Court File and Parties

Court File No.: CR-24-0061-0000

Date: 2025-09-09

Ontario Superior Court of Justice

Between:

His Majesty the King – and – Donte'a Mitchell

Counsel:

Ms. M. McKay and Mr. Y Rahamim, for the Crown

Mr. S. Agbakwa, for Mr. Mitchell

Heard: August 26, 2025

Reasons for Sentence

Conlan J.

I. The Circumstances of the Offences

[1] Donte'a Mitchell ("Mitchell") has pleaded guilty to and been found guilty and convicted of two offences: (i) manslaughter – he unlawfully caused the death of Robert David McIntosh ("McIntosh") on or about July 11, 2023 at Owen Sound, Ontario, contrary to section 234 of the Criminal Code, thereby committing an offence under section 236(a) of the Criminal Code; and (ii) on or about June 19, 2023, at Sudbury, Ontario and elsewhere in the Province of Ontario, possession of Fentanyl for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

[2] The facts underlying the manslaughter offence are outlined in Exhibit 1 – the Agreed Statement of Fact, and the facts underlying the Fentanyl offence are outlined in Exhibit 2 – the Agreed Statement of Fact.

[3] McIntosh was shot and killed in the very early morning hours on July 11, 2023, inside an apartment in Owen Sound. He was just 17 years old when he was killed.

[4] McIntosh and Mitchell were not from Owen Sound but were in the area to sell drugs. There was a dispute between McIntosh and Mitchell regarding drugs and/or money. Mitchell confronted McIntosh with a firearm, likely a semi-automatic pistol, and a struggle ensued between the two of them. Three shots were fired in quick succession. Two of those shots struck McIntosh, with one of them causing his death after it entered the top of the victim's head.

[5] After the shooting, Mitchell and an accomplice fled the scene, and Mitchell was eventually arrested by the police in Sudbury on August 22, 2023.

[6] It is agreed that, while Mitchell and his accomplice attended at the apartment to confront McIntosh, Mitchell did not attend with the intent to kill the victim.

[7] Prior to the killing of McIntosh, on June 19, 2023, as part of a large drug investigation project, the police stopped a motor vehicle travelling northbound on Highway 69, towards Sudbury. The rear passenger of the car was Mitchell. There were two other occupants of the car. All three were arrested. The car was searched. Police found, among other things, 45.73 grams of Fentanyl, 2.16 grams of crack cocaine, and two cutting agents.

[8] Although the narcotics were found inside a female occupant's bag, Mitchell admits that he was in possession of the items and intended to traffic them in Sudbury.

[9] Four cellular telephones were also seized from the car, including one used exclusively by Mitchell. Electronic communications contained on those devices, specifically those from June 17, 18 and 19, 2023, demonstrate that Mitchell and the two other occupants of the motor vehicle were actively involved in the trafficking of narcotics, including Fentanyl.

II. The Circumstances of the Offender

[10] No presentence report was requested in this matter, however, I know the following from information supplied by defence counsel.

[11] Mitchell comes before this Court for sentencing as a first-offender. He has no prior criminal record or history that the Court is aware of.

[12] Mitchell is currently 27 years old. He would have been two years younger than that when he committed these two offences. He is a Black man. He is single and without any children. He has five half-siblings, two brothers and three sisters, and is the youngest in the family.

[13] Mitchell was raised by a single mother. His father died when Mitchell was only nine years of age. His father had been an absent parent who abused substances and neglected Mitchell. Mitchell's mother remarried when Mitchell was 15 or 16 years old.

[14] Mitchell's mother has some health issues currently, including diabetes and high blood pressure.

[15] Mitchell did not complete high school. His employment history has been in the construction, demolition, and car detailing industries.

[16] Mitchell moved out of his mother's home when he was 18 years old.

[17] Mitchell has a lengthy history of alcohol abuse and smoking. He has been diagnosed with high blood pressure since his arrest in August 2023.

[18] Exhibit 3 is an affidavit in the name of Mitchell. It details his time spent in presentence custody – 750 real days as of September 9, 2025. He was at Central North Correctional Centre from August 22, 2023 to April 3, 2024 and from May 17, 2025 to May 23, 2025. He was at Toronto South Detention Centre from June 1, 2024 to July 30, 2024. He was at Maplehurst Correctional Complex from April 3, 2024 to June 1, 2024 and from July 30, 2024 to May 17, 2025 and from May 23, 2025 to September 9, 2025.

[19] Mitchell has faced overly harsh conditions while in presentence custody, including: (i) extensive overcrowding and triple bunking for at least 178 days while at Maplehurst Correctional Complex; (ii) a lack of programming at all three correctional facilities; (iii) extensive difficulties in speaking with his legal counsel at all three correctional facilities; (iv) numerous lockdowns at all three correctional facilities (including more than 170 lockdowns at Maplehurst Correctional Complex and 96 lockdowns at Central North Correctional Centre); (v) time spent in segregation while at Central North Correctional Centre, due solely to lack of space; and (vi) very poor hygienic conditions, particularly at Maplehurst Correctional Complex and Central North Correctional Centre.

[20] Mitchell was not cross-examined on his affidavit, and the Crown prosecutors take no issue with the content of it, except to observe that Mitchell was the subject of three misconducts while at Maplehurst Correctional Complex.

[21] The official records from the three correctional facilities were also filed by the defence, and there is nothing in those records that is inconsistent with the content of Mitchell's affidavit.

III. The Sentencing Positions of the Crown and the Defence and the Court's Imposition of Ancillary Orders

[22] This Court waives the victim fine surcharges in light of the overall disposition of the case.

[23] The Crown requests the following:

(i) forfeiture order regarding the Fentanyl offence – on consent of the defence and already signed by this Court on the date of the sentencing hearing, August 26, 2025;

(ii) primary DNA order – on consent of the defence and hereby issued by this Court;

(iii) section 109 Criminal Code firearms and weapons prohibition order for 10 years and life as per the two subsections – on consent of the defence and hereby issued by this Court;

(iv) section 743.21(1) Criminal Code order regarding four named persons – on consent of the defence and hereby issued by this Court;

(v) on the manslaughter conviction, 10 years' imprisonment less presentence custody on a 1 real day grossed-up to 1.5 days scale; and

(vi) on the Fentanyl conviction, 3 years' imprisonment, consecutive.

[24] In oral submissions, the Crown, Ms. McKay, focussed on the following cases relevant to the manslaughter conviction.

[25] In R. v. Wong, 2012 ONCA 767, [2012] O.J. No. 5250, the Court of Appeal for Ontario stated the following at paragraphs 11-13.

[11] The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.

[12] These offences called out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term. See R. v. Danvers, [2005] O.J. No. 3532.

[13] The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing. The sentencing judge's reasons note "the real tragedy that the combination of drugs and firearms has caused in the Greater Toronto Area, including York Region".

[26] In R. v. Datta, 2021 ONSC 2136, [2021] O.J. No. 1922, Justice Forestell stated the following at paragraphs 3 and 12-16.

[3] Mr. Datta was found guilty of two counts of trafficking in firearms (Counts 1 and 2); two counts of possessing a firearm for the purpose of trafficking (Counts 3 and 4); possession of proceeds of an indictable offence (Count 6); two counts of possession of cocaine for the purpose of trafficking (Counts 7 and 9) and two counts of possession of fentanyl for the purpose of trafficking (Counts 8 and 10).

[12] The fundamental purpose of sentencing, as set out in the Criminal Code, is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives which include denunciation, deterrence, rehabilitation, the promotion of responsibility and the acknowledgement of the harm which criminal activity brings to our community. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] In offences such as those before me, the paramount sentencing objectives are denunciation and deterrence. Our courts have repeatedly commented on the proliferation of guns in our community and the danger to the community from increased gun violence. The courts have stated that severe and exemplary sentences are required to deter gun violence.

[14] Similarly, denunciation and deterrence are paramount considerations for the offences of possession of crack cocaine for the purpose of trafficking and the possession of Fentanyl for the purpose of trafficking. Fentanyl, in particular, is an extremely dangerous drug that is addictive and deadly.

[15] Firearms offences and drug offences are serious and dangerous when considered independently, and so the combination of the two is a further aggravating circumstance.

[16] Mr. Datta was engaged in a commercial enterprise selling guns and dangerous addictive drugs. He put the lives of others at risk in order to make a profit. The offences committed by Mr. Datta merit a severe sentence.

[27] In R. v. Mohamed, 2021 ONSC 7615, [2021] O.J. No. 6928, Justice Bawden, in sentencing the offender on one conviction for manslaughter and one conviction for second-degree murder, observed, at paragraph 54, that "[o]ne aggravating factor…is the role that drug trafficking played in these homicides".

[28] In R. v. Schaap, 2024 ONSC 7126, [2024] O.J. No. 6000, Justice Carnegie, after reviewing numerous authorities, concluded as follows at paragraph 49: "I am satisfied that the traditional 8-12 year range for firearm related manslaughter is supportable under these circumstances. Indeed, it is arguable that this range can be extended to include regular dispositions of up to 15 years".

[29] In R. v. Adam, 2024 ONSC 2180, Justice Barrett sentenced an offender who shot and killed the 22-year-old victim. Charged with first-degree murder and after a lengthy jury trial, the offender was found guilty of manslaughter. At the time of sentencing, the offender was a 35-year-old Black man with a dated criminal record. After confirming the same 8-12 year sentencing range, Justice Barrett imposed a sentence of 9 years' imprisonment less credit for presentence custody.

[30] In R. v. Al-Rubayi, 2020 ONSC 7416, Justice Thomas imposed a sentence of 10 years' imprisonment, less credit for presentence custody, on an offender who pleaded guilty to manslaughter involving a firearm and illicit drugs and who was, at the time of sentencing, a 22-year-old first-offender. The same 8-12 year sentencing range was confirmed by the Court. One of the chief aggravating factors was that the offender had discharged a handgun on multiple occasions at a party in a busy residential area (paragraph 40).

[31] Finally, in R. v. Johnson, 2022 ONSC 5689, Justice Kelly sentenced an offender found guilty of manslaughter after a jury trial. The victim had been shot in the street during a chance encounter with the offender. The offender had been carrying around a loaded firearm while attending The West Mall to visit with some friends. The offender was a drug-trafficker. He had possessed the firearm in question for four years before the shooting. The shooting occurred in a busy residential area. The offender fled the scene after the shooting. He was 26 years old at the time of sentencing. He did not initiate the altercation on the street but rather reacted to the victim's perceived aggression towards him. Justice Kelly imposed a term of imprisonment of 9 years less credit for presentence custody.

[32] In oral submissions, the Crown, Mr. Rahamim, focussed on several authorities that speak generally about the well-recognized evils of Fentanyl and the very high moral culpability of those who prey on members of the public by trafficking in such an odious controlled substance, including but not limited to the decision of the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, [2021] S.C.J. No. 46.

[33] Mr. Rahamim also filed a helpful sentencing chart which accurately summarizes Ontario jurisprudence that justifies a penitentiary sentence in the range of 29 months, at the very low end, to 8 years, at the high end, in circumstances where the offender pleaded guilty and there was a significant quantity of Fentanyl involved (27.15 to 45 grams, approximately). The case at the very low end of that sentencing range, R. v. Tonkin, 2023 ONSC 2139, involved an offender with no prior criminal record, while the cases at the very high end of that sentencing range, R. v. Disher, 2020 ONCA 710 and R. v. Margerison, 2022 ONCA 211, involved offenders with lengthy and serious prior criminal records.

[34] The defence requests that this Court impose a global sentence, in totality, of 8 years' imprisonment less the appropriate credit for the 750 real days of presentence custody.

[35] Mr. Agbakwa filed numerous authorities relevant to both the manslaughter conviction and the Fentanyl conviction. Without intending to limit the helpfulness of all of the decisions provided, mentioning just two of them will serve to demonstrate Mr. Agbakwa's chief submission, namely, that sentencing ranges are just that, imprecise ranges, and there will be instances where the range is reasonably departed from by the sentencing judge.

[36] The first example is the decision of Justice Forestell in R. v. Young, 2022 ONSC 1143. The offender pleaded guilty to manslaughter with a firearm. At the time of sentencing, the offender was 25 years old and without any prior criminal record. The offender shot and killed a 15-year-old boy during the course of a drug transaction. The offender fired his gun once and only after the victim brandished what appeared to be a firearm of his own. The offender aimed low but severed an artery when the shot struck the buttocks area of the victim, killing him. The sentence imposed was 5 years' imprisonment less credit for presentence custody.

[37] The second example is the decision of Justice Silverstein in R. v. Gordon, 2023 ONCJ 157. The offender pleaded guilty to possession of Fentanyl for the purpose of trafficking. Seized from the offender were 12.07 grams of Fentanyl, 7.02 grams of cocaine, and 30 hydromorphone pills. The offender, at the time of sentencing, was 35 years old and had a prior criminal record which included a conviction for simple possession of a Schedule I controlled substance. Because of some significant mitigating factors, including the offender having experienced a very troubled upbringing after coming to Canada from Jamaica at 9 years of age, the Crown asked for a penitentiary sentence of 3 years. The sentence imposed was a conditional sentence order for 2 years less 1 day, to be followed by probation for 18 months, plus ancillary orders.

IV. The Legal Parameters, the Legal Principles, and the Aggravating and Mitigating Factors in our Case

[38] Due to the use of the firearm, on the manslaughter conviction, Mitchell faces a mandatory minimum penalty of 4 years' imprisonment and a maximum punishment of life imprisonment: section 236(a) of the Criminal Code.

[39] On the Fentanyl conviction, there is no mandatory minimum penalty, and Mitchell faces a maximum punishment of life imprisonment: section 5(3)(a) of the Controlled Drugs and Substances Act.

[40] In my view, the two paramount principles of sentencing that apply to this offender on these facts are denunciation and deterrence, both general and specific. Secondarily, this Court must take into consideration the principle of rehabilitation, as Mitchell is still in his twenties and without any prior criminal history of any kind.

[41] I also agree with defence counsel that this Court must consider the totality principle and must keep in mind that these two Indictments are significantly related to one another, even if it is determined that consecutive sentences are required.

[42] In terms of the aggravating factors in our case, on the manslaughter conviction, I agree with Ms. McKay that they include the following: (i) the fact that Mitchell fired his gun multiple times; (ii) that the shooting occurred inside an apartment, with others present, and in a residential area; and (iii) the fact that Mitchell fled the scene afterwards, providing no assistance to the victim.

[43] On the Fentanyl conviction, I agree with Mr. Rahamim that the aggravating factors include the following: (i) the insidious nature of the controlled substance, Fentanyl; (ii) the sizeable quantity involved, approximately 45 grams; (iii) Mitchell's role in the drug trafficking enterprise, which I would describe as being mid-level; (iv) Mitchell's motivation for committing the offence, pure greed; and (v) Mitchell's use of the female accomplice, a seemingly vulnerable person in her own right, to shield himself from the authorities.

[44] It is also aggravating that Mitchell was transporting the Fentanyl to a distant community in Northern Ontario. Sudbury is not a small community, but it rightfully wants to keep drug traffickers like Mitchell away from infiltrating its neighbourhoods from even larger places to the south.

[45] In terms of the mitigating factors, I agree with Mr. Agbakwa that the major ones here are (i) the guilty pleas, which pleas I accept were entered in the face of genuinely triable issues on both offences; (ii) Mitchell's lack of any prior criminal history; and (iii) the overly harsh conditions that Mitchell has experienced in presentence custody.

V. What is a Fit Sentence for Mitchell?

[46] Sentencing is a highly individualized process.

[47] The judgment of Chief Justice Wagner and Justices Brown, Martin, and Kasirer in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, put it very well at paragraphs 9 through 12, set out below.

[9] This Court has repeatedly expressed that sentencing is "one of the most delicate stages of the criminal justice process in Canada" (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 1). More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors. While the sentencing process is governed by the clearly defined objectives and principles in Part XXIII of the Criminal Code, it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing (Lacasse, at para. 1).

[10] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading "Fundamental principle" (s. 718.1). Accordingly, "[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.

[11] Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parity and proportionality are not at odds with each other. To impose the same sentence on unlike cases furthers neither principle, while consistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence (para. 32). Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must "calibrate the demands of proportionality by reference to the sentences imposed in other cases" (para. 33).

[12] As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed:

Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53]

Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is "committed in unique circumstances by an offender with a unique profile" (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case (para. 58).

[48] In my view, a fit global sentence for Mitchell is neither the 13 years sought by the Crown nor the 8 years suggested by the defence. The former does not give due consideration to the totality principle and the mitigating factors at play here. The latter is just simply too lenient for a man who repeatedly shot and ultimately killed McIntosh and who was seriously involved in the trafficking of Fentanyl.

[49] This Court has decided that a fit global sentence for Mitchell is 10 years' imprisonment less credit for presentence custody.

[50] The 10 years is broken down as follows and is after consideration of the Duncan/Marshall "credit": 8.5 years' imprisonment for the manslaughter conviction, and 1.5 years' imprisonment, consecutive, on the Fentanyl conviction.

[51] There is no basis to impose concurrent sentences here. At the same time, the consecutive sentence on the Fentanyl conviction must be tempered so as not to offend the totality principle.

[52] Credit for presentence custody is calculated as follows: 750 real days grossed-up, each 1 day being equivalent to 1.5 days, equals 1,125 days or 3.08 years.

[53] That leaves a net sentence of imprisonment for Mitchell, from today, of 6.92 years. The Warrant of Committal will express the sentence in days – 2,525 days from today.

[54] To all counsel in this case, I am grateful for your very able assistance.

[55] To Mr. Mitchell, I say that I hope that you live a long and productive life after your release from custody. That is in all of our interests and not just yours.

[56] To the family and friends of Mr. McIntosh, including but not limited to the author of the victim impact statement that was filed on sentencing, I know that this decision will do nothing to change what happened, however, I hope that it serves to bring some finality to the process and will, in that small way, help in your long roads to recovery.

Conlan J.

Released: September 9, 2025