Reasons for Sentence

Court File No.: CR-25-30000061-0000
Date: 2025-07-18
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Emmanuel Kitenge

Appearances:
Jason Gorda and Serge Michel Eta-Ndu, for the Crown
Adele Monaco and Victoria Palermo, for Mr. Kitenge

Heard: February 5 and June 20, 2025
Released: July 18, 2025
M. Forestell

Overview

[1] Mr. Kitenge entered guilty pleas on February 5, 2025, to the offences of manslaughter and failing to stop for police. Sentencing submissions were made on June 20th and the case was adjourned to today for sentencing.

Circumstances of the Offence

[2] The circumstances of the offence are set out in an Agreed Statement of Facts.

[3] On June 8, 2022, Mr. Kitenge drove three individuals to the area of 3847 Lawrence Avenue East. Those three individuals approached the victim, Javonte Daley, and shot and killed him. The three individuals then ran from the area. Mr. Kitenge picked them up and drove them away from the shooting. Police responded to calls about the shooting and a police officer in a marked cruiser observed the vehicle driven by Mr. Kitenge. The police attempted to follow and stop the car, but Mr. Kitenge turned into oncoming traffic and drove away at a high rate of speed. After evading the police, Mr. Kitenge and the others drove to Pickering and abandoned the car they were driving.

[4] The victim, Mr. Daley, was shot 12 times. At the scene of the shooting there were 31 cartridge casings found by the police.

[5] Mr. Kitenge admits that when he drove the three other individuals to the area of the shooting, he was aware that they possessed loaded firearms and that there was a plan to attend the area and use the firearms. He admits that it was foreseeable that a person would be seriously harmed or killed.

Victim Impact

[6] The victim, Javonte Daley, was only 24 years old when he was killed. He came from a loving family that has been shaken by his violent death. Javonte Daley is described in the Victim Impact Statements as a kind, loving, and caring young man. He was a role model and mentor to his siblings. He was loved and respected by his family, fiancée, and friends.

[7] The violent death of Javonte Daley has had a lasting impact on his family and friends. They continue to struggle with loss and grief. I have taken into consideration the impact on the family and friends of Mr. Daley in reaching a decision on sentencing while recognizing that no sentence I impose will compensate them for their loss.

Circumstances of the Offender

[8] I have carefully considered the circumstances and background of Mr. Kitenge.

[9] Mr. Kitenge is now 22 years old. He was 19 years old at the time of these offences. He has no criminal record. Mr. Kitenge was born in Toronto. Both of his parents emigrated to Canada from the Democratic Republic of Congo. Mr. Kitenge’s parents separated when Mr. Kitenge was 11 years old. His father was physically and verbally abusive to Mr. Kitenge’s mother and to Mr. Kitenge. His mother separated from his father several times before the final separation when Mr. Kitenge was 11. When Mr. Kitenge was four years old, his mother left but took only the two youngest children and left Mr. Kitenge and his two older siblings with their father. Mr. Kitenge’s brother reported that most of their father’s abuse was directed at Emmanuel Kitenge. This included humiliation and beatings with a belt for things like not understanding homework.

[10] The family had to move often, and Mr. Kitenge had to change schools. He struggled academically. His early academic difficulties were primarily reported to his father. No steps appear to have been taken to assess Mr. Kitenge’s academic issues. He was eventually expelled in grade 12 for fighting.

[11] Since his incarceration, Mr. Kitenge has completed his high school equivalency and is enrolled in a college certificate course in Business Fundamentals.

[12] Mr. Kitenge’s mother works as a disability case manager. All of his siblings are enrolled either in college or university.

[13] Mr. Kitenge has no employment history. His brother has offered him a position working for his basketball training camps when he is released. A friend has also offered to train him to work as a mechanic.

[14] Mr. Kitenge is not part of a gang but has friends with ties to gang activity. At age 16, he was shot while in the company of those friends. He experienced depression after he was shot.

[15] Mr. Kitenge has been in custody for 1,095 days or three years. He has been housed three to a cell in a cell meant for two men for most of that time. The conditions of his detention were extremely harsh.

[16] Since his incarceration, in addition to his academic achievements, Mr. Kitenge has completed several skills education workshops including Managing Stress, Supportive Relationships, Anger Management, Thoughts to Action, and Substance Use. He has also engaged with the organization Brighter Dayz which offers programming directed at assisting offenders to reintegrate into society. He has completed workshops on Self-Esteem, Goal-setting, Anti-criminal Thinking and Self-accountability. The executive Director of Brighter Dayz described Mr. Kitenge as kind, cooperative and eager to learn self-control and live a pro-social life.

[17] The Pre-sentence Report describes Mr. Kitenge as suitable for community supervision.

Positions of the Parties

[18] The position of the Crown is that the appropriate global sentence is nine years’ imprisonment before credit for presentence custody. The Crown also seeks a driving prohibition for two years for the failure to stop for police.

[19] Mr. Kitenge submits that a sentence of six years’ imprisonment is appropriate before credit for presentence custody. The defence took no position on the driving prohibition.

Law and Analysis

[20] In determining the sentence in this case, I have considered the principles and objectives of sentencing. The fundamental principle of sentencing set out in s. 718.1 of the Code is that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] Denunciation and deterrence are generally the predominant sentencing objectives in sentencing for manslaughter. The killing of another person by the commission of an unlawful act must be strongly denounced.

[22] However, rehabilitation remains a relevant consideration. As Chief Justice Wagner wrote in R. v. Bissonette, 2022 SCC 23, “The objective of rehabilitation is intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re‑enter society.”

[23] In arriving at an appropriate sentence, I must consider the aggravating and mitigating factors. There were aggravating factors in this case: the use of firearms in a residential area, the level of planning, the dangerous nature of the driving to evade police and the profound impact of the offence on the victim’s family.

[24] There are also mitigating factors: Mr. Kitenge entered a guilty plea; he appears to be genuinely remorseful for his participation in the offence; he has taken significant steps towards rehabilitation; he has considerable family and community support; and he is a young first offender.

[25] The range of sentences imposed in manslaughter cases is very broad because manslaughter can be committed in a broad range of circumstances. (R. v. Creighton, para 86)

[26] If a firearm is used in the commission of the offence of manslaughter the mandatory minimum sentence is four years’ imprisonment.

[27] Schreck J., in R. v. Smith, 2022 ONSC 3800, para 26, described three broad ranges of sentence for manslaughter: a low range of six to eight years, in circumstances where, for example, the accused was unaware of a firearm or where the offender was a youthful first offender; a mid-range of eight to 12 years, where there are significant aggravating factors such as the use of a firearm, a vulnerable victim, or brutal violence; and a higher range of 12 to 15 years, in cases where several serious aggravating factors are present such as a serious record of violence and planned violence.

[28] In R. v. Kwakye, 2015 ONCA 108, a youthful first offender who participated in a home invasion robbery knowing that his accomplice had a gun was sentenced by the trial judge to 10 years. The Court of Appeal reduced the sentence to seven years because of the lower level of culpability and because of the rehabilitative potential of the offender.

[29] In R. v. Ingram-Piruzevski, 2019 ONSC 4470, Fuerst J. imposed a sentence of seven years’ imprisonment on a youthful first offender who participated in a drug deal while armed. His accomplice stabbed the victim to death. The offender in that case was remorseful and entered a guilty plea at an early opportunity.

[30] In R. v. Araya, 2015 ONCA 854, the accused was a youthful first offender with good prospects for rehabilitation who participated in a robbery where the victim was shot. He was not the shooter. He was found guilty after trial of manslaughter and was sentenced to 8 years imprisonment. The Court of Appeal reduced that sentence to six years, noting his youth and rehabilitative prospects.

[31] The circumstances of Mr. Kitenge and the circumstances of his offences are similar to those in Araya, Kwakye and Ingram-Piruzevski where the offenders were sentenced to six to seven years imprisonment. Additional mitigating factors in the case of Mr. Kitenge are his very difficult childhood and the extremely harsh conditions of his pre-sentence custody.

[32] Mr. Kitenge’s involvement in the offences, knowing that the individuals he drove were armed and intended to use their guns, places his culpability higher than a person who participates in a crime not knowing about the presence of firearms or the intention to use them. There is a need for the courts to strongly denounce gun violence. Even for a youthful first offender, the sentence must be one that conveys society’s abhorrence of gun crimes. The principle of restraint, however, requires that I impose the lowest sentence possible for a youthful first offender that is consistent with the other sentencing principles.

[33] I have carefully considered Mr. Kitenge’s prospects for rehabilitation. I find that Mr. Kitenge has shown that he has very good prospects for rehabilitation. He has shown insight into his conduct and a strong desire to live a prosocial life after he serves his sentence. He has done this while experiencing harsh conditions of detention.

[34] I find that the appropriate sentence in all of the circumstances is a sentence of 6.5 years less one day, before credit for presentence custody. This will leave a sentence of two years less one day to serve. Because of the length of the sentence, I can and will place Mr. Kitenge on probation. I order Mr. Kitenge to comply with a probation order for three years following his release from custody.

Conclusion

[35] For these reasons, for the offence of manslaughter I sentence Mr. Kitenge to a period of imprisonment of 6.5 years, less one day before credit for time spent in custody of three years credited at 1.5 to 1 or 4.5 years.

[36] After credit, the remaining sentence to be served is two years less one day. This will be followed by a period of three-years’ probation. In addition to the statutory terms, the conditions of the probation will be that he report to a probation officer, take such counselling as is recommended by the probation officer and sign any releases necessary for the probation officer to monitor his participation, have no contact with his co-accused and have no contact with any member of the family of Javonte Daley.

[37] The offence of failing to stop for police was part of the same transaction and I sentence Mr. Kitenge to a concurrent period of imprisonment for nine months.

[38] There will be a s. 109 order prohibiting Mr. Kitenge from possession of any firearm, other than a prohibited or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive device for ten years and from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[39] Manslaughter is a "primary designated offence" pursuant to s. 487.04, the section of the Criminal Code, RSC 1985, c C-46 dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Mr. Kitenge provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.

[40] There will be a non-communication order under s.743.21 prohibiting Mr. Kitenge from having any contact with his co-accused and prohibiting any contact with any member of the family of Javonte Daley.

[41] The Crown also applies for a driving prohibition for two years. Mr. Kitenge’s manner of driving and evasive tactics on the road are of concern. I find that a driving prohibition is appropriate, but I am satisfied that a driving prohibition of one year is sufficient and I make that order.

M. Forestell
Released: July 18, 2025