Court File and Parties

COURT FILE NO.: CR-22-30000521-0000 DATE: 2024-06-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - JOSHUA JOHNSON

Counsel: Levi Vandersteen for the Crown Marcus Bornfreund for Mr. Johnson

HEARD: March 4 and May 21, 2024

REASONS FOR SENTENCE

CORRICK J.

Introduction

[1] Joshua Johnson was tried by me, with a jury, on an indictment alleging that he committed the second-degree murder of Daniel Boima on May 2, 2020. On November 9, 2023, a jury found Mr. Johnson guilty of manslaughter. A sentencing hearing was held on March 4 and May 21, 2024, during which I heard evidence and submissions. Mr. Johnson is before the court today to be sentenced.

Overview of the Facts

[2] On May 2, 2020, at approximately 10:40 p.m., Daniel Boima was shot on a residential street after being robbed of his running shoes, jacket, and backpack. He was 23 years old. He died of a gunshot wound to the torso.

[3] Earlier that evening, Mr. Boima had been spending time with his friend, Tyler Richards. The two men met up with Danielle McLaughlin at around 10:00 p.m. near Don Mills Road and Lawrence Avenue. Mr. Richards called his friend, Mr. Johnson, and asked him to pick the three of them up and drive them to Scarborough where they lived. Mr. Johnson agreed.

[4] Mr. Johnson drove his grey 2005 Mazda to pick up Mr. Boima, Mr. Richards, and Ms. McLaughlin. When he met them, JK, a young person, was in the front passenger seat of the Mazda. Mr. Boima, Mr. Richards, and Ms. McLaughlin got into the back seat of the Mazda. Mr. Johnson began travelling in the direction of Scarborough, but then made an unexpected turn northbound into a residential neighbourhood. He stopped the car and asked Ms. McLaughlin to get out. She complied and walked south to catch a bus home.

[5] Mr. Johnson drove on, ultimately stopping near 56 Tower Drive. He stopped the car behind a parked van. A physical struggle occurred in the car as Mr. Johnson and JK ordered Mr. Boima to relinquish his jacket and coat to them. After trying unsuccessfully to persuade Mr. Boima to flee with him, Mr. Richards fled from the car during the struggle.

[6] The three remaining men, Messrs. Johnson and Boima and JK ended up on the street outside the car, where their voices attracted the attention of four people sitting in the backyard of 56 Tower Drive. Soon thereafter, Mr. Boima was shot in the torso as he stood near the curb of Tower Drive.

[7] After Mr. Boima was shot, one of the men got into the car and started to drive away. The second man ran to the car, opened the rear passenger door, removed Mr. Boima’s running shoes and jacket, and threw them into a field. He then got into the front passenger seat and the car sped off.

Findings of Fact

The Process

[8] Before I consider the appropriate sentence for Mr. Johnson, I must engage in a fact-finding exercise because the factual basis for the jury’s verdict of manslaughter is somewhat unclear. Two routes to manslaughter were left with the jury. The first involved Mr. Johnson acting as the principal. He shot Mr. Boima but without the requisite intent for murder. The second route involved Mr. Johnson as a participant in a common unlawful purpose. He and JK agreed to rob Mr. Boima, JK shot Mr. Boima in the course of the robbery, and Mr. Johnson knew, or a reasonable person would have known, that JK would probably cause bodily harm to Mr. Boima in the course of the robbery. This is the most significant finding I must make as it will inform the gravity of this offence and Mr. Johnson’s moral blameworthiness.

[9] Section 724(2) of the Criminal Code, R.S.C., 1985, c. C-46 requires me to accept as proven all facts, express or implied, that are essential to the jury’s verdict and allows me to find as proven any other relevant facts that were disclosed by the evidence at the trial. Rather than trying to follow the logical process of the jury, I am required to engage in my own independent fact-finding exercise: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18; R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 105. Aggravating facts that are not express or implied in the jury’s verdict must be proven beyond a reasonable doubt: Criminal Code, s. 724(3)(e).

The Positions of the Parties

[10] Mr. Vandersteen, Crown counsel, submits that the evidence establishes beyond a reasonable doubt that Mr. Johnson shot Mr. Boima. He bases this submission on three areas of evidence.

[11] First, the evidence of the eyewitness, Derek Beattie, that the person who shot Mr. Boima was the driver of the car, which fled the scene, and the evidence shows that Mr. Johnson was the driver. Second, the descriptions of the driver and passenger provided by the witnesses. Third, Mr. Johnson’s statement to Officer McGinn on June 19, 2020.

[12] Mr. Vandersteen also submits that the evidence establishes the following aggravating facts beyond a reasonable doubt:

1. Mr. Johnson planned the robbery of Mr. Boima.
2. Mr. Johnson knew that JK was bringing a firearm to the robbery.
3. Mr. Boima had no weapons.
4. Mr. Boima was apologizing and essentially pleading for his life when he was shot.
5. The shooting occurred in a residential area.
6. The killing happened in the course of a robbery.
7. Mr. Johnson took significant steps to cover up the truth about Mr. Boima’s death.

[13] Mr. Bornfreund, on behalf of Mr. Johnson, submits that that the court is bound to find the facts most favourable to Mr. Johnson when more than one basis for the jury’s verdict is available. In his submission, there is an absence of credible and reliable evidence about the events leading up to the shooting of Mr. Boima. The evidence does not support a finding that Mr. Johnson shot Mr. Boima or was a party to the intentional infliction of harm or death to Mr. Boima.

Evidence

[14] Tyler Richards testified that Mr. Johnson was the driver of the car who picked him, Ms. McLaughlin, and Mr. Boima up on May 2, 2020 and drove them towards Tower Drive. Richards was not expecting Mr. Johnson to arrive with anyone else. The cell phone records filed at the trial confirm several calls between Mr. Richards and Mr. Johnson that evening, followed by calls between Mr. Johnson and JK, and then again between Mr. Richards and Mr. Johnson.

[15] Ms. McLaughlin did not know either Mr. Johnson or JK. She described the driver of the car as taller, heavier, and bigger than the passenger.

[16] Mr. Boima was shot near a home at 56 Tower Drive. Four people were sitting in the backyard of that home when the shooting occurred. They each witnessed the events from different perspectives.

[17] Wendy Keefe, Sherry Hall, and Patrick Grace each testified that they heard two shots that night. Derek Beattie, who hoisted himself up on the fence to look over the top and witnessed the shooting, was inconsistent about whether he heard one or two shots. In chief, he testified that the two shots he heard sounded the same. In cross-examination, he testified that he did not hear a second shot but saw a man point a small firearm at Mr. Boima and then saw Mr. Boima hunch over and collapse. Ms. Hall and Mr. Grace testified that they heard the second shot while Mr. Beattie was hoisted up on the fence. Mr. Grace testified that after he heard the second shot, Mr. Beattie told him that someone had been shot and to call 9-1-1.

[18] Mr. Beattie testified that right after the shooting, he saw the shooter jump into the driver’s side of a car that had parked behind Mr. Grace’s van on Brian Drive and proceed east on Brian Drive at 30 or 40 kph. The second man, who was present at the shooting, called out to the driver something about shoes. The driver slowed down, the second man opened the back passenger door, grabbed something, and threw it into a nearby hydro field. The second man then got into the front passenger seat and the car turned left onto Tower Drive. Mr. Beattie testified that the driver was in control of the car.

[19] Mr. Grace testified that after he called 9-1-1, he left his backyard, and saw the car that had been parked behind his van turn left on Tower Drive and proceed at a high rate of speed. According to Mr. Grace, the driver had no difficulty driving the car. Ms. Hall also saw the car speed away very quickly and turn left on Tower Drive. She too testified that the driver was in control.

[20] Ms. Keefe was looking out the window from the second floor of her home at 56 Tower Drive when she saw the car leave its parking spot behind the van. She testified that the car had to reverse a bit before pulling out into the street. Once it pulled out, it moved rapidly towards Tower Drive. She lost sight of it at that point.

[21] Video surveillance cameras captured the car as it left the area of Tower Drive. It eventually travelled east on Manhattan Drive where Owen and Casey Donaghey-Arrowsmith saw it go through a red light at Warden Avenue at a high rate of speed. The car travelled onto the curb at the northeast corner of Warden Avenue and Manhattan Drive to avoid striking a car travelling southbound on Warden through a green light. After striking the curb, the car straightened and proceeded eastbound on Manhattan Drive. Mr. Donaghey-Arrowsmith testified that he saw the car slow to turn left on Ellington. He estimated the speed of the car as 100 kph.

[22] The video surveillance footage shows the car being driven at a high rate of speed by a proficient driver, using turn signals, and accelerating and decelerating appropriately.

[23] Mr. Beattie described the man who shot Mr. Boima as a Black man, 5'11½" in height with black hair in corn rows tight against his scalp. He described the man who jumped into the passenger seat as a Black man, shorter in height than the other man, about 5'7" or 5'8". His hair was puffy, not right against his scalp. Mr. Grace described the man who shot Mr. Boima as in his early twenties, 6' tall with a medium build. Ms. Hall described the passenger as 5'10" in height, thin and in good shape. Ms. Keefe described the person she saw dropping things in the field as a Black man, tall, slim, and lanky.

[24] Detective McGinn testified that in the summer of 2020, Mr. Johnson was heavier and taller than JK. Mr. Johnson was 5'11". JK was 5'7". He described Mr. Johnson as having a medium build and JK as having a medium thin build.

[25] Photographs taken from JK’s phone show that JK’s hairstyle in May 2020 was as described by Mr. Beattie. There is no evidence about Mr. Johnson’s hairstyle on May 2, 2020.

[26] It was an admitted fact at trial that Mr. Johnson owned the Mazda that was involved in this shooting. The MTO records filed at trial show that Mr. Johnson’s licence plates were registered to the car in question on January 13, 2020 and were transferred to a Dodge Dart on June 4, 2020, following the shooting. On June 13, 2020, Mr. Johnson told Detective McGinn that he had owned a four-door Mazda prior to owning the Dodge Dart but had sold it. At the outset of the interview, he told the officer that he was the only person who drove the car. Later in the statement, when Mr. Johnson described his fabricated version of the events of May 2, 2020, he told Detective McGinn that he was the only person who drove his car that night.

[27] Mr. Johnson had been a licensed driver since September 14, 2015, when he was 16 years old. This was established by MTO records. JK, who was 16 years old on May 2, 2020, had never been licensed to drive. He testified that he had only driven a car in a parking lot.

Analysis

[28] I do not accept Mr. Bornfreund’s submission that Mr. Johnson is entitled to the most favourable interpretation of the jury’s path to conviction. This proposition was rejected specifically by the Ontario Court of Appeal in R. v. S.P., 2024 ONCA 211, at para. 38, R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 56, and R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at para. 59. It is also contrary to the approach to fact-finding set down by the Supreme Court of Canada in Ferguson.

[29] There is no question that Mr. Richards and JK were problematic witnesses. Mr. Richards was reluctant to identify Mr. Johnson, referring to him throughout his evidence as the driver. Throughout most of his evidence, he would not identify the weapon used to rob Mr. Boima as a gun, referring to it as a weapon. He refused to keep his voice up so that he could be heard in the courtroom, and he often spoke in riddles. He agreed that he would face consequences in his neighbourhood for testifying in this case.

[30] JK claimed to have no memory of the events of May 2, 2020. He claimed not to recognize himself in photographs downloaded from his cell phone. He said that he was not sure that Mr. Johnson was his friend. However, he agreed that when he testified at the preliminary hearing in this matter, he was telling the truth. At that time, he testified that he and Mr. Johnson were close friends.

[31] JK did however admit that he did not know how to drive a car. He did not know how to turn the headlights of a car on. He did not know where the gear shift was or how to activate a turn signal light. He was shown the video compilation of the Mazda fleeing the scene of the shooting at a high rate of speed. He testified that he did not think that he could have been driving that car.

[32] I accept Mr. Richards’ evidence that Mr. Johnson picked up him, Mr. Boima, and Ms. McLaughlin on May 2, 2020 in his car. JK was in the passenger seat. Mr. Johnson drove towards Tower Drive, stopping to ask Ms. McLaughlin to get out of the car. It is consistent with Ms. McLaughlin’s evidence that the driver was taller and bigger than the passenger and it makes sense in the context of the rest of the evidence, including Mr. Richards calling him and asking him for a ride and the cell phone records showing calls between Mr. Richards and Mr. Johnson and Mr. Johnson and JK.

[33] I also accept JK’s evidence that he does not know how to drive a car. He was only 16 years old on May 2, 2020, had never been licensed, and had never driven a car on the road.

[34] After considering all of the evidence carefully, I accept Mr. Beattie’s evidence that he witnessed the shot that killed Mr. Boima and saw the person who shot Mr. Boima drive the car away from the scene. Mr. Beattie had a clear view of the event. His description of the driver’s and passenger’s heights and the passenger’s hair is consistent with Mr. Johnson being the shooter and the driver and JK being the passenger. His evidence is also consistent with the way the car was driven away from the scene.

[35] I am satisfied beyond a reasonable doubt that it was Mr. Johnson who fatally shot Mr. Boima.

[36] I am also satisfied beyond a reasonable doubt that Mr. Johnson had planned to rob Mr. Boima and enlisted JK to assist him in that regard. Mr. Richards testified that he was expecting Mr. Johnson to arrive by himself. The cell phone records establish that Mr. Johnson contacted JK after Mr. Richards called him to ask for a ride. I accept Mr. Richards’ evidence that Mr. Johnson spoke to him about robbing Mr. Boima when Mr. Richards called him.

[37] I am not satisfied beyond a reasonable doubt that Mr. Johnson called JK to help him with the robbery because he knew that JK had a firearm or that Mr. Johnson knew that JK was going to bring a firearm with him to the robbery. The evidence establishes that Mr. Johnson knew that JK brought a firearm with him because Mr. Johnson was the first person to brandish it, but the evidence falls short of establishing that Mr. Johnson knew in advance of picking JK up that he would bring a firearm.

Positions of the Parties on Sentence

[38] When counsel made their submissions on the appropriate sentence, they did not know my finding on whether Mr. Johnson was the principal offender in the shooting of Mr. Boima or a party to a common unlawful purpose.

[39] Mr. Vandersteen submitted that if the court were to find that Mr. Johnson was the principal, this is a case of “near murder” and the appropriate range of sentence is between 12 and 15 years in prison. He also seeks an order prohibiting Mr. Johnson for possessing any weapon for life, a DNA databank order and an order prohibiting Mr. Johnson from communicating with any of Mr. Boima’s family members while he is serving his sentence.

[40] Mr. Bornfreund argued that the court should find that Mr. Johnson was a party to a common unlawful purpose and not the principal. In those circumstances, Mr. Bornfreund submitted that the appropriate sentence was between seven and eight years in prison. Mr. Bornfreund agreed with the ancillary orders sought by the Crown.

[41] Counsel agreed that Mr. Johnson is entitled to credit for the time he has served in pre-sentence custody at the rate of 1.5 days for each day served in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

[42] Mr. Bornfreund seeks enhanced credit for the unduly harsh conditions of Mr. Johnson’s pre-sentence custody pursuant to the decision in R. v. Duncan, 2016 ONCA 754. Mr. Vandersteen submits that little, if any, enhanced credit should be granted to Mr. Johnson based on the record before the court.

Governing Sentencing Principles

[43] In determining the fit sentence for Mr. Johnson, I am governed by the sentencing principles set out in the Criminal Code.

[44] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sentences with objectives that include denunciation, deterrence, rehabilitation, the promotion of responsibility, and the acknowledgement of the harm that criminal activity does to victims and to our community. The sentence that I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[45] Furthermore, the sentence should be increased or reduced to account for any aggravating or mitigating circumstances related to the offence or the offender. It should also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Victim Impact

[46] Mr. Boima’s father, stepmother, aunt, and best friend provided statements outlining the devastating impact Mr. Boima’s death has had on their lives. Mr. Boima’s family lost not only a son, brother, cousin, nephew, and friend, but also a protector and guardian of his two siblings, both of whom have disabilities and will require special care for their entire lives.

[47] Mr. Boima’s father spoke of fleeing war-torn West Africa and living in a refugee camp before bringing Mr. Boima and his brother to Canada, a place of safety. His happiness has evaporated; his relationships with others are strained, and his family’s financial situation has become precarious because his emotional well-being has caused him to lose time off work, for which he is not paid.

[48] Maryann Boima, Mr. Boima’s stepmother described the negative changes in her relationship with her husband as a result of his sadness and difficulties coping with Mr. Boima’s death. She also spoke of her fears for the future of her seven-year-old daughter, who is non-verbal, and requires a great deal of care. Mr. Boima had found a way to communicate with her and assisted his stepmother with her daily care. That is now gone. She and her husband have lost their sense of security, and now fear for the safety of their other son.

[49] Mr. Boima’s aunt also spoke of the fear she has for the safety of her own son, and her anger and sadness over the loss of Mr. Boima.

[50] Overall, the statements express the profound sense of loss and fear that now grips Mr. Boima’s loved ones.

Mr. Johnson’s Personal Circumstances

[51] Mr. Johnson is 24 years old. He was 20 years old when he committed this offence. He was born in the Bahamas and came to Canada with his parents and siblings when he was ten. He is a Canadian citizen. He and his brother and sister were raised in a loving, stable home by their mother and father in the Orton Park area of east Scarborough. Since his arrest in June 2020, his family has relocated to Belleville, Ontario where Mr. Johnson intends to reside when he is released from prison.

[52] Mr. Johnson graduated from high school. He took some college courses but did not complete them. He has not had steady employment. He told the writer of the pre-sentence report that he wanted to run his own business because he did not like working for others.

[53] While in pre-sentence custody, Mr. Johnson completed 32 different courses related to bible study and life skills. Certificates of completion of those courses have been filed as Exhibit 3.

[54] Mr. Johnson has no criminal record. He has no issues with drugs or alcohol. His involvement in this very serious offence shocked his mother, who reported to the writer of the pre-sentence report that this behaviour was not in keeping with the way that Mr. Johnson was raised. Mr. Johnson’s mother reported that Mr. Johnson is involved with a negative peer group, something that started when he was in his teens. Mr. Johnson himself acknowledged that his friends negatively influenced him, yet he remained in contact with them.

[55] There does not appear to be anything in Mr. Johnson’s background to explain his violent behaviour on May 2, 2020. He reported to the pre-sentence report writer that he is quick to anger when he is bothered, annoyed, or ignored. He admitted being involved in several altercations while in pre-sentence custody and said that he resorts to violence to “make a statement”. When anger management was suggested to him, he did not feel that his anger was “that bad”. Mr. Johnson may wish to revisit this given the issues he has had with aggressive, assaultive, and threatening behaviour while in pre-sentence custody as evidenced by the numerous misconduct reports from the detention centre filed in Exhibit 5.

Range of Sentence

[56] The maximum sentence for manslaughter is life imprisonment: Criminal Code, s. 236(b). Where a firearm is used in the commission of a manslaughter, the minimum sentence is four years in prison: Criminal Code, s. 236(a).

[57] There is a wide variation in the sentences imposed for manslaughter. This reflects the broad range of circumstances that can give rise to a manslaughter conviction. The circumstances of the offence and the offender’s moral culpability vary greatly. Manslaughter can range from an unintentional killing to a killing that approaches murder.

[58] To determine the appropriate sentence, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I am mindful, however, of Lamer C.J.C.’s caution that “the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction:” R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92.

[59] The circumstances of any case, including this one, can be readily distinguished from any other case. Sentencing is not a precise science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. Despite this, prior decisions assist in determining the appropriate range of sentence and the principles that must guide my decision.

[60] Counsel have provided several decisions in support of their positions on sentence, which I have carefully reviewed. They illustrate the individualized approach that is taken by sentencing judges in manslaughter cases. In R. v. Kerr, 2023 ONSC 3892, at para. 29, Schreck J. reviewed several Ontario Court of Appeal decisions and decisions of this court, and suggested that there are three broad ranges of sentence for the offence of manslaughter as follows:

• Six to eight years in less serious cases where, for example, the accused was not aware of a firearm possessed by a co-accused or where the accused was a youthful first offender with significant rehabilitative potential: R. v. Turner, 2019 ONSC 5435, R. v. Sahal, 2016 ONSC 6864; Kwakye, at paras. 5-6.
• Eight to 12 years in cases where some significant aggravating factors are present, such as the use of a firearm or brutal violence against a vulnerable elderly victim: R. v. Devaney (2006), 213 C.C.C. (3d) 264 (Ont. C.A.), at para. 14; R. v. Clarke (2013), 172 O.A.C. 133 (C.A.); R. v. Cleyndert, [2006] O.J. No. 4038 (C.A.), at para. 12.
• Twelve to 15 years in cases where the most serious aggravating factors are present, such as a significant criminal record, planned violence, active participation in brandishing or discharging firearms or a planned home invasion involving beating of the victims: R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 81-83; R. v. Tahir, 2016 ONCA 136, at para. 2, aff’g [2012] O.J. No. 6449 (S.C.J.); R. v. Atherley, 2009 ONCA 195, at para. 4.

[61] Sentencing ranges are helpful guides for sentencing judges, but they are not “straitjackets” depriving judges of their ability to impose sentences that reflect both the circumstances of the offence and of the offender: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[62] I turn now to consider the aggravating and mitigating circumstances of this case.

Mitigating Circumstances

[63] Mr. Johnson is 24 years old. He was 20 years old when he committed this offence. He has a loving and supportive family. This family support will be vital to his rehabilitation.

[64] He has no criminal record, and no problems with drugs or alcohol. He has graduated from high school. He has the potential to be a productive member of society.

[65] Mr. Johnson has participated and successfully completed all available courses while in pre-sentence custody to assist him to lead a pro-social life when he is released.

[66] He has accepted responsibility for this offence and expressed his feelings of empathy with Mr. Boima’s family.

[67] I have also considered the conditions of Mr. Johnson’s pre-sentence custody in mitigation of his sentence in accordance with the decision in R. v. Marshall, 2021 ONCA 344. I will discuss this in more detail when I deal with the issue of pre-sentence custody.

[68] Mr. Bornfreund submits that I should take judicial notice of and consider the factors set out in the decision of R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641 in mitigation of Mr. Johnson’s sentence.

[69] Many years before the Morris decision, Ontario courts recognized that, “racism, and in particular anti-Black racism, is a part of our community’s psyche:” R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.), at para. 54. I accept that systemic racism in Toronto exists, and that Mr. Johnson has probably been affected by it in some way throughout his life.

[70] Having said that, there must be “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.” Without such a connection, mitigation “becomes a discount based on the offender’s colour.” Our law does not recognize such a discount: Morris, at para. 97.

[71] There must be some link between Mr. Johnson’s experience with systemic racism and the offence he has committed to mitigate his sentence. The link need not be causal, but there must be some connection to mitigate Mr. Johnson’s moral culpability. On the record before the court, this connection is absent.

Aggravating Circumstances

[72] I find the following to be the aggravating circumstances of this case.

[73] Mr. Johnson, together with JK, planned to rob Mr. Boima of his running shoes and jacket. That is why JK accompanied Mr. Johnson in his car to pick up Mr. Richards, Mr. Boima and Ms. McLaughlin. It is also the reason Mr. Johnson asked Ms. McLaughlin to get out of the car before the robbery took place.

[74] Although I have found that the evidence falls short of establishing that Mr. Johnson knew that JK was bringing a firearm to the robbery before he picked JK up, he was certainly aware of the firearm’s presence in the car. He was the first person to brandish it.

[75] The shooting of Mr. Boima occurred in a residential neighbourhood, right beside the backyard of a home where residents were enjoying the evening.

[76] Mr. Boima was unarmed. Mr. Johnson was not defending himself or anyone else. Mr. Boima had done nothing to provoke Mr. Johnson other than try to prevent him and JK from stealing his belongings.

[77] Mr. Johnson mercilessly shot Mr. Boima while Mr. Boima was apologizing.

[78] Following the shooting, Mr. Johnson fabricated a story about how Mr. Boima was shot. When his attempts to contact Mr. Richards failed, he asked a third party to encourage Mr. Richards to provide this false narrative to the police.

[79] The death of Mr. Boima has had a devastating and enduring impact on his family and friends.

Pre-sentence Custody

[80] Counsel agree that Mr. Johnson should be credited at the rate of 1.5:1 for each day he has spent in pre-sentence custody. He has been in custody at the Toronto East Detention Centre since June 19, 2020, just shy of four years.

[81] In some circumstances, harsh pre-sentence incarceration conditions can be relevant to the determination of an appropriate sentence: Duncan, at para. 6. Mr. Johnson has been incarcerated at the Toronto East Detention Centre since June 19, 2020. Institutional records show that throughout that time, Mr. Johnson was often subjected to lockdowns because of staff shortages and COVID droplet precautions. He was only offered access to fresh air in an outdoor yard for a small fraction of the time he should have been. An Incarceration Summary prepared by the Security Manager of the Toronto East Detention Centre indicates that the institution tries to offer fresh air or outside exercise to inmates every day, although this often does not occur. On average, inmates in that institution were offered fresh air 32% of the time. Mr. Johnson was offered fresh air 11.52% of the time.

[82] Mr. Vandersteen submits that the especially punitive conditions of Mr. Johnson’s pre-sentence custody should mitigate his sentence very little because they were the result of Mr. Johnson’s misconduct. For example, Mr. Johnson was placed in segregation in the “Stabilization Unit” several times for a total of 51 days as a result of being found guilty of misconduct. However, even inmates who are segregated for discipline are entitled to a minimum of two hours each day out of their cells to shower or use the telephone. Of the 51 days that Mr. Johnson was housed in segregation, he did not receive the minimum two hours out of his cell on 45 days.

[83] Mr. Johnson was also entitled to a minimum of two hours out of his cell when he was in the maximum-security unit for 268 days. He was on lockdown for 76 days.

[84] While in general population, Mr. Johnson was also subject to partial lockdowns for 133 days and full lockdowns for five days due to staff shortages. The institution was also on full lockdown for six days due to a security issue. During full lockdowns, inmates have no access to showers.

[85] Much of Mr. Johnson’s time in pre-sentence custody was spent during the pandemic. The COVID-19 pandemic adversely affected prison conditions. Prisons became harsher places. Inmates are required to live in congregate settings and there is little they can do to keep themselves safe from illness. The unit in which Mr. Johnson was housed was placed under a COVID droplet protocol for 35 days, during which he was permitted to leave his cell for only 30 minutes each day.

[86] I am satisfied that Mr. Johnson experienced particularly harsh pre-sentence incarceration conditions. I recognize that he was sometimes housed in harsher conditions as a result of his own misconduct, but those harsh conditions were even harsher as a result of the lockdowns he was subjected to. It is to be remembered that for the majority of the time he has been in custody, Mr. Johnson was presumed innocent.

[87] While I do not intend to quantify its effect, this is a significant mitigating factor. I have weighed it along with the other mitigating and aggravating circumstances: see Marshall, at para. 52.

Determination of a Fit Sentence

[88] Mr. Johnson is a young man with no criminal record who has committed a very serious offence. As Mr. Johnson said in his remarks to the court, “no one should ever have to bury a loved one due to gun violence.” Yet, his actions on May 2, 2020 forced Mr. Boima’s family to do exactly that.

[89] Determining the fit sentence requires careful consideration of the sentencing objectives of deterrence, denunciation and, given Mr. Johnson’s age, rehabilitation. I accept that Mr. Johnson has rehabilitative potential. He has strong family support, no substance abuse issues, and has accepted responsibility for this offence. Although rehabilitation is an important objective, in manslaughter cases, the primary sentencing objectives are deterrence and denunciation: R. v. Kwakye, 2015 ONCA 108, at para. 3.

[90] I have considered the principle of restraint set out in ss. 718.2 (d) and (e) of the Criminal Code. The restraint principle operates both when deciding if imprisonment is appropriate, and if it is, determining the length of the sentence: Morris, at para. 112. In the decision of R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para. 3, Rosenberg J. A. stated that “a first penitentiary sentence should be as short as possible.”

[91] This was a callous and senseless crime. Mr. Johnson shot Mr. Boima after he and JK had stolen the shoes off his feet and the coat off his back. The level of violence is inexplicable. Mr. Johnson’s conduct is deserving of a strong denunciatory sentence.

[92] In my view, the appropriate sentence in this case is 10 years in prison. This sentence accounts for the aggravating and mitigating circumstances and meets the objectives of deterrence and denunciation, while not ignoring rehabilitation.

[93] Mr. Johnson has been in custody just shy of four years. He will be given credit for six years, leaving a sentence of four years to be served.

The Sentence Imposed

[94] Mr. Johnson is sentenced to 10 years in prison for the offence of manslaughter. He will be given credit of six years for his pre-sentence custody. He must serve a further four years in prison.

[95] In addition, Mr. Johnson will be subject to a mandatory weapons prohibition order pursuant to s. 109(3) of the Criminal Code for life.

[96] Manslaughter is a “primary designated offence” within the meaning of s. 487.04 of the Criminal Code. Accordingly, a DNA databank order is mandatory. I direct that Mr. Johnson provide a sample of his DNA.

[97] Finally, pursuant to s. 743.21 of the Criminal Code, Mr. Johnson is prohibited from communicating directly or indirectly with any member of Mr. Boima’s family while in custody.

Corrick J. Released: June 7, 2024