Reasons for Sentence

Court File No.: CR-23-50000708
Date: 2025-07-07
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Jaleem Abdella-Smith

Appearances:
Laura Liscio and Ella Brosch, for the Crown
Craig Bottomley and Alison Shields, Defence Counsel

Heard: June 19, 2025

Released: July 7, 2025

Judge: G. Roberts

Overview

[1] In the early hours of January 18, 2022, Jaleem Abdella-Smith shot Andre Atkinson five times in the stairwell landing of an apartment building in Etobicoke. Three of the shots were lethal, and Mr. Atkinson died within seconds or “low minutes.” Mr. Abdella-Smith was arrested the next day, January 19, 2022, and charged with second degree murder. He testified at his trial, claiming he acted in self-defence, or alternately was provoked. The jury found him guilty of second degree murder.

[2] Section 235 of the Criminal Code mandates a life sentence for murder. In the case of second-degree murder, section 745.4 of the Criminal Code provides that the period of ineligibility for parole may be raised from 10 years, up to 25, as is fit “having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission,” and any recommendations by the jury. The issue on this sentencing is what period of parole ineligibility is fit and appropriate. The Crown says 16 years; the defence says 12 years.

[3] In the circumstances of the offence, the offender, and the jury recommendations, I impose a period of ineligibility of 12 years.

Circumstances of the Offence

[4] Given that this was a jury trial, I must begin by determining the material facts required for sentencing. This is a two-step process. First, I must “accept as proven, all facts, express or implied, that are essential to the jury’s verdict.” Second, I may “find any other relevant fact that was disclosed by evidence at the trial to be proven….” This involves me engaging in my own “independent fact-finding exercise.” In so far as facts are aggravating, I must be satisfied of them beyond a reasonable doubt. In so far as they are mitigating, I need only be satisfied of them on a balance of probabilities: s.724 of the Criminal Code; R. v. Ferguson, 2008 SCC 6, para 17;R. v. Aragon, 2022 ONCA 244, para 106.

[5] There is no dispute about the facts leading up to the shooting. Miguel Calvo and Mohamid Singateh had taken a “car programmer” (a device that could re-program electronic car keys) that Mr. Atkinson used to steal cars and believed belonged to him. Mr. Atkinson wanted it back. Mr. Calvo and Mr. Singateh gave Mr. Atkinson the run around. Mr. Atkinson was frustrated and angry. He threatened Mr. Calvo’s family. In the early hours of January 18, 2022, Mr. Calvo and Mr. Singateh agreed to meet Mr. Atkinson at Mr. Calvo’s building, 2313 Islington Ave, in order to return the car programmer.

[6] Around 2:30 am on January 18, 2022, Mr. Atkinson and Darnel Semple were waiting for Mr. Calvo and Mr. Singateh inside the north stairwell on the fourth floor of the building where Mr. Calvo lived with his family. Mr. Calvo and Mr. Singateh started up the north stairwell around 2:35 am, together with Mr. Abdella-Smith, who they had just picked up.

[7] Mr. Calvo explained that he asked Mr. Abdella-Smith to come to the meeting with Mr. Atkinson because Mr. Atkinson was angry. Mr. Singateh initially did not want to return the car programmer and Mr. Calvo was worried Mr. Singateh might start a problem. Mr. Calvo knew Mr. Abdella-Smith because he was friends with Mr. Abdella-Smith’s younger brother Hakeem. Mr. Calvo was younger than the others, and thought Mr. Abdella-Smith would calm everything down if anything happened.

[8] The surveillance video shows that the meeting in the stairwell lasted about 90 seconds. Exactly what happened during the meeting was the central issue at trial.

[9] Mr. Calvo testified that Mr. Atkinson was very angry. Mr. Atkinson got into their faces, by which Mr. Calvo meant Mr. Atkinson got close and was “saying stuff” (he demonstrated by holding the palm of his hand directly in front of his face). Some pushing and shoving started but Mr. Atkinson did not hit, punch or kick anyone. Mr. Calvo did not have a weapon. Mr. Calvo did not see Mr. Atkinson with a weapon. Nor did he see Mr. Semple or Mr. Singateh with a weapon. Mr. Abdella-Smith pulled out a gun and shot Mr. Atkinson. Mr. Calvo was standing right beside Mr. Atkinson when Mr. Atkinson was shot. Mr. Calvo ran. He turned back and saw Mr. Atkinson fall to the ground clutching his chest. Mr. Calvo heard more shots as he ran down the stairs toward the exit, but could not say how many.

[10] Mr. Semple testified that Mr. Atkinson was talking to Mr. Calvo, but he did not remember what they were saying. After two or three minutes, Mr. Semple heard one of the three men who arrived say “Oh yeah;” the tone was along the lines of “Oh yeah, so that’s what you think.” Mr. Semple believed it was said in anger. One of the three men then brought out a gun and shot Mr. Atkinson in the chest. Mr. Atkinson fell back. Mr. Semple saw the shooter look at him, and Mr. Semple ran up the stairs. Mr. Semple heard 4 or 5 more shots. Mr. Atkinson did not have a gun or any weapon in his hands. He did not remember Mr. Atkinson laying his hands on anyone.

[11] When Mr. Atkinson’s body was rolled in order to remove it, a utility knife fell from the clothing on his upper body on his left side. The knife was folded closed. There was a surface tension to the knife, and you needed to guide it open with your hand or hands. It would not open on its own. Once fully open, the blade locked into place and two hands were required to close the knife (it was necessary to move the locking mechanism aside for the blade to fold up).

[12] Mr. Abdella-Smith testified that he believed he was going into the building to have a smoke with Mr. Calvo. When they reached the fourth floor, Mr. Atkinson and another person were sitting on the stairs just above the fourth-floor landing. Mr. Atkinson told Mr. Abdella-Smith and Mr. Singateh he knew who they were. Mr. Atkinson was very close to them; nose to nose. Mr. Atkinson then started yelling at Mr. Calvo, asking what was going on, saying loudly “you think I am a bitch, giving me the run around; I want my stuff back; you think I am playing around.” Mr. Atkinson then said I am going to kill you guys right now and he pulled out a knife. He was about an arms-length from Mr. Abdella-Smith at the time. Mr. Abdella-Smith said, “oh shit”. He pulled his gun from his pocket, a gun he testified that he always carried with him, and fired. Mr. Atkinson hit the wall (Mr. Abdella-Smith marked the location with an X on exhibit 51), but then tried to come back at Mr. Abdella-Smith. Mr. Abdella-Smith fired again. He was not sure how many times he fired. He was not counting. When Mr. Atkinson stopped moving, Mr. Abdella-Smith ran.

[13] Mr. Atkinson was shot five times. Only one bullet came in on a 90 degree angle, or straight on, the other four were on a downward angle. Three of the shots were lethal, each within seconds to “low” minutes. The forensic pathologist, Dr. Magdeleni Bellis, described the direction the bullet hit the body, and its path inside the body as follows (the numbering does not reflect the order in which the wounds were received, which Dr. Bellis could not comment on; I refer to the wounds by the letter assigned to them in the diagrams made on autopsy (trial Exhibits 49‑50)):

• Wound #1: bullet entered at right jaw at H and lodged just below skin on left shoulder at A. The wound path together with the abrasion collars on H and A suggested the bullet travelled from right to left in a downward fashion. The fact the bullet did not exit the skin, suggests the body was against a hard surface, though Dr. Bellis could not say what surface or what position the body was in. This was a lethal wound.
• Wound #2: entered just below the nose at F and exited left jaw at G. The wound path together with abrasion collars on the entry and exit wounds suggested the bullet travelled from right to left in a downward fashion. It was not a lethal wound.
• Wound #3: entered just left of the centre of the chest at I and exited left of the left shoulder blade at B. The wound path together with the absence of significant abrasion collars suggest the wound travelled from front to back in a slight right to left direction (it exited 4 cm further left than it enters). It was a lethal wound.
• Wound #4: entered just right of left nipple at J and exited in right upper back at C. The wound path together with the abrasion collar suggested the bullet travelled from front to back from left to right in a downward direction (i.e., downward from head toward feet). It was a lethal wound.
• Wound #5: entered just above left elbow on the outside of the arm at D and exited about 3.5 cm lower on the inside of the left arm. The bullet travelled from left to right in a downwards direction (again downward from the head toward the feet). It was not a lethal wound.

[14] The jury could have accepted Mr. Abdella-Smith’s version of events, or had a reasonable doubt about it, and still found self-defence not made out, the intention for murder proven, and at least one element of provocation absent. For example, the jury could have accepted Mr. Abdella-Smith’s version of events, or found it raised a reasonable doubt, but been satisfied beyond a reasonable doubt that he used excessive force, and his response was not reasonable or proportionate, and that he had the intent to kill, and at least one element of provocation was proven beyond a reasonable doubt to be absent.

[15] Given that the jury verdict does not settle the essential factual dispute at trial, I believe I must come to my own independent determination of what happened during the shooting, to the extent the evidence permits. I do not believe Mr. Abdella-Smith. Nor does his evidence raise a reasonable doubt. I reject his evidence. His evidence that he attended 2313 Islington to have a smoke with Mr. Calvo and Mr. Singateh does not make sense when considered in light of his own behaviour and the other evidence, including the following:

• Mr. Abdella-Smith changed out of the jacket he wore earlier in the evening into something plainer and disposable before accompanying Mr. Calvo to meet Mr. Atkinson. I accept Mr. Bottomley’s objection to describing this jacket as non‑descript, given that the name of a moving company that Mr. Abdella-Smith had worked for was written on the back. But the jacket was certainly plainer than the jacket Mr. Abdella-Smith can be seen wearing earlier in the evening. It was also disposable. On his own evidence, he left the jacket at his friend’s house after the shooting. All this to say, I do not believe Mr. Abdella-Smith’s evidence that he changed out of his fancy jacket simply to have a smoke, and prevent his good jacket from getting dirty (or smelly as his counsel submitted). On his own evidence, meeting Mr. Calvo to smoke weed at 2313 was a routine event for him.
• Mr. Abdella-Smith took evasive steps when walking out to meet Mr. Calvo and Mr. Singateh, walking all the way south through his building, then back north through the playground and parking lot instead of simply leaving through the north exit on to Shendale, right by his unit. His explanation that he did not use the north exit because it was blocked by snow does not make sense. He used the north exit just a couple of hours before, both to leave and to return to his unit.
• When the trio arrived at 2313 Islington, Mr. Singateh parked on the street. Mr. Calvo testified that they parked on the street because of the snow in the parking lot, but the surveillance video showed that they parked in the building parking lot earlier in the night. From what I can see from the surveillance video, Mr. Singateh put the hazard lights, suggesting a quick stop.
• There was no real dispute that Mr. Atkinson’s utility knife was never unfolded. The forensic evidence at the scene strongly suggests it never left his pocket. Photographs from the scene show an object of the same shape and size in silhouette inside Mr. Atkinson’s jacket pocket, a pocket first responders likely cut when trying to attach defibrillators to Mr. Atkinson’s chest. No one at the scene saw the knife before Mr. Atkinson’s body was rolled. It was not out with other objects Mr. Atkinson was likely holding, such as the two cell phones he had with him.

[16] I believe the two Crown witnesses about how the shooting happened. The encounter was brief (less than 90 seconds) and stressful, but it occurred in a small space and both Crown witnesses could see the first shot. Mr. Calvo testified that he was standing next to Mr. Atkinson when Mr. Atkinson was shot. Mr. Semple testified nothing obstructed his view of Mr. Atkinson’s interactions with the people in the stairwell. Notwithstanding that Mr. Calvo and Mr. Singateh came from different groups or sides of the dispute, and were not forthcoming about everything they knew, their version of events is similar on the key issues:

• Both agreed that Mr. Atkinson did not do anything physical to anyone.
• Both agreed that Mr. Atkinson did not have a weapon.
• Both saw Mr. Atkinson fall after the first shot (Mr. Calvo said go down; Mr. Semple said fall back.)
• Both fled. Both heard more shots while fleeing.

[17] Neither counsel asked Mr. Calvo whether Mr. Atkinson threatened to kill anyone, and Mr. Calvo did not testify about anything specific that Mr. Atkinson said, beyond that he was “getting in their faces” which he described as being aggressive and talking close.

[18] Mr. Semple testified that he heard one of the men who arrived say “oh yeah” in an angry tone, and then Mr. Atkinson got shot. Mr. Semple was not specifically cross-examined about this evidence (though Mr. Semple did not testify that the shooter said this; he could not identify any of the men except possibly Mr. Calvo.) Mr. Semple did not recall Mr. Atkinson being aggressive and getting in peoples’ faces. Or what was being discussed or why the two groups met.

[19] Other witnesses support Mr. Calvo and Mr. Semple’s evidence about the timing of shots (the pathology left no dispute about the number). Brenda Fleming was awoken by the shots. She was not timing them, but heard a bang, followed by another bang after 1-2 seconds, and then three more bangs after about 4 seconds. Olivia Humenik also heard a pause between the first two shots and a third shot.

[20] The jury’s verdict leaves no doubt that Mr. Abdella-Smith did not shoot Mr. Atkinson in self-defence. I find that Mr. Atkinson was angry and getting in people’s faces, including Mr. Calvo’s face, and Mr. Abdella-Smith’s face. But Mr. Atkinson did not pull out a knife. Rather Mr. Abdella-Smith took the gun he was carrying out of his pocket and shot Mr. Atkinson. Likely in anger, or perhaps because he felt disrespected; I cannot be sure of his motive. What I am sure about is that Mr. Abdella-Smith did not have a lawful basis to shoot Mr. Atkinson, even for the first shot. For whatever unlawful reason, he shot Mr. Atkinson. Mr. Atkinson went down. Mr. Abdella-Smith kept shooting, including after Mr. Atkinson was down, and already rapidly dying.

Jury’s Recommendation

[21] Pursuant to s.745.3, the jury recommended the following periods of parole ineligibility:

• No recommendation (one juror)
• 10 years (9 jurors)
• 20 years (1 juror)
• 25 years (1 juror)

Impact on the Victim and/or Community

[22] Mr. Atkinson was much loved. He was at the heart of a vibrant, loving, close-knit family. His death has devastated them all, leaving a massive hole in the space he used to fill with love, joy, and energy. More specifically, his mother, little sisters Janeil, Daneliyah, Shae, his twin, his sister-in-law, his daughter, and his partner, all provided victim impact statements (VIS) addressing the devastating pain and long-term consequences of losing him. I was struck not only by the depth of the loss, but also by how positive the VIS were in cherishing the far too brief time people had with their beloved “Dre”. Putting these sentiments into words is hard enough. Any summary I do cannot possibly do justice to the VIS. But I want to provide a sense of the loss, and the love and positivity within the family. Mr. Atkinson’s little sister Shae explained:

My Brother Andre was such an amazing person. He was giving, kind, selfless, and very blunt when he needed to be. He was a motivational speaker, someone I looked up to, someone who inspired me to do better. He was full of positive energy. Whenever I needed advice Andre never hesitated, he was always there. Knowing that I will never have any of this from someone I want it from the most has destroyed me.

Growing up, I absolutely idolized my brother. He was a great big brother. I owe so much of who I am to the lessons I learned from and alongside Andre growing up. As the ultimate tomboy, being with and around my brother and his friends was life. My brother instilled an unparalleled level of toughness, strength, determination, and courage in me. Andre and I didn’t have the type of brother-sister relationship where he told me to get away or leave him alone when I was being annoying. And that’s what I loved about him, he always made me feel loved and let me be myself.

My brother’s memory will live on, not just in our hearts but in the collective voice of all those who demand justice due to gun violence.

And Andre if you can hear my voice in this court room today, I just want to say I love you so much and I will never forget you. You will continue to be thought of, celebrated, and loved. I look for you in everything and will continue to honour your name in all blessings that come my way.

[23] Mr. Atkinson’s sister-in-law described the echo of Mr. Atkinson’s absence:

Dre was…[a] steady, kind-hearted, and dependable presence in our lives. He was the kind of person who would give you his last dollar, who made everyone feel welcome, who always found a way to make you laugh — even on the worst days. And now, we live in the silence his laughter used to fill. Since the day he was taken from us, our family has been broken. There are empty chairs at birthdays, awkward silences at holidays where his voice used to be, and an unfillable space in our hearts. His family has to wake up every day to a world without their loved one….

I see the pain in my partner every day — losing a brother in such a violent, tragic way leaves wounds that no time can truly heal. We’ve had to learn how to carry on, even when everything in us feels broken…

Gun violence doesn’t just take a life. It tears through families, through communities, and through the hearts of everyone left behind. We live with that every single day. And the pain isn’t just emotional, it changes how we see the world. It makes us feel unsafe, angry, lost. I see the impact of his loss everywhere. In the way family gatherings feel quieter now. In the moments we reach for the phone to call him, only to remember he’s not there anymore. His absence is constant. It follows us. It hurts in ways I didn’t even know were possible. We lost more than just a relative. We lost a piece of our family’s soul. A future that included him. The memories we should still be making….

Andre, I’m so sorry that we couldn’t protect you. I’m sorry your story ended this way — violently, suddenly, unfairly. But I promise, you will not be forgotten, your name, your smile, your heart — they live in our memories and in the way we carry you with us every single day. I will speak your name. I will honor you. I will make sure your life is remembered for how you lived, not just how you died….

Circumstances of the Offender

[24] Mr. Abdella-Smith was born on December 12, 2002. He had just turned 19 at the time of the offence. He is currently 22.

[25] Mr. Abdella-Smith grew up in the Jane/Finch and Rexdale areas of Toronto with his mother and six younger brothers and sisters. His father was never part of his life, and unfortunately died while Mr. Abdella-Smith was in custody.

[26] Mr. Abdella-Smith helped look after his siblings, including cooking meals and helping with their homework, and helped his mother with money. He has been working since he was 12 – first selling chocolate, then weed (beginning when he was 13 or 14), then cocaine (beginning when he was 16 or 17). He moved to cocaine because it was more lucrative. He made $50,000 in a month selling cocaine. He also worked as a mover, but got laid off during the COVID-19 pandemic.

[27] When he was selling chocolate, he was robbed at gun point. It was traumatic. He told his mother and they called the police and made a statement. When he was 16 or 17 he was walking with a group of friends when someone opened fire on them. It made him scared, and he felt he had to protect himself. In 2021, Mr. Abdella-Smith bought a gun for his protection (from his friend – the same friend he stayed with after killing Mr. Atkinson). Mr. Abdella-Smith testified that he carried his handgun with him everywhere. At home he kept it under his bed or under his pillow. He was not afraid it would go off accidentally. He knew how to use it, and the trigger had to be pulled for each shot fired.

[28] When Mr. Abdella-Smith was arrested on January 19, 2022, he was carrying the handgun he used to kill Mr. Atkinson. It was fully loaded with an ammunition magazine containing 10 cartridges. Police found additional ammunition for the gun when they searched Mr. Abdella-Smith’s home around the time of his arrest. When he testified, Mr. Abdella-Smith admitted that he re-loaded the gun after shooting Mr. Atkinson.

[29] Mr. Abdella-Smith knew Mr. Calvo through his younger brother Hakeem. He knew Mr. Singateh through Mr. Calvo. He hung out with them both, playing basketball with Mr. Calvo, and chilling. He met Mr. Atkinson once briefly, through Mr. Calvo, a few months before the shooting (Mr. Calvo and Mr. Atkinson were in a car, and pulled over and said hello to Mr. Abdella-Smith. I note from the VIS that it appears that Mr. Abdella-Smith’s younger brother Hakeem was friends with Mr. Atkinson.)

[30] Defence counsel filed 17 good character letters in relation to Mr. Abdella-Smith, including from longtime friends, his mother and siblings, extended family, long-time neighbours, a former coach, and youth workers who taught him or worked with him. The letters show that Mr. Abdella-Smith continues to have the support of his family and at least some members of his community.

[31] The letters also show the pressure on Mr. Abdella-Smith growing up the eldest of six kids, in poverty, with a working mother and no father. Notwithstanding the hardships he faced, Mr. Abdella-Smith had significant successes: he graduated from high school with his cohort, and is consistently described as a good, capable student; he excelled at basketball; he inspired the loyalty and respect of friends and at least some of his teachers. I agree with defence counsel that a theme throughout the letters is that Mr. Abdella-Smith is good natured, kind, and hard-working. Unfortunately, at the time of murder, he was working at the wrong thing (selling cocaine).

[32] Mr. Abdella-Smith chose to address the court prior to the passing of sentence. He apologized to Mr. Atkinson’s family, and noted that if he could take it back, he truly would.

[33] Mr. Abdella-Smith has no criminal record.

[34] The Crown filed institutional records of misconduct by Mr. Abdella-Smith while he has been in custody awaiting trial. More specifically, Mr. Abdella-Smith was found guilty of misconduct in relation to four incidents of fighting. I do not know anything about the circumstances of the fights. I do know that jail is a rough, difficult place. Without more information I do not place much, if any, weight on these misconducts.

Range of Sentence for Second Degree Murder

[35] Second degree murder is punishable by a mandatory life sentence, without eligibility for parole for a period between 10 and 25 years. The sentencing judge must order the period of parole ineligibility based on “the character of the offender, the nature of the offence and the circumstances surrounding its commission,” and any recommendations by the jury: s.745(c), 745.4 of the Criminal Code.

[36] In R. v. Hayles-Wilson, 2018 ONSC 4337, para 19 (upheld 2022 ONCA 790), Justice Code divided the cases addressing parole ineligibility for second degree murder involving a handgun into three categories:

• At the bottom end of the range are cases where a 12 year parole ineligibility period has been imposed. These involve circumstances such as an impulsive shooting by someone licensed to own his gun; less public venues for the shooting; youthful offenders; no criminal record; good prospects of rehabilitation; the offence was out of character, and/or the offender had changed and gained insight into his prior behaviour; a unanimous jury recommendation of the minimum ten year parole ineligibility period: see e.g. R. v. Maciel, 2007 ONCA 496; R. v. Paredes, 2014 ONCA 910; R. v. Lewis, 2012 ONSC 2488.
• In the middle of the range are cases where parole ineligibility periods of 14 to 16 years have been imposed. These involved circumstances such as multiple shots fired in a public place; multiple victims; elements of impulsiveness to the offence, including provoking behaviour by a victim; motiveless, impulsive and senseless shootings; shootings arising from a “a definite plan” to “shoot someone” though not necessarily kill them (Monney); accused routinely carried a loaded handgun; offender was a “committed gangster”; youthful offenders with minor records; youthful offenders with relatively serious prior criminal records, including firearms prohibitions; some prospects for rehabilitation: see e.g. R. v. Danvers, supra; R. v. Grant (2016), C.C.C. (3d) 514 (Ont. C.A.); R. v. Doucette, 2015 ONCA 583; R. v. Monney, supra; R. v. John, 2011 ONSC 3313; R. v. Stewart.
• At the top end of the range are cases where parole ineligibility periods of 18 to 22 years have been imposed. These involve circumstances such as premeditation; planning and preparation; shots in the double-digits with a semi-automatic handgun; multiple victims or serious risk to multiple victims, including innocent bystanders; lengthy criminal records for violence, including prior shootings; an offender “firmly entrenched in the criminal lifestyle”; a gang member; no possibility of rehabilitation: see e.g. R. v. Weese, 2016 ONCA 449; R. v. Chambers, 2018 ONSC 2070; R. v. Belic (2008), 76 W.C.B. (2d) 508 (Ont. S.C.J.); R. v. Sarrazin, 2000 Carswell Ont. 5078.

[37] The range of sentence serves as a guide for the application of the relevant principles and objectives of sentencing. But it is only a guide. Ultimately, a sentence must be proportionate to the particular circumstances of the offence, including its objective seriousness (as suggested by the maximum penalty and the sentencing range), its subjective seriousness (the particular circumstances in which it was committed), and the circumstances of the offender: s.718.1 of the Criminal Code; Friesen, at paras. 34, 37-38, 96-97, and 108-114.

Principles of Sentencing

[38] The principles of sentencing are now largely codified in ss.718, 718.01-04, and 718.1-.201 of the Criminal Code. Though some principles still come from the common law.

[39] As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence. In all instances, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. There is no dispute that the most important principles in this case are general deterrence and denunciation.

What is a Fit Sentence in All the Circumstances?

[40] I will begin by considering the circumstances of the offence, both aggravating and mitigating, and then do the same respecting the circumstances of the offender. Finally, I will consider what is a fit and appropriate sentence in all the circumstances.

[41] Mr. Abdella-Smith shot Mr. Atkinson at close range in a public place with an illegal handgun. Both counsel agree that these circumstances alone bring the offence into the category of cases discussed by Justice Code in Hayles-Wilson where the bottom of the range is 12 years. Both counsel also agree that carrying a loaded hidden handgun in a public place with the obvious purpose of using it means general deterrence and denunciation must be emphasized. There is no dispute that Mr. Abdella-Smith’s conduct requires an exemplary sentence. However, the circumstances of this case are far from the worst sort of shooting in the hierarchy described by Justice Code. It took place at 2:30 in the morning in a confined space with no one but the participants in the dispute present. Fortunately, no one besides Mr. Atkinson was hurt.

[42] All five shots were fired at close range. Three were lethal. At least one was fired from a superior position, likely while Mr. Atkinson was on the ground. As Mr. Atkinson’s mother vividly put it in her VIS, Mr. Abdella-Smith “over-killed” Mr. Atkinson. As violent and aggressive as the shooting was, however, it appears impulsive. There was no planning, preparation, or premeditation. Indeed, it was Mr. Calvo’s evidence that he had asked Mr. Abdella-Smith to come to the meeting with Mr. Atkinson because Mr. Abdella-Smith was level-headed and Mr. Calvo believed he could calm the situation down if things got out of hand. Mr. Atkinson was very angry and getting in Mr. Calvo’s face, and Mr. Abdella-Smith’s face. As best I can tell, Mr. Abdella-Smith lost it.

[43] Turning to Mr. Abdella-Smith’s character and circumstances, it is very aggravating that Mr. Abdella-Smith accompanied Mr. Calvo to the meeting with Mr. Atkinson armed with a loaded, illegal handgun. His evidence that he took a loaded illegal handgun with him everywhere was extremely aggravating. This case is yet another tragic example of the dangers of possessing loaded illegal handguns in public.

[44] Mr. Abdella-Smith’s young age is a powerful mitigating factor. He turned 19 about a month before the shooting. The fact that he is the eldest of 7 children, who he often looked after, may make him seem older than he was. But he was young.

[45] Mr. Abdella-Smith has no criminal record. This is an important mitigating factor, but its significance is diluted by the fact that, on his own evidence, he was earning his living selling cocaine, and carried a loaded handgun at all times for his own protection. While he had worked as a mover in the past, that job ended with the COVID-19 pandemic. At the time of the shooting, he had no legal means of earning money. He was a cocaine dealer. On his own evidence he was a busy one, earning $50,000 a month.

[46] Mr. Abdella-Smith has good rehabilitative potential. He graduated high school with his cohort. According to his reference letters, he is a capable student and did well, notwithstanding he played basketball and had to look after his younger siblings. Katherine M, a youth worker in his school, described Mr. Abdella-Smith as follows:

Jaleem was always one of the brightest students in the summer course and I instantly could see such potential in him. He was part of the basketball team and was considered one of the star players. He had such a fun, caring, gentle personality that demonstrated immense respect to not just staff but other students. Even when there were moments where he needed to be held accountable for any negative behaviours, he was good at receiving constructive feedback and easy to do so from people he felt safest with….

As I transitioned out of the program, Jaleem was among the young people that I truly felt would go on to bigger and better things in his life, and someone who would get there with the right supports around him. He had never been involved in things that some other students were involved in that would have led down more severe negative behaviours. When I knew him, Jaleem was the kind of young leader that would inspire others and empower his peers around him just through his ability to role model these qualities….

[47] Mr. Abdella-Smith’s difficult background cannot diminish the seriousness of this offence, or change the predominant role of general deterrence and denunciation in this sentencing, but I believe it goes some distance toward explaining why he had a loaded handgun in his pocket in the stairwell. The illegal handgun lies at the heart of this tragedy. If it was not in Mr. Abdella-Smith’s pocket when he accompanied Mr. Calvo to meet Mr. Atkinson, I do not believe there would have been a murder. Mr. Atkinson would still be alive. While it is a significant aggravating factor that Mr. Abdella-Smith chose to go out in public in Toronto with a loaded handgun concealed in his pocket, it is important to consider the circumstances which lead him to do this in assessing his moral blameworthiness. He had been a victim of violence, his opportunities were constrained by crushing poverty, significant family responsibilities, the lack of a father figure or support, and systemic anti-Black racism. Again, none of these things are an excuse or lessen the harm he caused or the seriousness of carrying a loaded concealed handgun around town. But I think they do lessen his individual moral blameworthiness to some degree. They also highlight the continued importance of restraint and rehabilitation, which are already in play because of his youthfulness and lack of a criminal record: R. v. Morris, 2021 ONCA 680.

[48] I agree with the Crown that the pre-Morris range cases are still good law. I do not understand defence counsel to suggest otherwise. Morris was not a sea-change but a specific articulation of the well-established principle that a sentencing judge must consider an accused’s background where it played a role in the commission of the offence, see e.g. R. v. Hamilton, paras 133-142. As Justice Durno put it in R. v. Bennett [2003], O.J. No. 3218 (S.C.J.) (quoted by Justice Doherty with approval in R. v. Hamilton, at para. 141):

The offender's background is always a relevant factor on sentencing. A sentence must be appropriate for both the offence and the offender. A person with a disadvantaged background, who has been subjected to systemic prejudices or racism, or was exposed to physical, sexual, or emotional abuse, may receive a lower sentence than someone from a stable and peaceful background, where the offence is in some way linked to the background or systemic factors. The relevant factors in one person's background will be case specific. A single factor will rarely be determinative.

[49] Mr. Abdella-Smith has been in custody since his arrest on January 19, 2022, a total of 3 years, 5 months, and 20 days (or 1267 days), roughly split between the TSDC and the TEDC (he was initially at the TSDC but moved to the TEDC on October 31, 2023). His time at both institutions has been difficult. His time in custody began during the COVID-19 pandemic, a time when pre-sentence custody was notoriously difficult (including due to lock-downs, difficulty even speaking with counsel and friends and family, and the stress of communal living during a highly contagious pandemic). His pre-sentence custody has continued to be plagued by lock-downs, primarily due to staff shortages. In total, he has spent approximately a third of his time in pre-sentence custody in lock-down. In addition, while at the TEDC he has been triple-bunked for 132 days; he was the man on the floor for 99 of those days. The difficult conditions of pre-sentence custody have taken a toll on Mr. Abdella-Smith’s mental and physical health (as described in his affidavit).

[50] Mr. Abdella-Smith is deemed to have begun serving his sentence on the day of his arrest thus there is no Summers credit (see s.746 of the Criminal Code). However, the particularly harsh conditions of presentence custody are a collateral consequence, making the sentence more severe, and I take them into account as a mitigating circumstance: R. v. Marshall, 2021 ONCA 344; R. v. Menezes, 2023 ONCA 838; R. v. Lamba, 2024 ONCA 778, paras 18-25. Like any mitigating circumstance, or collateral consequence, it cannot reduce the sentence below what is required for a fit and proportionate sentence in all the circumstances.

[51] I find this a difficult case because many of the circumstances pull both ways. While I agree with the Crown that there are features of this case that are similar to the mid-range of cases summarized by Justice Code in Hayles-Wilson, and described in further detail by the Crown in submissions, when I consider all the circumstances, I am satisfied that a period of 12 years of parole ineligibility is fit and appropriate.

[52] I make the following ancillary orders:

• a s.109 firearms/weapons prohibition for life;
• a DNA order (murder is a primary designated offence under 487.051);
• a non-communication order with members of Mr. Atkinson’s family while in custody pursuant to s.743.21.

[53] I am required to consider the victim fine surcharge. While Mr. Abdella-Smith’s evidence that he was making $50,000 per month as a cocaine dealer suggests it may be appropriate, I am mindful that he has been in pre-sentence custody for over 3 years, will continue to be in custody for a long time, and comes from poverty. In the circumstances, I believe a victim surcharge would be unduly harsh, and I do not impose it.

G. Roberts
Released: July 7, 2025