Reasons for Sentence

Court File No.: CR-23-40000031-0000
Date: 2025-02-25
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Brandon Neliko and Charlotte Koehler

Patricia Garcia, for the Crown
Madalyn Bavaro, for Mr. Neliko

Heard: November 2, 2023; August 27 and 28, 2024; January 9 and 10, 2025
M. Forestell

I. Overview

[1] Brandon Neliko entered guilty pleas on November 2, 2023 to charges of discharging a firearm with intent to wound, possession of a loaded firearm, and failing to comply with a release order. The charges arise out of the discharge of a firearm in a crowded Toronto shopping mall in August 2021.

[2] Mr. Neliko’s sentencing was adjourned several times for an enhanced presentence report to be prepared. Sentencing submissions were made on August 27, 2024, and I reserved my decision on sentencing. Subsequent to sentencing submissions being made, counsel for Mr. Neliko became aware that Mr. Neliko had been subject to numerous strip searches in custody. Sentencing was again adjourned for Mr. Neliko to bring an application under the Canadian Charter of Rights and Freedoms (the “Charter”) alleging a breach of Mr. Neliko’s rights under s. 8 of the Charter and seeking a reduction of sentence under s. 24(1). That application was argued on January 9th and 10th, 2025. I reserved my decision on the Charter application and on sentencing until today.

II. Positions of the Parties

[3] The Crown seeks a global sentence of 15 years’ imprisonment before credit for presentence custody. This would be broken down as 14 years on the charge of discharge firearm with intent (the statutory maximum), a concurrent sentence for possession of the loaded firearm and one year consecutive for the breach of release order. The Crown submits that the circumstances of this offence and this offender justify a sentence higher than the upper end of the 7-to-11-year range described in previous cases.

[4] The Crown submits that there was no breach of Mr. Neliko’s s. 8 rights and that no remedy under s. 24(1) should be granted. The Crown does not dispute that strip searches can be properly considered as a mitigating factor on sentence absent a Charter breach.

[5] Before the allegation of the Charter breach, Mr. Neliko submitted that a global sentence of seven years’ imprisonment would have been appropriate. Mr. Neliko submits that the breach of his s. 8 Charter rights as a result of the strip searches to which he was subjected justifies a significant reduction in that sentence. He further submits that even if the strip searches did not amount to a breach of his rights under s. 8 of the Charter, the strip searches were part of the harsh conditions of his detention and should further mitigate his sentence.

III. Issues

[6] There are two issues to be decided in this case:

1. Were Mr. Neliko’s rights under s. 8 breached by the strip searches conducted while he was in presentence custody and if they were breached what remedy should be granted?

2. Should a sentence outside the previously described range of 7 to 11 years’ imprisonment for serious gun-related offences be imposed in the circumstances of this case? (In answering this question, I must necessarily also decide the appropriate sentence for Mr. Neliko in light of all of the circumstances and the relevant sentencing principles and objectives.)

1. Were Mr. Neliko’s rights under s. 8 of the Charter breached by the strip searches conducted while he was in presentence custody and if they were breached what remedy should be granted?

Overview

[7] Mr. Neliko argues that his rights under s. 8 of the Charter were infringed when he was strip searched while in pre-sentence custody at the Toronto East Detention Centre (the “TEDC”). Mr. Neliko was strip searched each time he left the institution and returned to the institution. He was also strip searched many times when he was not entering or leaving the TEDC.

[8] Mr. Neliko takes no issue with the searches conducted when he left and returned to the TEDC. He submits that the other strip searches breached his rights. Specifically, Mr. Neliko alleges:

• (1) that he was strip searched three to four times in his cell with his cellmate present;
• (2) that he was strip searched in the washroom area of his unit many times (as many as 15 to 20 times) in circumstances where others could see him, without consideration of less intrusive searches and without a reason being communicated to him; and
• (3) that he was strip searched in the Admitting and Discharge area of the TEDC after “Whole Body X-Ray Security Scanning” (“body-scan”) on numerous occasions in an area where individuals other than the searching officers could see him, without consideration of the necessity of the strip search and without a reason being communicated.

[9] Mr. Neliko acknowledges that the Ministry of Correctional Services Act, RSO 1990, c M.22 (the “Act”) authorizes inmate searches, including strip searches. The legislation authorizes searches to be carried out in “the prescribed manner”. Mr. Neliko has not challenged the legislation or the institutional Policy and Procedures Manual that prescribes the manner of searches.

[10] Mr. Neliko’s position is that the strip searches were not authorized by the legislation and the Policy and Procedures Manual and were not conducted reasonably.

Legislation and Policy and Procedures

[11] The Act governs the conduct of searches at the TEDC. Section 23.1 of the Act provides as follows:

23.1 (1) the superintendent of a correctional institution may authorize a search, to be carried out in the prescribed manner, of, (b) the person of any inmate or other person on the premises of the correctional institution…

[12] The ‘prescribed manner’ of searches is set out in the Ministry’s Institutional Services Policy and Procedures Manual: Security and Controls – Searches [the “Policy Manual”].

[13] Mr. Neliko was transferred to the TEDC from another institution on August 10, 2023. The strip search policy that was in effect for most of Mr. Neliko’s incarceration at the TEDC was released on October 3, 2023.

[14] The relevant portions of the Policy Manual are the following:

3.1 Where practical and operationally feasible, consideration will be given to utilizing the Whole Body X-Ray Security Scanning System in lieu of conducting a strip search. This consideration does not apply to inmates coming into the institution from the community, transferring in or from court.

3.6 Correctional staff will conduct frisk and strip searches in a respectful manner, exercising sensitivity, professionalism, and preserving dignity and human rights. An inmate will not be unclothed for longer than what is necessary to conduct the strip search. Searches will be conducted in a manner that does not cause unnecessary embarrassment or humiliation and must take into account any applicable accommodation needs.

3.10 Frequent and thorough searches of inmates, their living accommodations, other areas of the institution and the grounds will be conducted for the purpose of discovering contraband, objects and situations that might be dangerous or detrimental to the safety and welfare of staff, inmates, other persons or to the overall security of the institution. Searches are designed to achieve this by:

3.10.1 detecting and preventing the introduction, use or trafficking of contraband;

3.10.2 recovering missing or stolen property;

3.10.3 identifying items or situations which might assist in or contribute to an escape, disturbance, suicide, assault, or other serious occurrence;

3.10.4 discouraging theft, trading and bartering by inmates;

3.10.5 detecting the presence of and or the manufacture of weapons, escape devices, or intoxicants within the institution;

3.10.6 identifying health, safety and security hazards which might remain undetected during less formal inspections; and

3.10.7 monitoring and preventing waste, vandalism, or misuse of government property.

4.4 Strip search: a visual inspection that is not conducted as part of a medical examination or treatment of the body after all clothing has been removed and of any clothing or other personal possession that the person was required to remove. The strip search may include a visual examination of the external surface areas of an inmate’s body cavities which is performed by an officer providing verbal direction to the inmate and without touching the inmate in the manner taught as per training.

6.5.1 Two staff members of the same gender as the inmate being searched must be present in order to conduct a strip search. This consists of a primary officer conducting the search and a witness, who can be another officer or custodial trained staff who will also provide support and back up as needed.

6.5.3 While strip searches are a necessary correctional practice to maintain facility security, staff are reminded to be professional and exercise sensitivity in performing them, in addition to considering any Code Related Needs and Requests.

6.5.5 Where a search cannot be completed in a less intrusive manner, for example, by use of the Whole Body X-Ray Security Scanning system, an inmate will be strip searched:

a. whenever there are reasonable grounds to believe that the inmate is carrying contraband within, into or out of the institution;

b. whenever an inmate is isolated as a suicide risk or other risk to themselves or other persons;

c. when the inmate is involved in or suspected of being involved in a disturbance or other significant occurrence where the security of the institution has been or might be jeopardized;

d. when searching an inmate's cell or dormitory;

e. when an inmate is returning from a place or activity where highly toxic or dangerous items are located; and

f. prior to entering and or leaving an open visiting area.

6.5.6 Where there are reasonable grounds to believe that an inmate has a dangerous weapon on their person that was not found or cannot be found during a frisk search, the officer may elect to initiate a strip search of the inmate.

6.5.7 At no time are inmates to be left standing uncovered prior to or following the search procedure. If necessary, inmates will be provided with a clean gown or underwear to preclude unnecessary embarrassment or humiliation. Strip searches of inmates will be conducted individually and in private unless it is not possible to do so due to extenuating circumstances. Refer to the policy statement that inmates will not be unclothed longer than necessary.

6.5.8 Strip Search Procedures

a. Two staff members will be present when a strip search is conducted. The first staff member, will be a correctional officer, who is the primary searching officer and the second, who is a correctional officer or custodial trained staff member, is the back up or witness.

6.5.9 Prior to commencing the strip search, the primary search officer will communicate to the inmate the reason for the search and the procedure involved.

[15] On July 31, 2024, Part 3.1 of the Policy Manual was changed to direct that “consideration shall be given to utilizing the Whole Body X-Ray Security Scanning System in lieu of conducting a strip search unless it would not be effective at locating contraband or is not operationally feasible”.

[16] A further section was added to delineate when a strip search of a group of inmates could be conducted:

Strip Searches of Groups

6.9.1 An officer or manager may conduct a strip search of a group of inmates if they have reasonable grounds to believe that:

a. Contraband that can be hidden on or within the body and that poses a clear and substantial danger to human safety or security is present in the area of the institution where the group of inmates are located;

b. A strip search of the group of inmates is needed to confirm the existence of contraband or recover it; and

c. Using a less intrusive search method would not be effective at locating contraband or is not operationally feasible.

6.9.2 The strip search of a group of inmates must be limited to as small a group of inmates as is reasonably necessary to confirm the existence of contraband or recover it.

Note: More than one inmate being strip searched due to suspicion of contraband in the same area, such as a living unit, yard, work or program area, where it is unknown which inmates possess the contraband, is considered a strip search of a group. However, where multiple inmates are identified within a group and there are reasonable grounds to believe that each of the individual inmates identified possesses contraband and the search is limited to those inmates, then the procedures for Strip, Searches with Individualized Suspicion would apply.

6.9.3 Where a group of inmates are authorized to be strip searched and the grounds for the search are satisfied before completing the strip search of the entire group then the search will be concluded. For example, in a group of twenty inmates, if the search was for a specific item such as a missing razor and the item was recovered after searching the first five inmates, then the remainder of the group should not be strip searched unless the criteria for reasonable grounds are still met.

6.9.4 An officer, correctional supervisor, or manager will not strip search groups of inmates without first obtaining approval. In the case of an officer or correctional supervisor, the request to strip search a group of inmates will be made by the officer or correctional supervisor, as applicable, to their manager who will obtain the personal approval of the superintendent or, in the absence of the superintendent, the acting head of the institution prior to conducting a strip search of a group of inmates.

[17] A section was added to address measures to ensure privacy during strip searches:

6.6 Strip Search Privacy Requirements

6.6.1 Strip searches of inmates will be conducted individually and in private unless it is not operationally feasible. Refer to the policy statement that inmates will not be unclothed longer than necessary.

6.6.2 Where operationally feasible, reasonable measures will be taken to ensure that the inmate's underwear, chest, buttocks and genitals are not visible to any person other than the inmate, the primary search officer and the witness. The strip search will not be will not be viewed by live CCTV monitoring. CCTV recordings containing a strip search are not prohibited and, subject to the privacy requirements of this section, may be relied on for safety, security or investigative purposes.

6.6.3 Strip searches will be conducted in the areas that have been designated by the superintendent.

6.6.4 Areas designated for conducting strip searches will not be live monitored by CCTV. If operational needs require the areas surrounding a designated strip search area to be monitored live by CCTV, the designated strip search area will be redacted using camera masking or other means to ensure that no live monitoring of strip searches is possible.

Evidence

[18] Staff-Sergeant John Lawson, the security manager for the TEDC, testified on the Charter application. He explained that there are different types of searches conducted in the TEDC. Strip searches are conducted when there are reasonable grounds to believe that there is contraband on the person of the inmate or on the unit. If a weapon or other contraband is suspected, the inmate or inmates are handcuffed, taken to Admitting and Discharge, and body scanned. Following the body scan, they are strip searched in a designated area where there is a privacy wall.

[19] Staff-Sergeant Lawson initially testified that a strip search would always be conducted following the body scan, regardless of the outcome of the body scan. He later clarified that if the suspected contraband was located with the body scan, a strip search might not be conducted and if the suspected contraband was located during the scan or search of one inmate, the other inmates on the unit would not be searched. A decision not to proceed with the strip search, or not to search all inmates on a unit, would depend on the reason for the search and the results of the body scan or initial searches.

[20] The reason given by Staff-Sergeant Lawson for conducting both a body scan and a strip search was that the skill of the person operating the body scanner varies and not all operators would be able to locate contraband on the image. Staff-Sergeant Lawson described the body scanner as helpful but deficient in locating items such as Fentanyl or other drugs.

[21] Staff-Sergeant Lawson testified that historically, the washroom area of a unit was used for strip searches but that was no longer the practice and had not been a practice at the TEDC ‘for years’. He testified that the washroom area might be used if it was an emergency. He then testified that if it was a search for contraband other than a weapon, the inmates could be strip searched individually in the washroom area and moved to a different area while the cells were searched.

[22] Staff-Sergeant Lawson testified that a full strip search in a cell in the presence of another inmate should never happen. He said that if an inmate is believed to have a weapon, the inmate may be asked to strip to their boxers before being handcuffed and taken out of the cell.

[23] The area where strip searches are conducted in Admitting and Discharge is depicted in a video of the area filed as an exhibit. The camera mounted outside that area captures the shoulders, neck and head of the inmate being searched. There is a window from the search area into the large working area. The window is set high in the wall. Within the search area there is a partial wall similar to the wall of a washroom cubicle. The wall blocks the view from the door into the search area.

[24] The records from the TEDC show that Mr. Neliko and all inmates on his unit were strip searched 13 times from the time of his transfer to the TEDC in August of 2023 to the last recorded strip search on October 24, 2024. It was agreed that there was a further strip search conducted after the records were obtained. All of the strip searches were ‘group searches.’ There was no individualized suspicion of Mr. Neliko possessing contraband or weapons.

[25] One of the searches is noted in the records to be ‘institutional’ and does not state any further reason for the search. The other records identify suspicion of contraband or weapons as the reason for the search. Staff Sergeant Lawson testified that previously, units would routinely be searched, including strip searching inmates, but more recently, strip searches are conducted only when there is a reason to suspect that there is contraband or a weapon. Staff Sergeant Lawson had not signed off on the record that indicated ‘institutional search’ and did not explain the meaning of the phrase on that March 9, 2024 record. The search on March 9, 2024 predated the revision of the Policy Manual on July 31, 2024 that specified the requirement for reasonable grounds to believe in the presence of contraband before a group strip search can be conducted.

[26] Mr. Neliko testified and described more searches than the 13 recorded in the records. He said that it ‘felt like’ he was searched almost weekly. He testified that he was rarely told the reason for the searches. He also described the searches in Admitting and Discharge as being for contraband and he said that the most recent search was for contraband.

[27] Mr. Neliko described being strip searched in his cell in the presence of his cellmate on three to four occasions. On each of these occasions, the correctional officer stood outside the cell and directed each inmate to remove articles of clothing and pass them through the hatch. Once each inmate was naked, they would be asked to bend over. They were also asked to open their mouths and show the inside of their mouths. Following these strip searches, they would be handcuffed and brought to Admitting and Discharge for a body scan. Mr. Neliko could not recall the name of any cellmate who was present for the strip searches in the cell. He could not recall the names of the correctional officers who conducted these searches. He could not give details of the dates of the searches.

[28] On about 15 to 20 other occasions, Mr. Neliko described being strip searched in the washroom area of his unit. He was taken to the shower stall area and directed to remove his clothes and bend over. There is a window between the washroom area and the dayroom of the unit. A person standing at the window would be able to see the upper body of a person standing in the stall area. He was not taken to Admitting and Discharge for a body-scan after these searches.

[29] Mr. Neliko agreed that other inmates were unlikely to deliberately look through the window to the washroom while a strip search was being conducted.

[30] Mr. Neliko was also strip searched in the Admitting and Discharge where the body-scanner was used prior to the strip search in an area within Admitting and Discharge with a partial cubicle type wall. He testified that while there were only supposed to be two correctional officers present for the search, there were often more than two in the area.

[31] Mr. Neliko agreed that he had been found guilty of 18 institutional misconducts while at the TEDC and one incident involving use of force. Mr. Neliko testified that he had tried to stop a fight on the occasion when he was found to have used force.

[32] Mr. Neliko testified that he had not experienced the frequency and types of strip search that he experienced at the TEDC when he was at other detention centers. He had been detained at the Central East Correctional Center and the Toronto South Detention Center before being transferred to the TEDC.

[33] Mr. Neliko testified that the searches made him feel dehumanized, degraded, humiliated and angry.

Law and Analysis

[34] Strip searches engage s. 8 of the Charter. Section 8 protects a person from unreasonable search and seizure. The searches were warrantless, and the onus is on the Crown to establish that each of the searches were authorized by law; that the law is reasonable; and that the manner in which the search was conducted was reasonable. R. v. Collins, [1987] 1 SCR 265, paras. 22-23

[35] Strip searches in the correctional center context are distinguished from searches upon arrest because of the need to prevent contraband and weapons from being introduced or distributed in the institution. R. v. Golden, 2001 SCC 83, paras. 96-97 In R. v. Rootenberg, 2020 ONSC 171, para. 116, aff’d 2024 ONCA 493, Allen J. found that it was not unreasonable for inmates to be subject to strip searches in the detention center. She held that, “…safety and security outweighs the interest in privacy and reduces an inmate’s expectation of privacy”.

[36] Warrantless searches, including strip searches, can be conducted in the context of a correctional center. R. v. Major Such searches must, however, be performed in accordance with the governing legislation.

[37] The law that governs the searches in the TEDC as set out above is s. 23.1 of the Ministry of Correctional Services Act and the Policy Manual that prescribes the manner of search. Mr. Neliko has not challenged the reasonableness of that law. His position is that his rights were infringed by searches that were not authorized by law or that were conducted unreasonably.

[38] Mr. Neliko argues that the searches he experienced were conducted in a way that was contrary to the stated institutional policy because consideration was not given to the use of the body-scanner in lieu of a strip search, reasons were not communicated to him, and the searches were not conducted in a private area.

[39] The position of the Crown is that Mr. Neliko should not be believed when he asserts that he was strip searched in his cell or when he says that he was not told a reason for a strip search. He should not be believed when he says that he was strip searched more often than the institutional records disclose. The Crown further submits that the other searches complied with the institutional policy and were conducted in a reasonable manner.

[40] I find that the strip searches that were performed and documented by the TEDC were not unreasonable. The records of the searches do not specify the location of each strip search, but I accept the testimony of Staff-Sergeant Lawson that they would have been conducted either in the area of Admitting and Discharge (if the body scanner was used) or in the washroom area of the unit with no resort to the body-scanner.

[41] I do not accept the evidence of Mr. Neliko, that there were more than 14 strip searches conducted. Mr. Neliko testified that he recorded the strip searches, but he did not produce his record. He was uncertain of the number of searches and was able to say only that it ‘seemed like’ it was more frequent. While he may have had a sense of the searched being more frequent, I do not accept that they were more frequent.

[42] I have considered the records produced by the institution. Each record of a strip search notes a reason for the strip searches, with the exception of a search on March 9, 2024 that is noted as being an ‘institutional search’ I accept Staff-Sergeant Lawson’s evidence that searches are now conducted only with a reason. The March 9, 2024 search was conducted before the Policy Manual revision on July 31, 2024. The search would not have been in compliance with the July 31, 2024 Policy Manual. It would have been a breach if conducted after July 31, 2024. I cannot conclude that, at the time of the search, it was not authorized by law. Frequent and thorough searches for contraband were permitted prior to July 31, 2024 without the specific requirements later introduced for group searches.

[43] I have carefully considered the evidence, that strip searches were routinely conducted even after the use of a body-scanner. The policies in place at the relevant times required consideration of the body-scan or other less intrusive means ‘in lieu of’ a strip search’. The evidence of Staff Sergeant Lawson was that there is a standard practice at the TEDC of strip searching after a body scan because there is contraband that can go undetected by the body scan and because the operators of the body scanner are not all equally skilled at reading the results. I cannot conclude the practice fails to follow the policy manual. There was a consideration of the use of the body-scanner ‘in lieu of’ a strip search, but the administration concluded that the body-scanner was not generally adequate for searches for weapons and smaller items.

[44] I have also considered the location of the searches and I have concluded that the washroom area of the unit and the strip search area in Admitting and Discharge meet the requirement that searches be conducted in private and in a manner that ensures that the inmates’ chest, buttocks and genital areas are not visible to anyone other than the searching officer and the witness. The washroom shower area protects the inmate from view from the common area. The Admitting and Discharge search area has a cubicle type partition to protect the inmate from being observed by others in the area.

[45] A search that required an inmate to strip to his boxers in his cell with a cellmate to ensure that no weapons were being concealed is not contrary to the Policy Manual and is reasonable. A strip search conducted in a cell that required the inmate to be fully naked in the presence of a cellmate would not meet the Policy Manual requirement that the search be conducted in private. It would not be authorized by law and it would not be reasonable. Staff Sergeant Lawson testified that such a search should never occur.

[46] Mr. Neliko testified that he was subject to a search in his cell in the presence of a cellmate on three to four occasions. This occurred shortly after he was detained. He did not complain because he was unaware that it was not allowed. He did not recall the names of his cellmates at the time of these searches. He did not recall the names of the correctional officers who conducted the searches.

[47] Any strip search conducted without communicating any reason would also be contrary to the Policy Manual, not authorized by law and unreasonable.

[48] Mr. Neliko testified that he was generally not told a reason for the searches. However, he also testified that searches in Admitting and Discharge were generally for contraband. He described a recent search that was not reflected in the records (because they were subpoenaed before the hearing). In that recent search he was informed that the search was for contraband.

[49] I have serious concerns about Mr. Neliko’s general credibility and reliability. With respect to his evidence concerning the searches: His evidence concerning the circumstances of the searches in the cell lacks detail that would allow for any investigation of his assertion; He was vague about the timing, the individuals conducting the searches and the cellmates present; He was unable to specify the number of times that the searches occurred; His evidence about the lack of communicated reasons for the searches was inconsistent and similarly lacking in detail.

[50] The evidence of Staff-Sergeant Lawson with respect to the general practices surrounding strip searches was inconsistent with the evidence of Mr. Neliko. I accept the evidence of Staff-Sergeant Lawson. I recognize that it does not directly contradict Mr. Neliko’s assertions with respect to the specific searches, but it provides context for the general practices and casts further doubt on Mr. Neliko’s account of the searches.

[51] I reject Mr. Neliko’s evidence that he was forced to strip naked in his cell in the presence of his cellmate and that he was not told the reasons for the various searches.

[52] I have concluded that in all of the circumstances, Mr. Neliko’s s. 8 Charter rights were not infringed.

[53] My conclusion that the number and manner of the searches did not rise to the level of a Charter breach does not mean that the searches did not impact on Mr. Neliko. I will take the circumstances, including the frequency of the searches into account as a mitigating factor on sentence.

2. Should a sentence outside the previously described range of 7-11 years imprisonment for serious gun-related offences be imposed in the circumstances of this case?

Circumstances of the Offences

[54] The Crown has argued that in the circumstances of this case, the range of sentence is inadequate and should be increased. To address this issue, I will set out the circumstances of the offence and the offender before turning to the range of sentence.

[55] The facts supporting the guilty pleas were admitted by Mr. Neliko and are contained in an Agreed Statement of Facts signed by Mr. Neliko and filed as an exhibit.

[56] Mr. Neliko attended the Yorkdale Mall on August 29, 2021, with his girlfriend, Charlotte Koehler, to go shopping. He was carrying a loaded firearm. It is admitted that Mr. Neliko was, at the time, involved in the drug trade. He carried the loaded firearm for protection. Shortly after he entered the mall, Mr. Neliko saw two men, Mr. Stafford and Mr. Owusu. Mr. Neliko immediately reached for his firearm and pointed it at Mr. Stafford. He fired two shots in the direction of Mr. Stafford.

[57] Mr. Owusu then drew his own firearm and shot three times in the direction of Mr. Neliko. The area around both Mr. Stafford and Mr. Neliko was crowded with shoppers. Miraculously, no one was shot.

[58] After the shots were fired, the area erupted into chaos. Mr. Owusu ran toward an exit, tripping over a baby stroller and causing injury to the baby. Mr. Neliko fled toward an exit and broke through a locked glass door to escape.

[59] Surveillance footage from the mall after the shooting shows people running and falling. 911 calls captured calls from citizens locked down in the mall and terrified after the shooting. One victim, Ms. Applebaum, was an older person who tripped and fell, suffering a fracture to her cheek, broken teeth, and bruising.

[60] Mr. Neliko and his girlfriend left the area after the shooting. They left Toronto. Mr. Neliko disposed of the gun that he used in the shooting. Mr. Neliko was arrested the next day when they returned to Toronto.

[61] The Agreed Statement of Facts signed by Mr. Neliko states that his motivation for the shooting was a drug trafficking dispute between the parties to the shooting.

[62] In his interview with the probation officer who prepared the Presentence Report, Mr. Neliko told the probation officer that his actions were motivated by a threat from the other men. In his interview with the author of the Enhanced Presentence Report he reiterated this position.

[63] The position of Mr. Neliko on sentencing was that there was an element of self-defence in the incident that could be considered as a mitigating factor. He was clear, however, that his actions were not reasonable in the circumstances and that the defence of self-defence was not available.

[64] Mr. Neliko testified on the sentencing hearing with respect to this aspect of the circumstances. He said that he saw Mr. Stafford reach for a weapon. It was for this reason that Mr. Neliko immediately drew his firearm, pointed it, and fired.

[65] The evidence that Mr. Neliko fired his gun because he believed that he was in danger is challenged by the Crown. The position of the Crown is that this potentially mitigating factor has not been proved on a balance of probabilities. The Crown submits that I should reject the evidence of Mr. Neliko on this issue based on the video surveillance of the incident which does not show either of the other two men reaching for a gun. The Crown also submits that Mr. Neliko’s evidence was generally implausible.

[66] I have carefully considered Mr. Neliko’s testimony. I have reviewed the video of the incident. Mr. Neliko’s description of the other man reaching for a gun is not supported by the video evidence. I accept that Mr. Neliko perceived a threat when he saw the other man because he was engaged in a dispute with the man over drug territory. I do not accept that he saw the man reach for a gun because the video simply does not support that fact.

Circumstances of Mr. Neliko

[67] Mr. Neliko is 25 years old. He was born in Toronto. His parents emigrated to Canada from Congo in 1992. Mr. Neliko’s mother attended York University and has been employed as an early childhood educator for the past 20 years. His father is a Christian minister.

[68] Mr. Neliko spent the first five years of his life in Regent Park. When he was five years old, the family’s apartment caught fire. The family moved more than once after the fire. They lived in subsidized housing in low-income areas. Mr. Neliko continued to attend school in Regent Park.

[69] Mr. Neliko was exposed to violence, including gun violence, when he lived and went to school in Regent Park. At age 16, he and his friends were shot at and at age 20 he witnessed the shooting of his cousin. Mr. Neliko has lost 10 friends to gun violence.

[70] When Mr. Neliko was 16 years old, his family moved to a quiet neighbourhood in Bowmanville. Although there was no violence in his new neighbourhood, Mr. Neliko reported that the area did not feel like home, and he was not welcomed. There were few Black students at his high school. His mother reported that their white neighbours did not speak to them.

[71] Mr. Neliko did well in school but was placed in the applied stream in grade 9. He noted that many of the students in his applied classes were Black while the academic stream was predominantly white.

[72] After graduating from high school, Mr. Neliko briefly attended college in Ottawa to study civil engineering. He dropped out after one semester.

[73] Mr. Neliko has been stopped and detained frequently by police even when he was very young. He was attacked by a police dog in 2020 and sustained injuries as a result.

[74] Mr. Neliko had no criminal record at the time of these offence.

[75] Mr. Neliko has been in custody since his arrest in August of 2021. He has spent 733 days in custody related to these charges. During his time in presentence custody, Mr. Neliko has experienced very frequent lockdowns and triple-bunking. Mr. Neliko has been found guilty of institutional misconducts. These have included refusing to follow orders from the guards, threatening and being present in a cell during an assault and a fire.

[76] As I noted in my reasons for finding no breach of Mr. Neliko’s Charter rights, the frequency of strip searches to which he was subjected remains a mitigating factor on sentence. Mr. Neliko was frequently strip searched. The process was humiliating and degrading.

[77] In spite of the very onerous conditions of his presentence custody, Mr. Neliko completed 14 Life Skills, Educational Session program booklets offered by the Toronto East Detention Centre. He also participated in the Black Employment Support Programme, ‘Inside Out’, run by the organization Urban Rez. After graduating from the programme, he met with a worker to develop a plan to begin an apprenticeship when he is released.

[78] Mr. Neliko is enrolled in a college level business course through the organization Amadeusz. He is described as a dedicated, capable, and engaged participant.

Range of Sentence

[79] In R. v. Bellissimo, 2009 ONCA 49, the Court of Appeal held that the range of sentence for serious gun-related offences was between seven and eleven years. In Bellissimo, the offender fired several shots into a restaurant — seriously injuring one victim, causing minor injuries to another, and narrowly missing a third person. The Court held that 10 years was a proper sentence for that offender.

[80] The range in Bellissimo has been applied in many cases, including cases where no injury has resulted. In R. v. Alexander, 2013 ONSC 171, the 29-year-old offender fired a gun at a loss prevention officer in a shopping mall. No-one was injured. He was convicted of discharge with intent to prevent arrest and other firearms offences. He was sentenced to a global sentence of nine years (seven years for the charge of discharge with intent). That offender had a lengthy record and was subject to a firearms prohibition at the time of the offences. In R. v. Ali, 2016 ONSC 8190, an offender who shot a person in the foot in the parking lot of a busy mall received as sentence of eight years (seven years for the offence of discharge firearm). The offender had a minor criminal record, was 26 years old at the time and was convicted after trial.

[81] In R. v. Osman, 2022 ONSC 648, a 34-year-old offender with a criminal record who fired a handgun outside a busy mall and near an elementary school and park was sentenced to six years for discharge firearm with intent to wound and six months consecutive for breach of a prohibition order.

[82] In R. v. Owusu, 2022 ONCJ 667 the other offender involved in this shooting was sentenced to a global sentence of 9 years for returning fire after Mr. Neliko shot in his direction. Mr. Owusu had two previous convictions for possession of loaded firearms. He had received a prior sentence of 6 years imprisonment for firearms offences. Bellmore J. in Owusu held that if not for the social context evidence and the harsh conditions of presentence custody she would have imposed a sentence at the high end of the Bellissimo range.

Should the Upper End of the Range be Increased?

[83] In R. v. Lacasse, 2015 SCC 64, para. 57, the Supreme Court of Canada held that sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past. They serve as a guide for the application of all the relevant sentencing principles and objectives. Sentencing ranges are mainly a tool used to ensure parity. Sentencing ranges are neither “averages” nor “straitjackets”. They are historical portraits. The Supreme Court cited the Saskatchewan Court of Appeal in R. v. Keepness, 2010 SKCA 69, para. 24 in holding that: “Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the “range”, as it were, must be expanded.”

[84] In R. v. Friesen, 2020 SCC 9, para. 108, the Supreme Court explained that sentences should depart from established ranges where Parliament raises the maximum sentence for an offence or, society’s understanding of the severity of the harm caused by an offence increases. In an oft-cited passage, the Court stated:

Sometimes, an appellate court must also set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders (R. v. Stone, [1999] 2 S.C.R. 290, at para. 239). When a body of precedent no longer responds to society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencing judges may deviate from sentences imposed in the past to impose a fit sentence (Lacasse, at para. 57). That said, as a general rule, appellate courts should take the lead in such circumstances and give sentencing judges the tools to depart from past precedents and craft fit sentences.

[85] In R. v. Parranto, 2021 SCC 46, para. 22, the Supreme Court affirmed this statement of the law in Friesen. The Court went on to cite the British Columbia Court of Appeal in R. v. Smith, 2017 BCCA 112, para. 36, citing this Court’s trial decision in R. v. Nur, 2011 ONSC 4874, para. 49, in saying that “[i]t is a common phenomenon . . . for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change”.

[86] In R. v. Lynch, 2022 ONCA 109, para. 12, the Court of Appeal for Ontario said the following about the role of trial judges:

Trial judges are on the front lines of the justice system and they will be the first to see if a particular approach is either not working or has become outdated. Measured expressions of that frustration may be a mechanism whereby appellate courts can become aware of the problem and, hopefully, correct it. After all, our approach to sentencing is not, and should not be, fixed in stone. Sentences may increase or decrease as societal and judicial knowledge and attitudes about certain offences change: R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 22. Trial judges are likely to be the first to become aware of such changes. It may also be that the expression of that frustration by trial judges will draw the attention of those in government who may choose to legislate a correction.

[87] I must depart from the sentencing range in Bellissimo if I find the circumstances of this case to be so dissimilar to other previous cases or if I find that the range of sentence “no longer responds to society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders”.

General Sentencing Principles

[88] As the Supreme Court of Canada explained in R. v. Friesen, 2020 SCC 9, para. 4"All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[89] Related to proportionality is the principle of parity: Similar offenders who commit similar offences in similar circumstances should receive similar sentences. As observed in Friesen, parity is an expression of proportionality: "[J]udges calibrate the demands of proportionality by reference to the sentences imposed in other cases."

[90] Section 718 of the Criminal Code, RSC 1985, c C-46 identifies the objectives of sentencing, including denunciation; specific and general deterrence; separation of the offender from society; the rehabilitation of the offender; the promotion of a sense of responsibility in the offender; and an acknowledgement of the harm done to victims and to the community.

[91] Deterrence, denunciation, and the protection of the public are the predominant sentencing objectives for firearms offences. These courts have repeatedly acknowledged the need for exemplary sentences in gun cases. Gun violence in our community is a matter of grave concern. The circumstances of this case are a stark reminder of the pervasive threat posed by gun violence. Residents of this city were placed at grave risk by simply attending a popular shopping mall. As pointed out in the Community Impact Statement, the impact of gun violence extends beyond the immediate physical and psychological harm to the bystanders. Gun violence erodes the sense of security and safety of members of this community.

[92] There are significant aggravating factors in this case. Mr. Neliko not only put his intended victim at risk but also endangered the lives and safety of hundreds of others. Although no one was shot, bystanders were injured physically in the aftermath of the shooting. Many others suffered psychological harm as a result. Mr. Neliko fled the scene and disposed of evidence. The offences were committed in the context of drug trafficking.

[93] There are mitigating factors. Mr. Neliko entered guilty pleas to the offences. He expressed remorse, particularly for the harm caused to the bystanders. I accept that he was genuinely remorseful about the harm caused to Ms. Applebaum. Mr. Neliko is a youthful first offender. He has a very supportive family.

[94] A further mitigating factor is the harshness of the conditions of Mr. Neliko’s presentence custody. The Court of Appeal in R. v. Marshall, 2021 ONCA 344, para. 52 held that particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account in arriving at an appropriate sentence.

[95] I also accept that, as outlined in the Enhanced Presentence Report, Mr. Neliko has experienced anti-Black racism both before and after his incarceration on these charges. He experienced racism in the education system, including being inappropriately streamed into a non-academic stream in high school. He witnessed violence in his community. He was subjected to racial profiling, including police stops when he was very young. This background provides context for his offending conduct and informs his level of moral culpability.

Application of the Principles

[96] I find that the upper end of the range of sentence articulated in Bellissimo and applied since Bellissimo remains responsive to the gravity of serious firearms offences. I also am satisfied that the circumstances of these offences and this offender are not so dissimilar to previous cases that I must depart from the sentencing range.

[97] The circumstances of these offences are extremely serious. The conduct of Mr. Neliko put many people at risk. It was deliberate and profoundly dangerous conduct. The circumstances of the offence and the impact on the victims and the community are aggravating and weigh in favour of an exemplary and significant penitentiary sentence.

[98] The circumstances of Mr. Neliko: his youth, his background, his prospects for rehabilitation and the harsh conditions of presentence custody including the frequency and nature of the strip searches he experienced mitigate the sentence and require the application of the principle of restraint.

[99] As Bellmore J. held with respect to Mr. Owusu, even with the mitigating factors, the profoundly aggravating circumstances of the offences in this case would attract a sentence at the high end of the Bellissimo range if not for the social context evidence and the harsh conditions of presentence custody. I recognize that, unlike Mr. Owusu, Mr. Neliko is before me as a first offender. There are also aggravating factors for Mr. Neliko that were not present for Mr. Owusu. In particular, Mr. Neliko initiated the shooting and he shot with intent to wound.

[100] I have considered all of the circumstances and concluded that a sentence at the high end of the range should not be imposed. I find that a global sentence of sentence of nine years is appropriate.

Conclusion

[101] I therefore sentence Mr. Neliko to 9 years’ imprisonment before credit for pre-sentence custody. That sentence is to be broken down as follows: 8.5 years for discharge with intent, 5 years concurrent for possession of a loaded firearm and 6 months consecutive for breach of a release order.

[102] Mr. Neliko has been in custody since his arrest on these charges. He was credited for 440 days of presentence custody when he was sentenced on other charges. This leaves 835 days of presentence custody on these charges. The Crown has argued that Mr. Neliko should not receive 1.5 to 1 credit for his presentence custody. The Crown points to Mr. Neliko’s institutional misconducts and submits that I should find it unlikely that Mr. Neliko would be granted early release. I cannot make that finding. Although Mr. Neliko has been found guilty of institutional misconducts, only one involved the use of force. There is no basis for me to conclude that his conduct would lead him to be denied even mandatory statutory release after serving two-thirds of his sentence. His misconducts are not so egregious as to support that finding.

[103] Therefore, Mr. Neliko shall be granted credit for pre-sentence custody of 835 actual days, credited at 1.5 to 1 as 1,252 days. The global sentence of 9 years is the equivalent of 3,287 days. This leaves 2,035 days to serve (or just under 5 years and 7 months).

[104] I also make the following ancillary orders: a s.109 order for life; a DNA order on the count of discharge firearm with intent; a forfeiture order for the seized cash and an order under s.743.21 that he not communicate with Ayobami Owusu or Isaac Stafford.

M. Forestell

Released: February 25, 2025