Court File and Parties

FILE NO.: CR-24-10000665-0000 DATE: 20241212

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - O’SHANE MITCHELL

Counsel: Karen Simone and Mark Rieger, for the Crown Gary Grill, Counsel for O’Shane Mitchell

HEARD: November 13, 2024

KELLY J.

Reasons for Sentence

[1] Mr. O’Shane Mitchell pleaded guilty and was convicted of three counts of reckless discharge of a firearm [^1] and one count of possession of a loaded firearm. [^2]

[2] The convictions arise from a shooting incident committed in a bachelor apartment located in Parkdale, a community in the City of Toronto. Mr. Mitchell attended at the apartment with a firearm. During an altercation, one of the occupants, Mr. Abel Gime, was shot by Mr. Mitchell multiple times and died. Three others were shot and wounded.

[3] Crown counsel accepts that Mr. Mitchell was acting in self-defence when he shot and killed Mr. Gime. Crown counsel submits and Mr. Mitchell agrees that he was reckless as to the life and safety of Ms. Angela Batisse, Mr. Jersey Delgado and Mr. Zakareeya Khan when the firearm was intentionally discharged during the incident and bullets hit them.

[4] Crown counsel seeks a global sentence of nine to ten years’ imprisonment for Mr. Mitchell. Counsel for Mr. Mitchell submits that the appropriate sentence is five years. All counsel agree that Mr. Mitchell should receive credit for time already served. They also agree on the imposition of ancillary orders: a DNA order; a s. 109 order for 20 years; and a no contact order, pursuant to s. 743.21 of the Criminal Code. Those orders are granted.

[5] For the reasons set out below, I find that the appropriate sentence for Mr. Mitchell is a global one of imprisonment of six years (72 months), less credit of three years (36 months), for a sentence of three years (36 months) left to serve.

The Facts

[6] The facts giving rise to the pleas were provided by way of an Agreed Statement of Facts. It provides as follows:

a. On November 15, 2022, Mr. Mitchell and Mr. Zakareeya Khan attended at Apartment 301, 245 Dunn Avenue in the City of Toronto. They were to meet with Mr. Mark Medas. Mr. Medas lived with Ms. Mary Pinheiro. At the time of the incident, Ms. Batisse was in the apartment as were three dogs.

b. Mr. Mitchell was a stranger to the occupants of the apartment, but Mr. Khan was not. Mr. Khan had lived in the Parkdale community for many years. He knew Mr. Medas and Ms. Pinheiro. Although Mr. Khan was friends with both, he had not seen them for several years.

c. Mr. Khan had had a disagreement involving criminality with another local man and former friend, Mr. Delgado. Mr. Delgado still lived in Parkdale. Although Mr. Delgado was well known to both Mr. Medas and Ms. Pinheiro, he was not welcome in their apartment.

d. While Mr. Mitchell and Mr. Khan were speaking to the occupants of apartment 301, Mr. Delgado arrived, uninvited. He was in the company of Mr. Gime.

e. Mr. Delgado immediately became aggressive when he saw Mr. Khan. He confronted both Mr. Khan and Mr. Mitchell.

f. Mr. Gime also became aggressive. When Ms. Pinheiro asked them to take their disagreement outside, Mr. Gime told her to “Shut the fuck up bitch.”

g. Mr. Delgado repeatedly asked Mr. Khan, “Do you remember me?” and removed his COVID mask to show Mr. Khan his face. He then said to Mr. Mitchell, “Where are you from? Why are you here?”. He also asked Mr. Mitchell, repeatedly, “What do you have in your pocket?”

h. Both Mr. Mitchell and Mr. Khan were scared. Mr. Khan said to Mr. Delgado, “It wasn’t me. It wasn’t me. I didn’t have anything to do with it.” Mr. Delgado responded, “Oh. Okay. We’ll see about that.” Mr. Delgado indicated that no one was to leave the apartment.

i. Apartment 301 is very small. It is a bachelor sized apartment with a separate kitchen at the back. There is one door from the lobby. There was little room to move freely as there were clothing racks and other furniture being used to separate areas for living and sleeping. There was a narrow walkway that led from the front door to the kitchen. It was cluttered. [^3]

j. At one point, Mr. Delgado told Mr. Gime to “call the man”. Mr. Gime responded saying, “He’s already on his way.” Shortly thereafter, another young man, Mr. Daniel Okuya, entered the apartment. He then stood in the hallway behind Mr. Gime and Mr. Delgado. He said nothing.

k. Suddenly, Mr. Delgado rushed at Mr. Khan. Mr. Gime rushed at Mr. Mitchell.

l. Mr. Mitchell had been clutching a firearm in his pocket. He took it out immediately. He began discharging the firearm repeatedly to defend himself. It is Mr. Mitchell’s position that he was acting in self-defence when he discharged the firearm in response to Mr. Gime’s aggression. Despite his intended use in defending himself, three others were shot due to his recklessness.

m. Mr. Gime was shot multiple times and eventually succumbed to his injuries. The injuries suffered by the three others may be summarized as follows:

Ms. Battisse: She suffered a single gunshot wound to her chest. She was treated at the hospital and released within 24 hours. Because the bullet “went in and out”, she did not require surgery. She did not suffer any lasting effects.

Mr. Delgado: He suffered a single gunshot wound to his back. He was treated at the hospital.

Mr. Khan: He was shot in the elbow. He was treated at the hospital.

n. Mr. Mitchell and Mr. Khan ran out of the apartment and fled the scene. Mr. Mitchell dropped Mr. Khan off at the hospital.

o. Mr. Mitchell disposed of the firearm in a dumpster. He did not have a license for the firearm.

p. No weapons were found in the apartment. No weapons were found on Mr. Gime or on any other person present.

[7] These are the facts upon which Mr. Mitchell is being sentenced.

Victim Impact Statements

[8] No victim impact statements were filed. The family of Mr. Gime was present during the plea and sentencing submissions.

Background of Mr. Mitchell

[9] The following is a summary of Mr. Mitchell’s background that was provided by way of an affidavit and counsel’s submissions:

a. Mr. Mitchell is currently 29 years of age. He was 27 years of age at the time of this incident. He was born on July 31, 1995.

b. Mr. Mitchell was born in Scarborough, Ontario. At age three, he moved with his parents to Martha Eaton Way, in the North York area of Toronto.

c. Mr. Mitchell has one brother who is ten years younger. He lives with autism.

d. Mr. Mitchell’s parents separated in 2015-2016. His mother moved to Mississauga thereafter.

e. Mr. Mitchell has had a difficult relationship with his father. However, his father did send an email to his lawyer saying that he loved his son, misses him and that his son’s current circumstances are breaking his heart.

f. Mr. Mitchell is not married although he is involved in a serious relationship. They have remained committed to each other despite Mr. Mitchell’s current circumstances. When released, Mr. Mitchell is hoping to marry and have a family of his own.

g. Mr. Mitchell attended at public school and was removed from various schools for behavioral problems. He eventually went to live with his aunt and cousins to attend a new school. In grade eight, he moved back to his own home and graduated with honours.

h. Mr. Mitchell attended high school from grades 9-11 at Father Henry Carr. He was a valuable member of their basketball team, leading them to a championship. Unfortunately, Mr. Mitchell’s attendance at school faltered. He had little support and was told he was destined for employment that did not require an education (either the hospitality or construction industry). He believed that continuing his education was futile.

i. Mr. Mitchell currently has nine credits towards his high school diploma. He intends to enroll and complete courses when he is sentenced. (He has been on a waiting list for these courses while in pre-sentence custody.)

j. Since leaving school, Mr. Mitchell has been employed in odd jobs in both the construction and maintenance fields.

k. In 2014, Mr. Mitchell left Toronto to improve his life. Instead, he turned to criminality.

l. Mr. Mitchell does have a criminal record arising from offences committed in Saskatoon, Saskatchewan. On March 17, 2015, Mr. Mitchell was convicted of obstruction of a peace officer, failure to attend court and possession of the proceeds of crime. He received a sentence of six months (pre-sentence custody) concurrent on each charge.

m. After his release from custody, Mr. Mitchell returned to Toronto. He worked with his father in the cabinetry business when the work was available. His mother assisted in getting him a job at the Comfort Inn where he was on the housekeeping staff.

n. Mr. Mitchell grew up in neighborhoods rife with violence. He witnessed drug dealing, gang violence and shootings. During one shooting incident, he described himself as having run for his life. It was only when it was done, and he was alone, that he burst into tears. This has caused him to be tentative when outdoors – never letting down his guard and constantly looking over his shoulder.

o. Mr. Mitchell is a black male who has lived his entire life in the City of Toronto. He believes that he has been the subject of carding by members of the Toronto Police Service approximately two to three hundred times. He has been approached, carded, and searched while in his own residential building, walking on the street and playing basketball. [^4]

p. Mr. Mitchell advised the court that he wishes to lead a pro-social life. In addition to marrying and starting a family, he wishes to be gainfully employed, perhaps owning his own hairstyling salon.

[10] Mr. Mitchell has the support of his family and his community. Several letters were provided to the court on his behalf. They may be summarized as follows:

Ms. Alecia Tomlinson is Mr. Mitchell’s mother. Ms. Tomlinson is a very hardworking person who has tried to raise her children to the best of her abilities. She describes Mr. Mitchell as “kind” and “loving”. Following the birth of his younger brother, Mr. Mitchell was a great help, acting as a father figure to him. Ms. Tomlinson’s heart is breaking, and she asks for Mr. Mitchell to be given a second chance to “start a new life on a new path with his family”.

Ms. Tia Abbot is Mr. Mitchell’s girlfriend. She describes Mr. Mitchell as “kind” and “compassionate”. He goes out of his way to help and support others. She describes that “his empathy allows him to understand and connect with people on a deeper level”. He is “responsible” and “dependable”. He has a strong sense of integrity, standing by his values and principles, even when it is challenging to do so. She says that she feels “incredibly fortunate” to have Mr. Mitchell in her life. His “positive attributes” not only enrich their relationship but also have a profound impact on those around him.

Mr. Kenneth Tomlinson is Mr. Mitchell’s grandfather. He describes his grandson as “respectable, caring and loving”. The family is behind Mr. Mitchell “100%”. He believes that Mr. Mitchell “can turn a corner and change the company he keeps and his life in the process”. Mr. Tomlinson will “support, encourage and guide” Mr. Mitchell “back to where he should be”.

Ms. Audetta Murray is Mr. Mitchell’s great aunt. She describes Mr. Mitchell as a “joy” to be around. He is “loving, caring and kind”.

Ms. Sharon Mitchell is Mr. Mitchell’s aunt. She describes that Mr. Mitchell has a “deep sense of responsibility” towards his family and friends. She says that throughout his life, he has demonstrated integrity, kindness and respect for others. Like other family members, she is committed to helping Mr. Mitchell turn his life around and become a valuable member of society.

Ms. Yoneke Alexander is Mr. Mitchell’s aunt. She recognizes that the charges Mr. Mitchell is currently facing are serious in nature, but states that they do not reflect the individual that her nephew is in the community. She describes him as “intelligent”. She believes that given a second chance, he can turn his life around to become a productive and contributing member of society. She has noticed a change in Mr. Mitchell since his incarceration. He has a new outlook on life and has been able to reflect on the type of people he previously associated with. He recognizes that his “loyalty to his so-called friends has been misdirected”. She describes him as remorseful, and she believes his conduct will not be repeated.

Ms. Symone Clarke is Mr. Mitchell’s cousin. She describes their happy childhood, going to church and celebrating birthdays.

Mr. David Seaton is Mr. Mitchell’s cousin. He describes Mr. Mitchell as a person who keeps to himself and ensures that the family is “good”. He has been a “stand up person” and is loved by all. He says, “There are many things that people value in life and family has always been number one to my cousin”.

Ms. Felicia Mitchell is Mr. Mitchell’s cousin. She describes Mr. Mitchell’s basketball skills (as did others) and his desire to excel in the sport. He was smart, excelling in mathematics. She believes that he has the potential to be a law-abiding citizen with the right guidance. He has the resources to make significant and lasting changes in his life. He is kind, resilient and has a strong sense of loyalty. She describes that the family is prepared to provide a stable environment for Mr. Mitchell to pursue new opportunities. Given a second chance, she believes he can “truly make a fresh start and contribute positively to the community”.

Ms. Tiana Mitchell is Mr. Mitchell’s cousin. She describes Mr. Mitchell as “loyal and kind”. He has been helpful in raising her own children and she truly believes that his current situation does not reflect the person that Mr. Mitchell really is. She believes that with the right guidance, he has the potential to make positive changes and contribute to society.

[11] Records were filed from the Toronto South Detention Centre (“TSDC”) regarding Mr. Mitchell’s pre-sentence incarceration. They show that Mr. Mitchell was in lockdown for 168 days, either fully or partially, between December 8, 2022 and November 1, 2024 while incarcerated there. (Mr. Mitchell submits that the records are inaccurate based on his calculations, referred to below.)

[12] Mr. Mitchell provided some details regarding the conditions of his pre-sentence incarceration in his affidavit which may be summarized as follows:

a. On December 7, 2022, he turned himself into the police. He has been detained since then.

b. He began serving his pre-sentence custody on December 8, 2022. For the first two weeks, he was on a classification range which meant he was locked up for 23 hours a day.

c. For the past two months, he has been triple-bunked. While he did not sleep on the floor, it was difficult and stressful as the cells are small.

d. To use the washroom, the mattress on the floor had to be moved. The other two cellmates would sit on the bottom bunk with a sheet draped from the top bunk to provide privacy.

e. While triple bunked, there were several lockdowns that prevented them from showering. They were required to take a “bird bath”, using the small sink to clean. Lockdowns while being triple-bunked were particularly difficult as tempers flared.

f. Lockdowns that occurred when Mr. Mitchell was not triple-bunked caused hardship as well. There was limited access to showers, phone calls and hot meals. Visits were cancelled. Delivery of mail, books and magazines was slow and sporadic. Hopelessness and depression set in for Mr. Mitchell.

g. Access to yard time has been minimal and the “yard” appears to be falsely described as such. Mr. Mitchell describes that the yard is not outside and only permits a glimpse of the sun if positioned in an ideal location.

h. Despite being a model inmate (without misconduct) and being a member of “Tier 4”, which gives him more privileges, the lockdowns prevented this from occurring.

i. Mr. Mitchell and another inmate recorded the lockdowns which occurred between December 21, 2023 and June 2024. He believes there were more lockdowns than provided in the records from the TSDC.

j. Mr. Mitchell concluded his affidavit as follows: “I feel like being at the Toronto Detention Centre has changed me as a person. I have gone through weeks of deep depression where I have not called anyone including my lawyer. I used to be happy and [a] positive person. I am the opposite now. Without the support of my friends and family I don’t think I could have made it this far.”

[13] Mr. Mitchell has expressed remorse for his actions. He accepts responsibility. At the conclusion of the sentencing hearing, Mr. Mitchell addressed the court, apologizing for his conduct and indicating that he wishes to do better upon his release.

The Legal Framework: Sentencing

[14] The following is a summary of the legal principles applicable in sentencing for reckless discharge and possession of a firearm.

a. General Principles

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

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

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

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

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

(d) to assist in rehabilitating offenders;

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

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

[16] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vii); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). [^5]

b. The Range

[17] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. [^6] There is no such thing as a uniform sentence for a particular crime. [^7] However, ranges can provide guidance.

[18] Counsel provided sentencing precedents in cases involving convictions for reckless discharge of a firearm and possession of a loaded firearm. I do not intend to refer to all those authorities here, but as the sentencing court, I have considered them.

Reckless Discharge of a Firearm

[19] Mr. Mitchell has been convicted of three counts of reckless discharge of a firearm. Section 244.2(3)(a)(i) of the Criminal Code provides that the mandatory minimum penalty for a first offence is five years if a restricted or prohibited firearm is used in the commission of the offence. That mandatory minimum sentence applies in this case.

[20] Crown counsel relies on the case of R. v. Bellissimo, where the Court of Appeal referred to a range of 7 to 11 years for “serious gun related offences”. [^8] While it is uncertain what offence Mr. Bellissimo was convicted of, it is clear from the short endorsement that he fired several shots in a restaurant. He injured two people, one significantly, and narrowly missed killing a third victim. [^9]

[21] Bellissimo has been referred to in many cases and sentences have been imposed that fall within that range. However, there are cases that imposed sentences below that range, some of which may be summarized as follows:

R. v. Baugh: [^10] Three accused pled guilty to aggravated assault (wounding); intentional discharge of a firearm while being reckless as to the life or safety of another person; three counts of pointing a firearm (at three separate individuals); possession of a loaded restricted firearm without a license and occupying a motor vehicle knowing there was a restricted firearm in it. All three offenders discharged firearms at a taxi with three passengers inside, in a residential area. One of the men inside the taxi was struck. The taxi drove away, and the men pursued it in their vehicle. All three offenders had supportive families. Forestell J. considered several cases provided to her (including Bellissimo) and concluded that the range of sentence for reckless discharge of a firearm in the circumstances before her was six to 10 years. Two of the offenders, who were youthful and either had no record or an unrelated youth record, were sentenced to six years, considering harsh conditions of pre-sentence custody. The remaining offender, who was not youthful, had a related criminal record and was subject to a firearms prohibition at the time of the offence, was sentenced to seven and a half years.

R. v. Raymond: [^11] Mr. Raymond pled guilty to reckless discharge of a prohibited firearm, possession of a loaded prohibited firearm while not being the holder of a licence or registration certificate, and possession of a firearm while prohibited by a s. 109 order. He was involved in an altercation with an unknown person outside a nightclub during which, he discharged a firearm multiple times in that person’s direction, while on a public street and in the vicinity of others. Mr. Raymond was shot in the leg when a gun fight ensued. Mr. Raymond had a criminal record. He demonstrated remorse. He had extremely difficult early life experiences, including anti-Black racism. Mr. Raymond had rehabilitative potential, a supportive partner and three children. The court imposed a sentence of six years for discharge of a firearm and four years concurrent for possession of a loaded prohibited firearm.

R. v. Jama: [^12] Following a lengthy trial, Mr. Jama and Mr. Farah were each convicted of one count of recklessly discharging a restricted firearm. Mr. Farah was also convicted of possession of a loaded restricted firearm and possession of a firearm knowing he had no license, among other offences. Mr. Jama drove Mr. Farah to a parking lot where the latter fired at least three shots in the direction of a parked sedan with two men inside. The victims were never identified and there was no evidence as to whether they suffered injuries. Mr. Jama was on bail at the time of the offence. Both defendants were young. Mr. Farah had no prior criminal record. Both offenders had good prospects of rehabilitation. They experienced harsh conditions of pre-sentence custody. Schreck J. imposed the following sentences: Mr. Jama (the driver) to five years in custody; and Mr. Farah (the shooter) to six years and 22 months.

Despite counsel’s best efforts, I have not been provided with any precedents where the reckless discharge of the firearm arose in the context of the firearm being used in lawful self-defence.

Firearms

[22] There is no mandatory minimum sentence for possessing loaded firearms. However, courts have repeatedly recognized that firearms pose a significant danger to our community and that exemplary sentences must be imposed that denounce such conduct and deter others from possessing such dangerous weapons. [^13]

c. Pre-sentence Custody

[23] It is agreed that Mr. Mitchell should be given credit for the time he has spent in pre-sentence custody, pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers. [^14]

[24] It is also agreed that in certain circumstances, harsh pre-sentence incarceration conditions can be relevant to the determination of an appropriate sentence pursuant to R. v. Duncan. [^15] The approach to be taken in considering the harsh conditions of pre-sentence incarceration was clarified by Doherty J.A. in R. v. Marshall. [^16] The practice of assigning a credit of a specific number of days or months to punitive conditions of pre-sentence custody is not to be encouraged. The reason is that it may skew the fact that the harshness of pre-trial custody is only one of many factors that go into the determination of an appropriate sentence. [^17] That said, pre-sentence custody is a relevant consideration on sentencing.

d. Anti-Black Racism

[25] Anti-black racism is also a consideration on sentence. In R. v. Morris, the Court of Appeal held that the sentencing court can properly consider anti-black racism and its impact on the offender’s responsibility to assist in the selection of an appropriate sentence in the circumstances. [^18] However, our Court of Appeal held that there must be some connection between the racism identified and the circumstances that explain or mitigate the criminal conduct. The Court held as follows, at paragraph 97:

There must, however, 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. Racism may have impacted on the offender in a way that bears on the offender's moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender's colour. Everyone agrees there can be no such discount. [Citations omitted.]

[26] I will now turn to a consideration of the fit sentence.

The Fit Sentence

[27] In considering the fit sentence for Mr. Mitchell, I find the following to be the aggravating factors:

a. Mr. Mitchell was carrying a loaded and concealed firearm in a small bachelor apartment at the time of this offence.

b. The firearm was discharged while numerous people were in the small, enclosed space.

c. None of the victims of the shooting were in possession of a weapon at the time they were shot.

d. Mr. Gime was killed by Mr. Mitchell discharging the firearm. Three others were injured and required medical attention.

e. Mr. Mitchell fled the scene in possession of the firearm, putting other members of our public at risk.

f. The firearm used in the shooting was discarded by Mr. Mitchell, again putting our public at risk.

g. The firearm has never been recovered, leaving one more deadly weapon in our community so rife with gun violence.

h. The impact on Mr. Gime’s family and those shot has, no doubt, been devastating.

i. Mr. Mitchell is not a first offender.

[28] In considering the fit sentence for Mr. Mitchell, I find the following to be the mitigating factors:

a. Mr. Mitchell is still relatively young, being 29 years of age.

b. Mr. Mitchell grew up in areas of Toronto with a significant racialized population. He dropped out of school at a young age, was employed in odd jobs and was unsupported in the community.

c. Mr. Mitchell was provoked in the sense that he did not initiate the altercation. [^19] He discharged the firearm in response to the aggression of Mr. Delgado and in particular, Mr. Gime.

d. Mr. Mitchell did, eventually, turn himself into police. He has taken responsibility for his actions.

e. Mr. Mitchell did plead guilty at an early opportunity. This saved at least four to six weeks of valuable trial time when accused are being denied their right to a trial within a reasonable time. Foregoing the necessity of four to six weeks of trial time allowed another trial to proceed.

f. Mr. Mitchell did not use valuable court time in the Ontario Court of Justice. This matter proceeded by way of discovery as opposed to by way of a preliminary hearing. This freed up a provincial court to hear other matters.

g. The plea provided certainty of result. The early plea was also a sign of Mr. Mitchell’s remorse.

h. The plea saved the victims the necessity of reliving the incident.

i. Mr. Mitchell has suffered the consequences of successive lockdowns due to staff shortages at the TSDC. He has also suffered harsh conditions while incarcerated there, including triple bunking.

j. Mr. Mitchell aspires to complete his education and engage in pro-social employment. This is a clear expression of his desire to change his life. Again, this bodes well for his rehabilitation.

k. Mr. Mitchell has the support of family, a partner, and his community. They support Mr. Mitchell’s willingness to change his life to lead one that is pro-social. This bodes well for his rehabilitation.

l. Mr. Mitchell has apologized for his conduct, showing his remorse. He was articulate and he appeared to be sincere.

[29] The offences committed by Mr. Mitchell are very serious. He possessed, brandished and discharged a firearm during an altercation in a small apartment occupied by several adults. Although he was acting in self-defence when he discharged the firearm at Mr. Gime who was aggressively approaching him, he hit and injured three others in the apartment. Mr. Gime died from his injuries. Ms. Battisse, Mr. Delgado and Mr. Khan were all taken to hospital, treated for their wounds and released.

[30] Mr. Mitchell has accepted responsibility for his actions and has pleaded guilty to those offences involving the three victims who were shot and survived. He rightly contested the murder charge involving Mr. Gime, submitting that he was acting in self-defence. That charge was withdrawn by Crown counsel.

[31] While no victim impact statements were filed, the family of Mr. Gime was present during the proceedings. Mr. Gime is more than a name on an indictment. It goes without saying that the loss of Mr. Gime affected his family, causing them grief. It is another loss to our community because of gun violence. It also goes without saying that the three other victims would have suffered both physical and emotional harm as a result of having been shot.

[32] Mr. Mitchell is a relatively young man who grew up in difficult circumstances. He was not encouraged to pursue an education, having been told he was not capable of academic success. He was employed in odd jobs, thinking that he was good for nothing else. The locations in which he lived were marked by violence. He witnessed shootings. He was a young, Black male in Toronto whose freedom was routinely interfered with because of the colour of his skin. His opportunities were limited.

[33] I have taken into account anti-black racism and its impact on Mr. Mitchell. For example, when Mr. Mitchell’s educational and employment achievements are put into context, his history may be more reflective of institutional biases and systematic inadequacies faced by Mr. Mitchell than by any lack of potential or interest on Mr. Mitchell’s part. It also assists to explain how he came to commit the offence. [^20]

[34] Although the paramount principles in sentencing Mr. Mitchell are denunciation and deterrence, rehabilitation cannot be ignored. The appropriate sentence must be one through which our society feels protected and which deters others from committing similar crimes, without crushing Mr. Mitchell’s hopes of rehabilitation.

[35] Mr. Mitchell’s family would suggest that he gravitated towards a peer group involved in criminality. That led to his conflict with the law in Saskatchewan and his involvement in this incident. On a more positive note, this incident appears to have been a turning point in his life.

[36] Mr. Mitchell’s time spent incarcerated while awaiting the disposition of these charges has allowed him to reflect on the life he wishes to leave behind and the life he wishes to embrace in the future. That includes marriage to his supportive girlfriend, starting a family, securing an education and pro-social employment. His community is prepared to help him navigate a pro-social future when he is released from custody. In my view, Mr. Mitchell has high rehabilitative prospects.

[37] In reaching my conclusion about the fit sentence, I am mindful of the fact that this is Mr. Mitchell’s first visit to the penitentiary and of the direction of Rosenberg J.A. in R. v. Borde that a “first penitentiary sentence should be as short as possible”. [^21] There is no question that a penitentiary sentence is warranted based on the gravity of the offence. In fact, a penitentiary sentence is mandatory. However, the question remains regarding the length of that sentence.

[38] The offences committed by Mr. Mitchell arise out of the same circumstances. [^22] He possessed the loaded firearm and discharged it in the context of an altercation with Mr. Delgado and Mr. Gime. Crown counsel did not seek to prove that Mr. Mitchell possessed the firearm for a long period of time before he discharged it in the apartment. As such, all offences were temporally interlinked and arise out of the same criminal transaction. [^23] All counsel submit, and I agree, that the sentences imposed should be concurrent to each other.

[39] In my view, the objectives of sentencing can be met without imposing a sentence of nine to ten years as submitted by Crown counsel. Having considered the aggravating and mitigating factors of this case, I was of the view that a sentence of seven years (and possibly eight) would be appropriate. However, all counsel submit, and I agree, that an adjustment of Mr. Mitchell’s sentence is appropriate due to the conditions of his pre-sentence incarceration.

[40] I find that Mr. Mitchell has experienced conditions that are more difficult or punitive than the restrictions normally associated with pre-trial detention. This is due to the lockdowns at the TSDC and the conditions of Mr. Mitchell’s incarceration while he was there, including triple bunking.

[41] There has been hardship suffered due to the lockdowns, most of which were the result of staff shortages. I echo the sentiments of my colleagues, that although the message is being sent to our government that they must properly staff institutions to permit inmates to reside in humane conditions, that issue has remained, for the most part, unresolved. [^24]

[42] While I would have been inclined to impose a sentence of seven years’ imprisonment (84 months), I will reduce it to six years (72 months) to account for the harsh conditions of Mr. Mitchell’s pre-sentence incarceration. There has been a punitive impact due to the hardship of pre-sentence custody.

[43] It is my view that a sentence of six years’ imprisonment balances all the relevant sentencing principles and objectives. It is a sentence that sufficiently punishes and denounces Mr. Mitchell’s dangerous conduct and, to the extent possible, will assist in deterring others from engaging in such conduct. It imposes significant consequences that Mr. Mitchell will feel because it is a detour from the goals he seeks to achieve in life. However, it avoids a crushing sentence that may endanger society and Mr. Mitchell’s successful rehabilitation into the community. Lastly, it considers his susceptibility to bad influences, as well as the violence, poverty and racism he experienced growing up. As stated in R. v. Habib, “these factors do not excuse his dangerous actions but still have a mitigating effect”. [^25]

[44] A sentence of six years’ imprisonment is also required to achieve proportionality and parity. It is a sentence similar to those imposed on similar offenders who committed these types of offences. However, this case is also unique. Mr. Mitchell brandished and used the firearm in the context of self-defence. Unlike other offenders referred to above, he did not approach and intentionally shoot the occupants of a car or others outside a nightclub. Unfortunately, the three surviving victims of these offences were the collateral damage of Mr. Mitchell using his firearm in lawful self-defence.

[45] Mr. Mitchell has spent 735 days (just over two years) in custody. Enhanced at one and a half days for each day spent in pre-sentence custody (pursuant to Summers), Mr. Mitchell will be given credit for three years. This leaves a sentence to be served of three years.

Conclusion

[46] Mr. Mitchell is sentenced to a global period of incarceration of six years (72 months). Mr. Mitchell will be given credit of three years. This requires that Mr. Mitchell serve another three years in custody.

[47] The custodial sentences will be imposed as follows:

Count 1: Six (6) years less three (3) years of pre-sentence custody for a further three (3) years of imprisonment to serve.

Count 2: Six (6) years less three (3) years of pre-sentence custody for a further three (3) years of imprisonment to serve, concurrent.

Count 3: Six (6) years less three (3) years of pre-sentence custody for a further three (3) years of imprisonment to serve, concurrent.

Count 6: Three (3) years less three (3) years pre-sentence custody, concurrent.

[48] I also order that Mr. Mitchell be subject to a prohibition order under s. 109(1)(a) of the Criminal Code. Pursuant to s. 109(2), I direct that Mr. Mitchell be prohibited from possessing any weapon as defined by the Criminal Code for life.

[49] Reckless discharge of a firearm is a primary designated offence within the meaning of s. 487.04 of the Criminal Code and accordingly, a DNA order is mandatory. Therefore, I direct that Mr. Mitchell provide a sample of his DNA.

[50] Lastly, I order that Mr. Mitchell have no contact with the family of Mr. Gime nor of Ms. Battisse, Mr. Delgado and Mr. Khan pursuant to s. 743.21 of the Criminal Code.

Kelly J. Released: December 12, 2024

Footnotes

[^1]: Committed contrary to s. 244.2(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. [^2]: Committed contrary to s. 95(1) of the Criminal Code. [^3]: The apartment was described as “cluttered”, so much so that the Forensic Identification Services (“FIS”) were described as “stymied” during their investigation. According to Mr. Medas, they missed collecting ballistics which he later turned over to the TCHC, although there is no record of the exchange. [^4]: Mr. Mitchell did not have the financial resources to obtain an Enhanced Pre-Sentence Report (i.e., a Morris report). Further, a report would not have been available in a timely manner due to the demand. [^5]: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 41 (“Nur”). [^6]: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paras. 40, 92. [^7]: R. v. Hamilton (2004), 72 O.R. (3d) 1, at para. 85 (C.A.). [^8]: 2009 ONCA 49, at para. 3 (“Bellissimo”). [^9]: Ibid., at para. 4. [^10]: 2021 ONSC 8408. [^11]: 2024 ONSC 2786. [^12]: 2021 ONSC 4871. [^13]: R. v. Danvers (2005), 199 C.C.C. (3d) 490, at para. 77 (Ont. C.A.); Nur, at para. 5. [^14]: 2014 SCC 26, [2014] 1 S.C.R. 575 (“Summers”). [^15]: 2016 ONCA 754, 2016 CarswellOnt 15975, at para. 6. [^16]: 2021 ONCA 344, 2021 CarswellOnt 7286. [^17]: Ibid, at para. 53. [^18]: 2021 ONCA 680, 159 O.R. (3d) 641, paras. 106-107 (“Morris”). [^19]: R. v. Stone, [1999] 2 S.C.R. 290, at para. 237; R. v. Clarke (2003), 172 O.A.C. 133, at para. 6. [^20]: Morris, at paras. 104, 106. [^21]: (2003), 63 O.R. (3d) 417 (C.A.), at para. 3. [^22]: R. v. McCue, 2012 ONCA 773, 299 O.A.C. 14, at para. 2. [^23]: R. v. Downey, 2006 ABCA 108, 384 A.R. 99, at paras. 2, 6. [^24]: See R. v. Persad, 2020 ONSC 188, 2020 CarswellOnt 95. [^25]: 2024 ONCA 830, 2024 CarswellOnt 17335, at para. 55.