Court File and Parties

Court File No.: CR-24-10000229 Date: 2025-09-22 Ontario Superior Court of Justice

Between: His Majesty the King and Ryan Andrews

Counsel:

• Karolina Visic and Andrew Gibbons, for the Crown
• Sherif Foda and Zaire Puil, for Ryan Andrews

Heard: September 2 and 22, 2025

Before: Boucher J.

Sentencing Reasons

1. The Offence and Conviction

[1] Ryan Andrews committed second-degree murder by causing Gabriel Del Castillo Mullally's death. He struck Mr. Del Castillo Mullally with his car and drove over him. The events occurred on February 5, 2023, in the east-end of Toronto, after closing time at an after-hours bar. Mr. Andrews admitted causing Mr. Del Castillo Mullally's death but denied that he intended to kill him, claiming instead that it was an accident and a manslaughter. The Crown argued the actions constituted planned and deliberated first-degree murder. In the alternative the Crown argued that it was second-degree murder because Mr. Andrews intended to kill either Mr. Del Castillo Mullally, or that he intended to kill a third-party but accidentally killed the victim while having the intention to murder the other. The jury returned a verdict of second-degree murder. These reasons are the reasons for the court's sentencing decision on the charge of second-degree murder.

Sentencing Circle Request

[2] The sentencing hearing proceeded on September 2, 2025, and September 22, 2025. As part of the sentencing hearing, the defence also made a request that the court convene a sentencing circle. The court dismissed the defence request in an oral decision read by the court on September 22, 2025. I include as part of this decision those reasons read by the court. I will not re-read those reasons out loud, as contained in paragraphs 3 to 18 below.

[3] Mr. Andrews requested that the court consider holding a sentencing circle as part of the sentencing hearing as a culturally appropriate way to further the sentencing principle related to Mr. Andrews rehabilitation.

[4] There are no Criminal Code or other statutory or rule-based provisions governing sentencing circles. Sentencing circles are a discretionary procedure governed by the common law, a mode of procedure inspired by some indigenous communities' historical practices, although not all communities used circle models for dispute resolution or sanction. See Jonathan Rudin, Indigenous People and The Criminal Justice System, 2nd edition, Toronto, Emond Publishing, July 2022, at Chapter 8 "Sentencing Circles", pp. 288-289.

[5] There is no binding caselaw in Ontario about sentencing circles. In the early adoption of sentencing circles, most of the sentencing courts faced with such requests relied on jurisprudence from Yukon and Saskatchewan. In particular, the case of R. v. Joseyounen, has provided guidance that the courts have found to be useful. That case set out the following list of criteria used by the judges presiding in the northern region of that province in deciding whether to order a sentencing circle:

(1) The accused must agree to be referred to the sentencing circle.

(2) The accused must have deep roots in the community in which the circle is held and from which the participants are drawn.

(3) That there are elders or respected non-political community leaders willing to participate.

(4) The victim is willing to participate and has been subjected to no coercion or pressure in so agreeing.

(5) The court should try to determine beforehand, as best it can, if the victim is subject to battered spouse syndrome. If she is, then she should have counselling made available to her and be accompanied by a support team in the circle.

(6) Disputed facts have been resolved in advance.

(7) The case is one in which a court would be willing to take a calculated risk and depart from the usual range of sentencing.

[6] No courts consider those criteria, or any other criteria, as binding; rather, such factors are helpful guidance. Courts have adapted those criteria to the circumstances of their given case. Examples of particularization, flexibility, and the convening of smaller, more targeted sentencing circles, can be seen in R. v. M.S., 2025 ONSC 2688; R. v. Francis Simms, 2017 ONCJ 402, R. v. McGill, 2017 ONCJ 168.

[7] A court should keep in mind that, within our current legal framework, a sentencing circle has certain limitations. For example, a sentencing circle could not dictate the outcome of the sentencing. That is because sentencing judge is required by law to impose a fit sentence given all the applicable principles of sentencing, a duty that cannot be delegated to third parties. Time and resources considerations may also impact the court's decision whether or not a sentencing circle could be held.

[8] A court considering whether to hold a sentencing circle should also consider why the request is being made, and what is put forward as the intended purpose of the sentencing circle in the circumstances. In so considering, the court should be mindful that a sentencing circle might have intrinsic value for indigenous offenders and communities, that conducting a sentencing circle in and of itself may signal values of respect for cultural identity and traditions, and of providing direct community opportunities for both reproachment of offending behaviours, and for extending support for reintegration. Sentencing circles, in some cases, could be a valuable, culturally respectful approach to use alongside the legally required sentencing hearing, allowing greater opportunities for the court to receive information relevant to the task, information about the accused, the victim, and the community than might otherwise be available through a traditional sentencing hearing. In certain situations, by doing a sentencing circle, a court might be better equipped to impose a fit sentence for an indigenous offender. In some cases, it might allow the court to better apply principles of restorative justice, and the principles in s.718.2(e) of the Code related to indigenous offenders, possibly also allowing for a sense of healing for the participants and for the promotion of a sense of responsibility in the offender.

[9] In this case, the defence says they are making the request to further the principles of rehabilitation, to give Mr. Andrews a good start to his sentence, along the path to rehabilitation. I agree that there could be some rehabilitative benefit to conducting a sentencing circle. It could potentially serve some restorative related principles, by signaling respect and dialogue, and it could allow Mr. Andrews and his family members to have an additional form of information input to the court, in a differently structured manner. A sentencing circle could assist Mr. Andrews towards a form of personal healing and reconciliation with the outcome of the trial.

[10] A sentencing circle could assist in connecting him with his community. While Mr. Andrews might not have deep community roots in the Toronto indigenous community, he nonetheless has a circle of support from family members who could potentially contribute to a sentencing circle. The lack of "deep community roots" is not a governing factor here. The urban setting far from his traditional community, combined with the general cultural disruptions that have been a feature of Mr. Andrews's life, stemming from intergenerational traumas and other factors relating to his indigenous identity and personal circumstances apply. The candidates he has proposed for the sentencing circle also include the elder from Aboriginal Legal Services. All the people proposed could potentially create the sense of community of responsibility necessary for a successful sentencing circle and would be potential sources of relevant information about Mr. Andrews' character and background, about what supports might be available for him, and about their views towards promoting healing and restoration.

[11] While those factors support granting the request for a circle, several other important factors weigh against granting the request.

[12] First, the victim's family members do not wish to participate in a sentencing circle. They are refusing because they believe Mr. Andrews gave untruthful testimony maligning their son and that he is not taking full accountability for his actions in maintaining that narrative. They believe their healing process would be harmed with a sentencing circle. Even though victim participation is not an absolute requirement in the analysis, often it is highly weighted because of the valuable accountability that could be achieved with their participation and to provide a source of potential healing and restoration for the victims as well. Here, the family's refusal is a significant countervailing factor. The lack of family participation would leave the sentencing circle populated with only Mr. Andrew's family, with only defence-related perspectives, without full circularity including those most impacted by the crime, with no promotion of healing for those people, and limited transmission of those harm-related interests to Mr. Andrews as part of his path to restoration and accountability. The limited overall number of participants would exacerbate the victim's family's sense of unfairness, of their feelings of one-sidedness of the justice process, in a context where their loss is total and has been completely devasting for them. Their refusal to participate is a significant factor weighing against the request.

[13] Second, Mr. Andrews has not taken full responsibility for the crime. He has taken some limited accountability, in terms of accepting that he caused the victim's death. Mr. Andrews tried to plead guilty to manslaughter, but it was based on a version of facts that was ultimately rejected by the jury. In his interviews with presentence writers, and with the indigenous report preparer, he has not indicated any further interest in taking accountability for the jury's verdict of second-degree murder. Mr. Andrews has also engaged in other behaviour showing lack of accountability. Immediately after the verdict was pronounced, he cried out to the jury against their verdict, saying that he had no intention. Later that evening, he tried to escape after his transport vehicle broke down on the way back to the jail following the verdict, although he was taken back into custody shortly afterwards. Mr. Andrews' overall conduct demonstrates that there is no common understanding between him, the other participants, and the court, about the offending conduct in issue. Offender accountability is an important criterion in most analyses for granting a sentencing circle request, because of the importance of accountability in enabling the offender and community to move forward and heal. The lack of full accountability here is another significant factor weighing against Mr. Andrews' request.

[14] Third, because this is a murder case, there is limited scope to impose a restorative-type sentence. The sentence will be a life sentence. There is only discretion about the number of years of parole eligibility, starting at a minimum of 10 years, and the main criteria governing the decision on parole eligibility are fixed by statute. In other types of cases, more restorative outcomes, non-custodial sentences, and other creative alternative sentencing options might be available, and a community might communicate support alternatives that would better serve the interests of justice and the principles of sentencing. Here, the recommendations could only relate to the number of years that the offender should serve before being allowed to apply for parole. I do not view this as the most important factor in the analysis, since some relevant information nonetheless could be communicated through a sentencing circle, but it is not the usual kind of information that would be most beneficial to a sentencing court engaging in a homicide sentence, particularly given the fourth factor I will next outline.

[15] Fourth, this court has extensive information about Mr. Andrews, his circumstances, character, and his potential sources of support. Mr. Andrews and his family members fully engaged in the Gladue report process, and the writer produced an extensive report canvassing many of the issues that might be highlighted in a circle. Although the writer had difficulty achieving the cooperation of having his parents participate, his mother wrote a letter to the court setting out relevant considerations, and other family members provided significant family information and history. I am not saying that a Gladue report altogether replaces a sentencing circle, and there may well be cases where the court would benefit from both a Gladue report and a sentencing circle, since the goals of each process are different. However, I am saying that to the extent that a circle would provide additional information to the court about the offender and the degree and nature of accountability and supports available, this court likely already has a significant amount of relevant information that properly can be taken into account.

[16] Again, I recognize that there are other benefits that could potentially come from a sentencing circle, such as direct public inputs from his family members and the elder whose participation might theoretically touch on wider community concerns, and all of which information could potentially assist Mr. Andrews in his journey towards responsibility and accountability, especially since they have not had that kind of process yet for their contributions, and the court's adoption of an indigenous-related practice could potentially increase Mr. Andrews' and his family and community's respect for the rule of law. However, in this case, the counter-vailing factors on the other side are too significant, and there is extensive cultural and background information available from other sources that would assist the court in setting Mr. Andrews' parole eligibility. The circumstances strongly indicate that a sentencing circle would not be in the overall interests of justice.

[17] The request for a sentencing circle is dismissed. The court will apply nonetheless all the principles of sentencing including those applicable to indigenous offenders.

[18] However, as I mentioned to the participants, the court is open to conducting the sentencing hearing in a more flexible way as the circumstances might require. The defence request orally to hold a healing circle is dismissed for the same reasons I have articulated above. If Mr. Andrews wishes to provide additional evidence, from any other additional people or sources, or to highlight any other considerations, or engage in other procedures such as smudging, the court is open to facilitating such requests.

The Sentencing Analysis

Applicable Principles of Sentencing

[19] The law requires that I apply all the applicable principles of sentencing set out in the Criminal Code. All sentences must conform to the fundamental principal of contributing to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions. A sentencing judge must consider all the principles of sentencing to arrive at a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender, including consideration of the aggravating features that would raise the sentence, the mitigating factors that would lower it. The principles of rehabilitation and restraint also apply in this case, but their ability to influence the sentence is lessened because of the mandatory life sentence that attach to a murder case, except that those principles might reduce the parole ineligibility period.

[20] The sentencing judge in a second-degree murder case must also consider the statutorily listed factors in s.745.4 of the Code in deciding the period of parole ineligibility, which factors are the primary determinants of the sentence because they are enumerated in the Criminal Code. The factors in s.745.4 are the nature of the offence and the circumstances surrounding its commission, the character of the offender, and the recommendation of the jury, if any. I next set out my analysis of those factors that I must consider.

1) Nature and Circumstances of the Offence, and Aggravating Factors

[21] In sentencing Mr. Andrews, I must accept all the express and implied facts that were essential to the jury's verdict of guilty. See R. v. Brown, [1991] 2 SCR 518. If the factual implications are ambiguous, I may find any relevant facts proven on a balance of probabilities, or, if the additional facts are aggravating or mitigating, I must only consider them if they are proven beyond a reasonable doubt. See R. v. Gardiner, [1982], 2 SCR 368.

Non-Contentious Facts and Facts Implied from the Verdict

[22] Certain facts are non-contentious. Many of the events were captured on video, and the witnesses including Mr. Andrews gave largely consistent evidence about those events. Mr. Andrews was involved in incident inside an after-hours bar on February 5, 2023. After exiting the bar, he walked to his car, searched his pockets, then drove through the laneway behind the bar. He went to the back door of the bar and unsuccessfully tried to regain entry. In a state of anger and intoxication, he began hitting the door with a knife, repeatedly and yelling for someone to come outside, and he cut his hand in the process. He also tried to re-enter from the front door, unsuccessfully, banging and yelling and threatening those he was yelling at. He yelled to people on the street that a person corresponding to Mr. Del Castillo Mullally's description had taken his phone.

[23] I note that the Crown disputed that any phone robbery occurred, and the defence has not retracted that allegation. Whether or not any phone was taken is not a relevant consideration on the sentencing hearing, in terms of changing the length of sentence, because it would be neither mitigating nor aggravating, nor definitional in any way about the issue of second-degree murder, so my factual conclusions on that point are not required or permissible on this hearing.

[24] In terms of further non-contested facts, Mr. Andrews next then saw Mr. Del Castillo Mullally on the street. He walked up to him and confronted him. Friends of Mr. Del Castillo Mullally approached and gathered around. After Mr. Andrews walked towards Mr. Del Castillo Mullally, one of the friends punched Mr. Andrews. Mr. Del Castillo Mullally also made outward motions with his leg towards Mr. Andrews. There is no evidence that any kick landed on Mr. Andrews.

[25] Immediately following the street confrontation, Mr. Andrews went back to his car that was parked near the front of the bar. He then drove his car up onto the sidewalk behind the group, nearly hitting Jake, and the others were standing behind posts that obstructed the car's path. The group walked away in the other direction. Mr. Andrews drove back onto the street, driving beside the group. Mr. Hopkins and others yelled for Mr. Andrews to go home, that the police would be called or that they were nearby, and other things possibly including insults. Mr. Andrews continued driving beside them a short distance down the street.

[26] Mr. Andrews then suddenly drove up onto the sidewalk area for second time, towards the people who were walking, including Mr. Del Castillo Mullally and Mr. Hopkins. Mr. Andrews hit Mr. Del Castillo Mullally with the front corner of his vehicle. Mr. Andrews continued to drive back towards the roadway, dragging Mr. Del Castillo Mullally underneath the vehicle, and then drove over him with the front and rear tires. Mr. Andrews applied the brakes briefly but did not get out of the car or assist and then drove away.

[27] Mr. Del Castillo Mullally's friends attended to him in the roadway and called for emergency services. The impacts from the collision and the force from the vehicle driving over him caused injuries that resulted in Mr. Del Castillo Mullally's death shortly after first responders arrived.

[28] Mr. Andrews testified that he was driving at Jake in order to scare him. He testified he was motivated by the "sucker-punch" he had received as well as the disrespect he felt he was shown in front of the girls on the street. He testified that he did not, however, have the intention for murder, and that Mr. Del Castillo Mullally's death was an accident, that he did not see Mr. Del Castillo Mullally before hitting him, and that he thought he was driving over a bike curb, not his body. He testified that he was highly intoxicated and was extremely angry over the situation.

[29] The jury's verdict of second-degree murder means that they rejected Mr. Andrews' claim that he did not have the intention for murder and that the defence of provocation was rejected. The jury was instructed that the offence of second-degree murder would be proven if they accepted, beyond a reasonable doubt, either i) that Mr. Andrews had the intention to murder Mr. Del Castillo Mullally, and that he was not provoked by Mr. Del Castillo Mullally, or ii) that he had the intention to murder Mr. Hopkins but accidentally killed Mr. Del Castillo Mullally instead, and that Mr. Hopkins had not provoked him. Either theory of proof would result in a finding of second-degree murder and would result in a life sentence with a period of parole ineligibility not less than 10 years and not more than 25 years. As I alluded to earlier, it is therefore not appropriate for me to make a finding of fact about which theory was proven beyond a reasonable doubt, because both are equally consistent with second-degree murder and both equally serious, given my conclusions I express later.

[30] The jury's second-degree murder verdict also means that they did not accept the Crown's theory that the murder was both planned and deliberate, that is, that Mr. Andrews' conduct leading up to the murder did not demonstrate beyond a reasonable doubt that his conduct was planned and deliberate.

Aggravating Factors

[31] The Crown argued that several aspects of the circumstances were aggravating, and weigh favour of increasing the severity of the sentence. I outline the considerations applicable to each of those factors below.

Has the Crown Proved Any Aggravating Conduct Showing Planning and Deliberation?

[32] The Crown argued that the facts proved conduct showing planning and deliberation, even though the jury did not convict Mr. Andrews of first-degree murder. The Crown argues that the facts showing planning and deliberation are aggravating of the circumstances such that the seriousness of the offence is increased and merits a higher sentence.

[33] The defence brought a directed verdict application at the end of the Crown's case and argued that there was no evidence of planning and deliberation for first-degree murder. I dismissed the application in a written ruling dated April 22, 2025. I concluded at para. 22, that, in "totality, the circumstantial evidence of planning and deliberation, viewed through the lens most favourable to the Crown, provides sufficient evidence of planning and deliberation", and that "the inference of planning and deliberation would reasonably be available to the jury", because "the inference is sufficiently strong to survive the limited scrutiny I am permitted to give the circumstantial evidence."

[34] As I explained in that ruling, my role at the directed verdict application was limited to viewing the available inferences in the most favourable light to the Crown. What I did not say, because it was not my role at the time, was that I viewed the evidence supporting those inferences as insufficiently strong to likely attain a verdict of first-degree murder, because it was contradicted by the ensemble of the other evidence showing Mr. Andrews' actions to be reactionary and undeliberated. In other words, I also would have had a reasonable doubt about the Crown's theory of planning and deliberation, just as the jury did, because of the contrary evidence pointed to by the defence. None of the individual pieces of evidence highlighted the Crown are sufficient on their own to show planning or deliberation, in the sense of demonstrating that the crime was closer to first-degree murder because there were elements of planning and deliberation.

[35] However, that same evidence of conduct before the murder shows, beyond a reasonable doubt, that the circumstances were extremely serious, dangerous and blameworthy conduct. The circumstances of the murder are aggravated by the fact that Mr. Andrews banged on the bar's door repeatedly, stabbing at it, and damaging the bar's property, while yelling loudly, waking up many of the neighbours and scaring them and the people inside the bar. The conduct is more serious because multiple people were impacted, disturbed and frightened by the conduct he perpetrated in trying to access the person he wanted to harm. The fact that he drove at the group, twice, up onto the sidewalk, is aggravating. The fact that Mr. Andrews persisted in seeking a violent conflict, over the course of several minutes, despite being urged to go home after the first time he drove on the sidewalk, and despite having an obvious and available means of desisting and exiting, is also an aggravating feature. That is, Mr. Andrews had several available options to him to end the encounter, but, rather than go home, he chose to commit a murder.

The Use of a Vehicle as a Weapon in a Public Space in Toronto, Risk to Others

[36] Mr. Andrews' use of small SUV weighing several tons to intentionally cause the murder is an aggravating factor. A small SUV has the potential to cause maximum damage to a person's organs and bodily structures if used as a weapon against a person.

[37] Mr. Andrews' use of the SUV as a weapon also put other members of the public at risk of death or serious bodily harm. The members of the public, including Mr. Del Castillo Mullally's friends, were walking in proximity and were put at risk; indeed, Jake had to jump out of the way twice to avoid being hit by Mr. Andrews. It was also closing time at the bar, so it was reasonably foreseeable that other people would have been on the sidewalk at that time. The level of seriousness of this offence is underlined by the fact that, in the recent past, the residents of Toronto and of other Canadian cities have experienced the terror induced from several other vehicle-related homicides in public contexts.

[38] The combination the fact that Mr. Andrews used a vehicle to kill someone in a public space, in an urban setting, where others were around or expected to be, and who also had to jump out of the way to avoid being harmed by Mr. Andrews, requires an increase in sentence. There is a societal need to deter and denounce such reprehensible conduct in the strongest terms.

Driving While Intoxicated, Driving with a Suspended Licence

[39] The fact that Mr. Andrews was driving his car while intoxicated during this offence is an aggravating factor. The fact that he had no valid driver's licence is also an aggravating factor. He should not have been driving the vehicle at all. There is no specific evidence that he knew the vehicle was stolen, and no specific evidence of that particular aspect of the circumstances influencing the commission of the offence, so that feature is not specifically aggravating.

Victim in a Vulnerable Position

[40] The fact that Mr. Del Castillo Mullally was in a vulnerable position is also an aggravating feature in the circumstances. Mr. Del Castillo Mullally was a pedestrian, and Mr. Andrews was a motorist. Mr. Andrews was obligated, by law and morality, not to put pedestrians at risk with his vehicle, as I referenced earlier. Mr. Del Castillo Mullally had no means of defending himself, other than his unsuccessful attempt to avoid the vehicle that was barreling towards him.

Flight from the Scene, and from Police on Later Dates

[41] Mr. Andrews' flight from scene and failure to assist Mr. Del Castillo Mullally is an aggravating factor. While Mr. Andrews braked briefly after the incident, he did not stop in any true way, and he personally did nothing to try to assist Mr. Del Castillo Mullally. I accept the defence submissions that other kinds of post-offence conduct might be more aggravating in nature, the types of conduct referenced in cases like in R. v. Boyede, 2020 ONSC 7493 and R. v. Krasniqi, 2012 ONCA 561, for example, particularly where offenders destroy evidence or do other indignities. Here, the court takes Mr. Andrews' post-offence conduct into account in a proportional way in the whole context, given the whole of the circumstances.

[42] Mr. Andrews' flight from police in the days following the incident, and his attempts at escape on the day of his arrest and on the day of conviction are not argued to be aggravating factors. I understand the Crown's submission on this point is that the conduct relates to Mr. Andrews' rehabilitative prospects. In this context, his efforts at evading police and custody are part of Mr. Andrew's overall behaviours, that must be considered along with the evidence of his positive behaviours while in custody, in terms of assessing his character. In that sense, the presentation of his character based on his after the fact conduct must take into account those aspects, in assessing the principles related to mitigation.

Significant Impacts on the Victims and Witnesses

[43] The significant impact on Mr. Del Castillo Mullally's family, friends and girlfriend, and on the witnesses in the case is a highly aggravating factor in the circumstances.

[44] Mr. Del Castillo Mullally was a bright and talented young man in many domains, a peace maker, a supportive family member and friend, a helper to those who needed it, a dedicated student and employee. A life full of promise, taken without justification.

[45] The loss has devasted his family members and friends.

[46] His father describes the sense that his son is not ever coming home again as a living nightmare, the experience of his grief through all its stages, the sense of loss of opportunity, of overwhelming sadness, his heart "broken in a million pieces". His father has suffered physical impacts as well, his health has suffered, the sense of having aged many years in a short time, of no longer experiencing joy or happiness.

[47] His mother describes being completely and totally impacted by the loss in every sense. She describes being confined to her bedroom, of avoiding others to avoid the additional pain, that she has not been able to work or socialize or to perform basic tasks, and that her lack of activity has impacted her mobility and physical health. Her grief and devastation is multiplied by the fact that she is managing those issues on top of her own significant physical illnesses, her remaining days filled with grief, anguish and anger. She has lost an immense source of joy and pride, and a tremendous support for her during her illness, as Gabriel had pledged to fight alongside her, as she had helped him in his own struggles. She relies on medication to dull the pain and devastation of the loss of her son.

[48] His sister describes how difficult it has been for her to manage her pain and suffering, having to continue her university studies without a grieving period, having to continue on as normal despite the extreme circumstances. The trial took place as she was trying to finish her last months of university. She describes the pain of watching her parents' grief, of her sense of loss of her lifetime companion, her older sibling and protector, of feeling regret at not having expressed enough of her appreciation towards him, of feeling alone in managing the burden of her parents' present and future care needs, of living in fear that she will encounter Mr. Andrews in the future, of feeling that her own social development was halted, of feeling a lack of connection with others who would not have experienced such a transformative loss. The sister's boyfriend verifies the extent of trauma experienced by Gabriel's sister and the family of the impact witnessed.

[49] Gabriel's girlfriend's experience is that her own sense of safety and well-being has been shattered, of feeling anxiety over people's whereabouts, of feeling distanced from other people who could not understand her sense of loss and grief. She describes being traumatized, exhausted, of repeatedly revisiting the emotional weight of the loss. She explains that she has turned to a life of service, to helping others in crisis, as a means to overcome the darkness in her life and to pay tribute to the goodness of Gabriel's life.

[50] His uncles, aunts, and grandmother were traumatized by the murder. They suffer from the loss of all that Gabriel was destined to become, from the loss of a valued family member, from having their sense of well-being shattered, from their worry for Gabriel's parents and sister, of regrets in not having enough time with him to have expressed all they wished they had, of losing a sense of humanity and trust in others, of losing an irreplaceable companion for themselves and their children. At the same time, they are constantly reminded of Gabriel's memory, of his goodness and talents.

[51] Gabriel's friends also suffer from the impact of the murder. One described being supported by Gabriel when others had turned away, of losing a valuable emotional and social support, of thinking of Gabriel every day. Another described having to live forever with the association of the murder on their birthday, of losing a valued friend who did actions to uplift at low points. Still another described the sense of loss of a close friend who was supportive and fun, of having a sense of pain and loss in their heart. Gabriel's parents' friends have also experienced significant impact in witnessing the ongoing trauma to the family.

[52] Apart from Gabriel's family and friends, the court also recognizes the traumatizing impact that this murder has had on the witnesses in this case. His friend, who was standing beside Mr. Del Castillo Mullally as he was run down, and who aided him, in vain, afterwards, suffered an enormous traumatic impact from the offence. The witnesses in the neighbourhood were awakened in fear by the events, and one neighbour directly interacted with the horrifying scene, and was obviously impacted by what he experienced.

[53] The court's sentence cannot soothe the pain experienced by all the victims and witnesses in this case. However, the court will treat as aggravating in Mr. Andrews' sentence, the devastating impact on all of them, in recognition of the enormity of the harm caused by Mr. Andrews' conduct.

2) Mr. Andrews' Character, Mitigating Factors, and Gladue Factors

[54] The second major criteria that will affect the sentence is that of Mr. Andrews' character. There are several factors related to Mr. Andrews' character put forward by the defence that are argued to be mitigating factors for the sentence. The Crown agrees with some of the factors but contests several others and also points to the aggravating conduct as a further indication of Mr. Andrews' character as well as some evidence of his behaviour after the fact.

[55] I have dealt with the aggravating conduct in the section above. Below, I set out my analysis relevant to each consideration raised by the parties, in terms of whether the factors indicate something about Mr. Andrews' character and whether they weigh in favour of mitigating the sentence.

Remorse

[56] Remorse is a mitigating factor on sentence.

[57] Here, Mr. Andrews attempted to plead guilty to manslaughter. In his evidence, he admitted responsibility for causing Mr. Del Castillo Mullally's death. However, Mr. Andrews' attempt at a guilty plea does not act in mitigation because the jury rejected his version of the facts, that the events were an accident. The attempted guilty plea did not narrow the issues or shorten the trial very much. The case still required a month-long trial after the rejected plea because the Crown needed to call nearly all the evidence to establish intention. The fact that Mr. Andrews had a trial is not an aggravating factor on sentence. However, the fact that he had a trial means that he does not benefit from the mitigating impact of a guilty plea.

[58] Mr. Andrews expressed regret and remorse for having caused Mr. Del Castillo Mullally's death in his evidence at trial. He also expressed remorse for having caused Mr. Del Castillo Mullally's death while he wasin court today, expressing his wishes that Gabriel was still alive, of wishing he could take back his actions, that he is sorry to Gabriel's parents, his whole family, his girlfriend, that he wished he could take back what he did.

[59] Mr. Andrews expressions of regret and remorse are mitigating in nature. The extent of mitigation is lessened though because he has not communicated that regret in terms of responsibility as found by the jury.

Intoxication

[60] The defence argued that Mr. Andrews had a high level of intoxication during the incident, and that his intoxication is a mitigating factor. The Crown argued that his behaviours showed he was not intoxicated and argued that he had a level of tolerance from ongoing substance abuse, which meant that whatever intoxication he experienced did not impact his level of blameworthiness. The Crown also argued, and I accepted, that the fact that Mr. Andrews was driving while impaired is an aggravating factor.

[61] Based on all the evidence, I conclude that Mr. Andrews was significantly intoxicated at the time of the incident. Although Mr. Andrews showed some behaviours indicating a degree of control, like driving his vehicle according to his intended purpose, like moving around quickly and not stumbling, several other factors prove that he was also significantly intoxicated. First, several witnesses described him as highly intoxicated, including the neighbour across the street, who had a full view of the incident over an extended period, and who described Mr. Andrews as "smashed". The people on the street yelled at Mr. Andrews that he was drunk and told him to go home. The videos show Mr. Andrews' movements in front of the bar, and those movements are consistent with those of an intoxicated person. He was also documented as having possession of a bottle of beer, providing additional independent proof of alcohol consumption, apart from the witness evidence. Mr. Andrews testified that he had longstanding issues with abuse of alcohol and drugs, that he consumed both alcohol and drugs that evening and while at the bar, evidence that was not contested.

[62] In terms of the issue of tolerance to alcohol or substances, there was no specific medical or toxicological evidence from which I could draw any specific conclusions, except Mr. Andrews' own evidence that he was somewhat habituated to the effects of the substances. However, substance tolerance would not mean that his judgment and actions were unimpacted by consumption, only that some of the effects might be less visible or pronounced, or that he might have had to consume more to subjectively feel more overtly intoxicating effects. So, in terms of whether his substance tolerance had any impact on the level of intoxication he was experiencing, the overall evidence does not tend to show that tolerance had any meaningful impact one way or the other.

[63] Even though I have concluded that Mr. Andrews was significantly intoxicated at the time, that intoxication evidence did not raise a reasonable doubt about his intention. If it had, the jury would have returned a verdict of manslaughter. As I noted earlier, the evidence showed him capable of performing many tasks, and he purported, in his own evidence, to have a nearly perfect memory of all the details of the incident. The combination of those details show that his level of intoxication is not a major mitigating factor in terms of reducing his parole ineligibility, because he still had the level of intention sufficient for murder, despite evidence of intoxication and anger.

[64] At the same time, however, his intoxication is relevant for understanding issues like the context of his behaviour that night, and to contrast the actual behaviour from the more aggravated, calculated conduct that was alleged by the Crown. His level of intoxication diminished the probative force of the Crown's theory of planning and deliberation, and played a part in casting doubt on whether his behaviours were part of calculated and planned conduct, whether the conduct was performed in a cool, rational approach, particularly because the intoxication evidence was combined with evidence of his extreme anger over circumstances that occurred moments earlier. The intoxicants were not the primary driver of Mr. Andrews' actions, as evidenced by the second-degree murder verdict. His intoxication also played a part in my decision that the Crown had not proven any planning and deliberation as aggravating for the second-degree murder.

[65] Mr. Andrews' intoxication also must be understood in the context of his own personal circumstances. Mr. Andrews is an indigenous person with a clear link to the intergenerational trauma caused by residential schools. His family members attended residential schools. Mr. Andrews experienced the trauma of homeless, of parental abandonment, of family substance abuse issues and cultural disruptions, of family and cultural disruptions. His intoxication and addiction issues can be understood, against that backdrop, as a dysfunctional coping mechanism associated with those traumas detailed in his reports, rather than as purposeful misconduct for self-gratification.

[66] Driving a vehicle under the influence of alcohol, particularly to commit a heinous criminal crime like murder, is not, mitigating, and does not entitle an offender to a reduced sentence. Indeed, driving while intoxicated is an aggravating factor in this case.

[67] In summary, the issue of intoxication cuts both ways. On one hand, it is an aggravating factor because he committed the murder while also committing another serious criminal offence, driving while impaired. On the other hand, the fact that Mr. Andrews was significantly intoxicated detracts from the Crown's assertion that Mr. Andrews engaged in planning and deliberation along the continuum towards first-degree murder. His intoxication was not significant enough to raise a doubt about his intention for second degree murder, but it is significant enough to cause doubt about whether he was engaging considered and calculated conduct, when I considered in the context of his behaviours that night, and in terms of assessing his tragic personal background.

Gladue Factors

[68] Mr. Andrews' indigenous background is a mitigating factor on sentence and weighs in favour of the court applying the principle of restraint, of not placing this offence in the highest end of the sentencing range. The reports filed on sentence detail an extensive history related to Mr. Andrews' indigenous identity and circumstances. The reports detail his family's important history in pre-settled Canada, and their role in treaty making with the Crown. That proud history evolved into a tragic one filled with residential school attendances, cultural, language, family and kinship network disruptions, of substance use and addictions. The substance use issues directly affected his grandmother and his mother and played a part a part in Mr. Andrews' abandonment to his father, and their subsequent homelessness. Mr. Andrews described his own feeling of responsibility for their homelessness, of experiencing discrimination and social difficulties, and of experiencing danger and rough circumstances in his experience of homelessness. Mr. Andrews also turned to substances to manage his traumas. His overall circumstances have a part in explaining his lack of maturity and his behavioural dysregulation.

[69] The court's denunciation of Mr. Andrews' horrific conduct will be significant, but it will be mitigated because of his background factors, the personal factors that explain his character and how he arrived in this situation. While Mr. Andrews made personal choices that carried devasting impacts and presented other aggravating features, Mr. Andrews is also someone who suffered the impacts of intergenerational traumas and who had ongoing mental health issues.

Youthful "First Offender", No Criminal Record

[70] Mr. Andrews' age is also a mitigating factor for the required severity of the sentence. Mr. Andrews was 24 years old at the time of the offence, a year younger than the victim, Mr. Del Castillo Mullally who was himself just 25 years old. Mr. Andrews' age supports a parole ineligibility period lower in the range than higher end, particularly because he had no criminal record at the time. See R. v. Grant 2016 ONCA 639 at para. 173.

[71] The fact that he was on an undertaking is not aggravating factor for the conduct being sentenced and does not detract from this mitigating factor. He did not violate that undertaking during the offence before the court, and the other charge was ultimately withdrawn.

Employment and Programming, Institutional Behaviours

[72] Mr. Andrews has a work history as outlined in the reports and in his evidence at trial. Mr. Andrews also completed a large number of programs while in pretrial custody, all geared towards his rehabilitation. Mr. Andrews' work history, and his efforts at seeking to improve himself while in custody are positive factors for his rehabilitative potential. These factors provide some mitigation.

[73] The Crown also sought to rely on institutional records showing that Mr. Andrews was involved in a number of incidents while in custody, arguing that they reflected poorly on his character and showed that he posed a risk. The defence opposed the records saying they were not properly authored, that the institution was not credible, that it was difficult to assess the voluntary admissions, that the details were not specific or particularized enough to draw conclusions and that they should not be used.

[74] In 2023 and in 2025, he had a significant number of non-compliant behaviour incidents. Most of the incidents occurred in the first half of the year after he was first admitted to custody. Some of the conduct related to interpersonal conflicts with other inmates, and there is not a lot of detail with respect to the full circumstances and different perspectives. Without live evidence to assess those incidents, it is difficult for this court to attribute responsibility or to fully understand what happened, although I recognize that the intuition levied minor penalties. Mr. Andrews was also involved in possessing contraband and other incidents.

[75] In terms of the contraband substances, the court recognizes that he was admitted to custody while having significant substance abuse issues and it is not clear that he has had any specific, meaningful treatment or services for those issues. In terms of other types of contraband, the items posed potential dangers to other inmates, but the designation of responsibility or acceptance is not altogether clear enough to make specific risk-related findings in this context.

[76] The overall collection of incidents shows some behavioural-related incidents concurrent with stressor points along the process. It would be in Mr. Andrews' best interests in the future for him to learn to find ways to stay free of incidents and conflicts with others.

[77] In summary, Mr. Andrews' time in custody has been spent doing positive rehabilitative programming, all that was offered to him, and not all of it culturally geared towards his needs. His time also involved a number of incidents that might reflect less favourably on his ability to manage himself in the institution, although the circumstances were challenging in the sense of occurring in a context of triple bunking and frequent lockdowns and other issues. I do have enough information from which to have risk-based concerns from that institutional behaviour, in terms of the broader public, at least at this stage of his term in custody.

[78] I do not find the records to be sufficiently helpful in this sentencing exercise to make a meaningful difference to the total sentence that would be imposed. I do not rely on them for the purpose that the Crown tendered them, particularly in terms of assessing his individual risk. I am not saying that such records are never helpful or can never be used in sentencing processes. Rather, here, the records would not be of any significant assistance in the sentencing determination.

[79] In terms of risk assessment, this court is best informed from the circumstances of the offence itself, from the aggravating features of that conduct, and as mitigated by the positive features relevant to his character as I outline in this decision. The sentence imposed at the end of this decision will reflect all those relevant considerations, and the other factors I must apply.

Mr. Andrews' Family and Network Support

[80] Mr. Andrews filed numerous letters of support, letters from his mother, his siblings, his cousin, and a neighbour. There were apologies offered to Mr. Del Castillo Mullally's family and condolences. They highlighted Mr. Andrews' difficult circumstances: the instability in his upbringing, his mental health issues, his attention deficit and learning difficulties. They highlighted his strengths: their view that he was a good person, that he was a good and caring friend, that he had a strong work ethic, and that he had a community and cultural support network available to him. Mr. Andrews' family members also attended throughout the trial, sitting through the proceedings, as did Mr. Del Castillo Mullally's family.

[81] The evidence from Mr. Andrews' family and support network reflects on his potential to reintegrate into society, at a future point, should he be released from jail, and that network will be a form of support to him during his jail sentence. This is also a mitigating factor for Mr. Andrews because it shows a potential for reintegration.

Pretrial Custody

[82] Mr. Andrews has been in pretrial custody since February 8, 2023, 958 days (as of September 22, 2023). By operation of the Criminal Code, each day in custody counts towards the life sentence that will be imposed, and towards the parole eligibility date. No enhanced credit is available for offenders sentenced to life sentences under the Criminal Code. Thus, pretrial detention, in and of itself, is not a mitigating factor on sentence.

[83] Excessively harsh conditions, however, are mitigating on sentence. At the last report, Mr. Andrews had been subject to lockdown conditions on 266 days, all resulting from staffing shortages at the jail. That total is a significant number of days, with limited access to time out of the cell for normal prison activities. Mr. Andrews was also subject to triple bunking 21 days at the last report, meaning that on those days, he was living in an overcrowded cell. Mr. Andrew's excessively harsh pretrial custody conditions are a mitigating factor on sentence because they do not relate to the purposes of pretrial detention.

3) Jury Recommendation

[84] The jury unanimously recommended a parole ineligibility period of 10 years. The jury was aware of the offence's serious circumstances, of all those aggravating features of the conduct itself, of the trauma to some of the victims and witnesses, of Mr. Andrews' indigenous background, his childhood traumas, his history of homeless and transition, his drug abuse and mental health issues, and they knew the range of sentencing was between 10 years and 25 years' parole ineligibility. Each member of the jury individually recommended the same sentence, understanding the factors that properly would impact the sentence.

[85] It is not every case where a jury's recommendation should be given significant weight. In some cases, new information is revealed in sentencing; in others, the jury is not unanimous; still other cases may have individual particularities requiring a lesser focus on the jury's recommendation. In this case, the jury had not heard from all the victim's family members who provided evidence that aggravate the circumstances beyond that communicated during the trial, and they did not know some of the details about Mr. Andrews' circumstances.

[86] Nonetheless, given the jury's overall level of awareness of the other applicable factors, and because of their unanimity, the court will give their recommendation significant weight. The jury was communicating their view that the court should apply restraint, that they recommended the minimum given their understanding of the evidence and the relevant considerations. The court must still, of course balance the jury's recommendation with the other principles of sentencing, including the aggravating circumstances, which have the highest level of importance in this case, given the primacy of denunciation and deterrence as principles.

4) The Principle of Parity: The Sentencing Range and the Parties' Positions

[87] The Crown argued that 15 years' ineligibility was the appropriate sentence. The Crown cited several cases where parole ineligibility periods of 10 to 16 years were imposed or upheld in second-degree murder cases involving vehicles. See R. v. Lamba, 2024 ONCA 778 where the sentence was reduced to 10 years' ineligibility on appeal, after a judge alone trial; R. v. Tutiven 2022 ONCA 97 where the court imposed 16 years' ineligibility after a jury trial, there were no mitigating factors; R. v. Ariaratnam, 2012 ONSC 5301, where the court imposed 12 years' ineligibility after a jury trial; R. v. Hamilton, 2005 YKSC 59 where the court imposed 13 years' ineligibility after a guilty plea. The Crown conceded orally that if there were no planning and deliberation proven in th3 case, that the range would be 12 to 13 years because of the mitigating factors.

[88] The defence agreed with the sentencing range highlighted by the Crown but pointed out that those cases had more aggravating factors or fewer mitigating ones. The defence also highlighted other cases with more serious aggravating factors but where lower periods of parole ineligibility or lower sentences were imposed. The defence argued that the jury recommendation of 10 years should be followed because they were informed about almost everything, and because of the mitigating factors.

[89] The circumstances of this case are closer to the cases at the lower end of the sentencing range, rather than at the top end of the range, because the Crown did not prove beyond a reasonable doubt that there were acts of planning and deliberation, because of the lack of criminal record, the Gladue factors and the other mitigating factors I outlined, and because of the jury's recommendation for the minimum ineligibility period. However, despite those mitigating factors, the sentence should be elevated from the very lowest end of the range because of the weight attributed to the specific aggravating circumstances in this case.

Conclusion: Parole Ineligibility Period Imposed

[90] On balance, the nature and circumstances of the offence indicate the parole ineligibility period should be increased from 10 years, in light of the range and the prior caselaw, but the mitigating factors, and jury recommendation significantly restrain the extent of that increase.

[91] The court imposes a life sentence for the offence of second-degree murder. The parole ineligibility period is set at 11 years.

Ancillary Orders

[92] The court imposes the following ancillary orders:

i. Section 109 prohibition order for life for the (2)(b) category; and 10 years prohibition for the (a) category.

ii. Section 487.051(1) DNA order, because the offence is a primary designated offence.

iii. Section 473.21 non-communication order for Mr. Del Castillo Mullally's family and the people who filed victim impact statements.

iv. The court does not impose a victim fine surcharge because of the economic circumstances related to Mr. Andrews' incarceration.

Boucher J.