexually assaulted.

34At the age of 12, Mr. Kayiranga went to Uganda to study for two years and stayed at a boarding school. His English improved. He returned to Rwanda where he completed primary school at the age of 14 or 15. He then went to Lycée Kigali for secondary school. Later, his mother arranged for him to go to school in Belgium. He travelled there when he was 16.

35While in Belgium, Mr. Kayiranga started smoking weed. He eventually stopped going to school. He travelled to the UK, but upon being discovered that he was on a visa from Belgium, he was returned there. He failed to renew his papers in Belgium and was held in immigration detention. He tried to go to Canada from there where his mother had relocated, but was told he had to go back to Rwanda. He was deported to Rwanda in 2008. In 2011, his mother arranged for him to come to Canada. He arrived here on/around March 3, 2011, as a permanent resident.

36In Canada, Mr. Kayiranga attended Adult High School. He is two credits short of a high school diploma. He quit school and started working in housekeeping. It was during this time that he started smoking more weed and cigarettes and drinking alcohol. By 2013, he went to Edmonton to see if he could find a better job. There he started using crystal meth (“meth”), drinking heavily, and continuing to smoke weed. In 2013-2014, he was consuming 0.6 to 1 gram of meth a day. Within a few months he became addicted to meth. Over the years he has gone to smoking meth to injecting it which is his preferred method because it gets him high quicker.

37Mr. Kayiranga lived a transient lifestyle at this time. He was staying at shelters and moving to different cities like Grand Prairie and Clairemont. He was going from job to job. He continued to consume meth and then started doing crack cocaine (“crack”). Mr. Kayiranga used his pay cheques to purchase drugs. He would use his first two pay cheques to get drugs and get high. He would then skip out of work. The cycle would repeat itself at the next job. He also collected social welfare both in Alberta and later in Ontario. He would use the funds he received within a day or two for drugs. He would then have to earn more money to feed his habit by selling more drugs which he described as “flipping”. He explained how he would turn a profit on his sale of drugs which would provide him funds to purchase more drugs or keep some of the drugs he was selling for his own consumption.

38At one point Mr. Kayiranga’s mother arranged for his flight, and he returned to Ottawa. He was staying at shelters and sometimes at his mother’s place but it was clear throughout his testimony that she did not support his habits or lifestyle. He continued to use meth and crack in Ottawa. He then returned to Alberta a second time using his Ontario Works cheque to purchase a bus ticket to Red Deer. He held a job for a short time there and then returned to Edmonton.

39In 2015, Mr. Kayiranga moved to Fort McMurray. He worked a variety of jobs there too. His consumption of crack and meth continued. He described himself as someone who was now heavily into drugs. During this period, Mr. Kayiranga had his first experience with fentanyl. He overdosed and was taken to the Fort McMurray hospital. He returned to the streets. He found himself being charged and spending time in jail. He found he was getting into too much trouble, and all the RCMP knew him in town. He became tired of being harassed on the street. In November 2018 he decided to come back to Ottawa.

40Upon returning to Ottawa, Mr. Kayiranga testified that he lived intermittently at his mother’s place and otherwise at the three shelters – Salvation Army, Shepherds of Good Hope, and The Mission. He did not get a job at this time. He lived off Ontario Works and spent his cheque on drugs within two days. Within a few months of returning to Ottawa, he started to do fentanyl. He started by smoking it and then went to injecting because it gave him a greater high.

41It is clear from this evidence presented at trial that Mr. Kayiranga experienced complex trauma as a victim of the Rwandan genocide, and this complex trauma has likely contributed to his serious drug addiction which he developed not long after his arrival in Canada in 2011.

42The second mitigating factor is that Mr. Kayiranga has expressed significant remorse not simply on the day of his sentencing but earlier during the trial. During his testimony and in the presence of the jury, Mr. Kayiranga apologized to the victim’s family some of whom were in court for various parts of the trial.

43At the sentencing hearing, Mr. Kayiranga read into court a letter in which he once again expressed his remorse to the deceased’s family for their loss. He recognized the immensity of the family’s sorrow as a result of his own wrongdoing and apologized to the deceased’s family for his conduct which resulted in the loss of life. Mr. Kayiranga reiterated, as he had testified to at trial, that he had no intention on that day of taking the deceased’s life and that his actions were fueled by drug use and faulty thought processes. He stated that above and beyond his own incarceration, he is burdened by the guilt of all the grief that his hands have caused the family to deal with. He stated that he has still not been able to forgive himself. I find that Mr. Kayiranga’s apology is sincere and have considered his remorse as a mitigating factor in sentence.

44A third mitigating factor is the conditions of confinement Mr. Kayiranga experienced while in remand. Mr. Kayiranga has been in custody since his arrest in, much of which has been in lockdown following the start of the pandemic in March 2020. Counsel have provided records from the jail which indicate that Mr. Kayiranga has been in lockdown or segregation unrelated to any misconduct on his part and attributable to staff shortages and safety concerns resulting from the pandemic for the equivalent of almost one year. In R v Duncan, [2016] O.J. No. 5255, 2016 ONCA 754 and more recently in R v Cunningham, 2023 ONCA 36, the courts have indicated that the harsh conditions of remand are to be taken into consideration as a mitigating factor in sentence. Counsel advise me that they have considered this mitigating factor in arriving at their joint submission proposal on sentence.

45While the principles of denunciation and deterrence must be emphasized in crafting a fit and appropriate sentence, the objective of rehabilitation which is designed to reform offenders with a view to their reintegration into society, must also be considered in fashioning an appropriate sentence: s. 718(1)(d); Bissonnette at para 48.

46In this regard, I note that notwithstanding the difficult conditions in jail during the past three years and the limited availability of programming to offenders in remand and awaiting trial, Mr. Kayiranga has, to his credit, completed 12-13 hours of independent learning sessions on a variety of issues since March 2023. He was granted certificates for completing 12 educational booklets on topics related to substance abuse, anger management, thoughts to action, and managing stress, to name a few subjects.

47I understand that Mr. Kayiranga hopes to avail himself of rehabilitation programming when he attends the penitentiary. In this regard, I strongly recommend to the correctional authorities that Mr. Kayiranga receives to the greatest extent possible, whatever treatment, counselling, programming for substance abuse, and educational or vocational training that is available to him in the institution during his period of incarceration. It is clear from the evidence presented throughout this trial that Mr. Kayiranga has had a serious drug addiction which has been the source of his criminal activity. While the road to rehabilitation for someone with this level of addiction is difficult, it appears that since his incarceration on these charges, Mr. Kayiranga has taken steps to discuss and address his past trauma as well as his addiction issues and should be supported in his rehabilitative journey as much as is possible.

48Finally, counsel has advised me that there will likely be immigration consequences to whatever sentence I impose in this case. Mr. Kayiranga despite his years in Canada is still a permanent resident and there is a possibility, as a result of this conviction, that he will be deported to Rwanda. Consequently, he will be separated from his mother who, it is clear both from his testimony and from her presence in court throughout these proceedings, is a person with whom he is very close and who has continued to support him.

49Section 718.2(b) Code states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In this case, there is no doubt that a lengthy period of custody is warranted. While recognizing that each set of circumstances is unique, the Crown provided me a chart summarizing comparable sentences for manslaughter which indicates that the range of sentence can be anywhere from 8 to 12 years depending on the aggravating and mitigating factors. I finds these cases are a helpful guideline, and I have considered them as part of the sentencing determination.

Conclusion and Sentence

50In conclusion, upon consideration of the aggravating factors including the accused’s prior conviction for aggravated assault, the mitigating factors discussed above, the principles of sentencing including denunciation and deterrence, the sentencing range for offenders who have committed similar offences in similar circumstances, I find that the proposed custodial period of 9 ½ years constitutes a fit and appropriate sentence in the circumstances of this offence and this particular offender.

51Mr. Kayiranga, please stand up. You are ordered to serve a sentence of 9 ½ years in custody taking into account pre-sentence custody. I understand that the pre-sentence custody in this case is 2069 days. When I take that into account, you are ordered to serve an additional 1398 days which is the equivalent of a further 3.8 years in jail.

52You will be serving that time in a federal penitentiary where I hope you will take full advantage of whatever programming is available to you to deal with your past trauma and drug addiction. You are now well aware Mr. Kayiranga of the brutal consequences of your drug addiction. Two men have been stabbed as a result of your drug induced conduct on two different occasions, and one of those men, Mr. Simon, died as a result of your conduct. You are still young Mr. Kayiranga. You still have an opportunity to better yourself. But only you can make those choices and changes in your life.

53In addition, you will be subject to a lifetime firearms’ prohibition pursuant to s. 109 Code and a mandatory DNA Order pursuant to s. 487.04 Code.

54A written copy of this sentencing decision will be provided to counsel. It will form part of the package that goes to the Correctional authorities. Should there be any discrepancy between the written and oral decision, the written decision will prevail.

55Finally, I wish to thank both counsel who are present Mr. Russomanno and Mr. Wilson, as well as Ms. Rudnick and Ms. Hyslop, for your professionalism throughout this trial. All of you provided me with considerable assistance in navigating difficult legal issues and decisions during the course of these legal proceedings for which I am very appreciative.

Somji J.