HIS MAJESTY THE KING – v. –, 2023 ONSC 1706

CITATION : R. v. Ngabirano, 2023 ONSC 1706 COURT FILE NO.: 20-47506 DATE: March 13, 2023 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – MIGUEL NGABIRANO ) ) ) ) ) ) ) ) ) ) David Rodgers for the Crown Paul Lewandowski for the Defendant HEARD : February 13, 2023 sentence Justice Sally Gomery: [ 1 ] After I ruled that his statement to police was voluntary, Miguel Ngabirano pleaded guilty to three offences: kidnapping with intent to confine, contrary to s. 279(1) (

a) of the Criminal Code of Canada ; robbery, contrary to s. 344 of the Code ; and use of an imitation firearm in the commission of an offence, contrary to s. 85(2) of the Code . I convicted Mr. Ngabirano and heard sentencing submissions on February 13, 2023. Today I must sentence him. General sentencing principles [1] A sentence “must be proportionate to the gravity of the offence and the degree or responsibility of the offender”; s. 718.1. It must reflect respect for the law and maintenance of a just, peaceful, and safe society.

The goals of sentencing include general and specific deterrence, denunciation of the criminal activity and the rehabilitation of the offender. [ 2 ] In imposing a sentence, I must consider any aggravating or mitigating factors. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, unless there are compelling reasons to depart from the parity principle. I must exercise restraint in imposing imprisonment, insofar as it is possible considering the nature of the offence and the circumstances of the offender.

Circumstances of the offences [ 3 ] The circumstances of the offences are set out in an agreed statement of facts read into the record at Mr. Ngabirano’s guilty plea. [ 4 ] On February 18, 2020, at around 8:10 p.m., Megha Arora was confronted by a young male when she got out of her car after parking at 2045 Baseline Road in Ottawa. The male held a gun-shaped plastic tool, which he pressed against Ms. Arora’s stomach while demanding she give him her car keys. About ten seconds later, this male was joined by two other young men who tried to grab Ms. Arora’s purse. All three assailants were wearing dark hoodies. Ms.

Arora yelled at her friend, who was still in the car, to phone the police. The three muggers then ran off. [ 5 ] About 45 minutes later, an Uber driver, Akaljot Dhillon, was waiting for a fare near the front entrance of a Home Depot store at 1900 Baseline Road when he was approached by the same three young men. After confirming he was an Uber driver, they got into the backseat of his 2012 Volkswagen Passat. One of the males was holding what appeared to be a gun. He pointed it towards Mr. Dhillon’s back and said: “If you want to stay alive just drive”. The assailants directed Mr.

Dhillon to a destination about 2.3 kilometres away, where they pushed him out of the car and took his iPhone off the dashboard. After the three males drove off in his car, Mr. Dhillon spoke to a security guard who in turn called the police. [ 6 ] A police officer on his way to the robbery call saw the stolen Volkswagen driving down a nearby street carrying three young men. The officer followed the car and forced it to stop. There were, by this time, only two people inside: the driver, Mr. Ngabirano, and AB. When searched incident to arrest, Mr. Ngabirano was found to have Mr. Dhillon’s iPhone.

No gun or gun-shaped object was found in the car or on either Mr. Ngabirano or AB. The third youth, OY, was tracked using a police dog and found a short distance away,

standing on top of fence, holding on to a tree. Mr. Ngabirano’s circumstances [ 7 ] I received a pre-sentence report prepared by Christian Bernard, a parole officer. He interviewed Mr. Ngabirano and his older sister and obtained other relevant collateral information. [ 8 ] Mr. Ngabirano was born in late 2001 and so had celebrated his 18 th birthday just three months prior to February 18, 2020. He was raised in Burundi. His older sister immigrated to Canada in 2013 to escape political upheaval, violence, and unrest. Their parents sent Mr.

Ngabirano and his older brother to join her in 2016, because boys their age were being forced to go into the military or were killed. His parents remain in Burundi. [ 9 ] Mr. Ngabirano told Mr. Bernard that he had a stable homelife with his parents despite the political unrest in Burundi. They are both employed and are loving parents. He denies any abuse, violence, or use of illicit substances within his family. He says that he now feels somewhat distant from his parents, because they have lived apart for seven years, but he has a close, supportive relationship with his two siblings. [ 10 ] Mr.

Ngabirano attended high school in Ottawa and graduated in 2020. He described his attendance and grades as “okay”. He was suspended about nine times for absenteeism, tardiness, or smoking. He denies any violent behaviour while attending school. [ 11 ] After graduating high school, Mr. Ngabirano enrolled in a construction and building technology program at college. He still has one credit left to complete. He has also been consistently employed since his graduation, most recently working as a labourer for a fence building company. According to both Mr.

Ngabirano and his sister, he intends to complete his college degree and obtain long-term employment in the construction industry. [ 12 ] Mr. Ngabirano does not drink alcohol except on special occasions and denies ever drinking heavily or bingeing. He has used marijuana socially since the age of seventeen. He told Mr. Bernard that he had been taking marijuana more frequently around the time of the offences and believed that it impacted his ability to make good decisions.

He reports that he last consumed marijuana nine months ago after his doctor told him that it was contributing to his anxiety and high blood pressure. Mr. Ngabirano’s sister denies that he has ever had any problem with alcohol or drugs. He has never sought any counselling or treatment for mental health issues. [ 13 ] Mr. Ngabirano has no criminal record aside from these offences. He was found to have breached his release order pending trial, for which he was discharged with a seven-month non-reporting probation from September 2021 to April 2022. [ 14 ] Mr.

Ngabirano was polite and forthcoming during his interview with Mr. Bernard. He accepted responsibility for his actions and expressed remorse, as he did again during the sentencing hearing. He told the court, “I made a mistake and I learned from it, and I am very sorry”. He told Mr. Bernard that he had been trying to make new friends in early 2020 and fell in with the wrong crowd. Since his arrest, he has distanced himself from the social group involving OY and AB, and instead spends time with his siblings and close friends from high school, none of whom have criminal records. Mr.

Ngabirano’s sister corroborated this account. She described her brother as “a good boy and not a troublemaker” whose involvement in the mugging and carjacking in February 2020 was out of character. [ 15 ] Mr. Bernard concludes that Mr. Ngabirano is “eager and motivated to improve his life circumstances and has made notable progress in the areas of education, employment, and developing a positive social group”. In his view, Mr.

Ngabirano would be eligible to serve any sentence he may receive in the community, subject to participating in programming directed by his probation officer, remaining employed, reporting as directed, and staying away from any individuals with a criminal or youth court record. The nature of the offences [ 16 ] Although neither Ms. Arora nor Mr. Dhillon were physically harmed when the offences were committed, robbery and kidnapping are inherently violent acts, especially when the victim believes their assailant is armed. In a victim impact statement, Ms. Arora described the mugging as “terrifying”.

She moved to another apartment after it happened because she fears that one of her assailants might hold a grudge against her for calling the police. The mugging also affected her work temporarily, and she no longer parks in surface lots. Mr. Dhillon did not file a victim impact statement but a carjacking targeting someone who drives a car for a living would, I infer, leave them feeling vulnerable. The parties’ positions on sentencing [ 17 ] The Crown seeks a custodial sentence of 15 months. [ 18 ] The defence proposes a conditional sentence of two years less a day plus three years probation.

Alternatively, if I conclude that a custodial sentence is necessary, defence counsel suggests six months less a day in jail plus an 18-month conditional sentence, followed by three years of probation. Aggravating factors and mitigating factors [ 19 ] I find the following aggravating factors in this case: • There were three victims of Mr. Ngabirano’s crimes, including Ms. Arora’s friend. • The victims were alone when they were approached by three men wearing hoodies who threatened them with what appeared to be a gun. • The Crown concedes that Mr. Ngabirano was not the person holding the imitation gun.

He was, however, aware of it.

• Ms. Arora said the mugging was terrifying and that it has made her and her family feel less safe. [ 20 ] The Crown suggests that I should find that Mr. Ngabirano and the other two assailants planned to commit their offences on February 18, 2020. There is no evidence to support such a finding. The Crown suggested that I could infer that the offences were premeditated because all three assailants wore hoodies. Many Canadian teenagers wear hoodies, especially in February in Ottawa. There is no evidence about whose idea it was to mug Ms. Arora and when it was formed. The carjacking of Mr.

Dhillon’s Uber may well have been a spontaneous act after the three young men failed to convince Ms. Arora to give them her car keys. It is hard to believe that any planning went into it, as Mr. Dhillon was immediately (and predictably) able to report the theft, including the make, model, and licence plate of his car, with the result that Mr. Ngabirano and the other two offenders were apprehended promptly. [ 21 ] There are many mitigating factors in this case: • Mr.

Ngabirano was barely 18 years old when he committed the offences, and is now only 20. • He had no record or brushes with the law prior to his arrest. • He is not addicted to alcohol or drugs. • He has completed high school and all but one credit for a college degree since his arrest. • He has been continuously employed since his high school graduation, even while being on conditional release on the charges for which he was convicted.

There is no suggestion that he will be unable to get work in the future or unwilling to do so. • He has the support of two siblings who live with him, and a social group that is not engaged in criminal activities. • He pleaded guilty at the earliest stage of his trial, after I had determined that his police statement was voluntary and so admissible. • He has consistently expressed remorse for his actions and insight into why he was drawn to commit the offences, and he has stopped using marijuana and has distanced himself from peers who were a bad influence.

Based on his statements and body language during the videotaped police statement and in court, I find him sincere. Other relevant factors [ 22 ] The defence urges me to consider the impact of a potential sentence on Mr. Ngabirano’s ability to stay in Canada. [ 23 ] Mr. Ngabirano is currently a permanent resident of Canada. Because of his conviction of an offence punishable by a maximum term of at least ten years, he is now “inadmissible on grounds of serious criminality,”: s. 36(1) (

a) of the Immigration and Refugee Protection Act , S.C. 2011, c. 27 (the “Act”). He may be subject to a removal order. Under s. 68(1) of the Act, he could appeal the order to the Immigration and Refugee Board and obtain a stay if the Board is satisfied that “sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case”. If, however, Mr. Ngabirano receives a jail sentence of at least six months, he will lose his right of appeal, pursuant to s. 64(1) of the Act. [ 24 ] In R. v. Pham , [2013] 1 S.C.R. 739, [2013] S.C.J.

No. 100, 2013 SCC 15 , the Supreme Court of Canada held that collateral immigration consequences are relevant to sentencing. The weight to be given to collateral consequences varies from case to case and the sentence imposed must still be fit ( Pham , at paras. 12 and 15 ). A court could, however, exercise its discretion to take into account the “burdens and hardships flowing from a conviction … if they make the rehabilitative path harder to travel” ( Pham , at para. 12 ).

Where two possible sentences are appropriate as regards the gravity of the offence and the offender’s responsibility, the court should impose the sentence that better contributes to the offender’s rehabilitation ( Pham , at para. 11 ). [ 25 ] In R. v. Nassri , 2015 ONCA 316 , the Ontario Court of Appeal considered an appeal by a 21-year old permanent resident from Syria convicted of robbery and possession of a weapon for a dangerous purpose after he drove a getaway car for a bank robbery where knives were used.

He was sentenced at trial to nine months in jail by a judge unaware that, as a result of a recent change in the law, Mr. Nassri would be deported back to Syria, a war zone, if he were convicted to a term of six months or more in jail. Applying the principles set out in Pham , the Court of Appeal held that collateral immigration consequences were relevant. It admitted fresh evidence about the impact of his sentence on his ability to stay in Canada and reduced the custodial term to just under six months. [ 26 ] I do not have as much evidence about the consequences of potential sentences on Mr.

Ngabirano’s ability to stay in Canada, or on current conditions in his home country. I nonetheless find, on the information presented to me, that Mr. Ngabirano may face life- threatening consequences if he is sentenced to six months or more in jail. He would be very likely to receive a removal order and face certain deportation to an unstable and violent country. Relying on information obtained from Mr. Ngabirano’s older sister and a 2015 Human Rights Watch World Report, Mr.

Ngabirano’s pre-sentence report notes that human rights abuses and violence in Burundi are well documented, and that the killing of civilians by both security forces and armed opposition has led hundreds of thousands of Burundi citizens to seek to leave the country. [ 27 ] I accordingly find that the collateral immigration consequences on Mr. Ngabirano are relevant to determining a fit sentence for him. What is an appropriate sentence? [ 28 ]

Section 742.1(

a) of the Code provides: Where a person is convicted of an offence, except an offence that punishable by a minimum term of imprisonment, and the Court … imposes a sentence of imprisonment of less than two years, and is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s.

718 to 718.2, the Court may, for the purposes of supervising the offender's behaviour in the community, order that the offender serve thesentence in the community, subject to offender's complying with the conditions of a conditional sentence order… . [29] Given that none of the offences committed by Mr.

Ngabirano are subject to a mandatory minimum sentence, I may thereforeimpose a conditional sentence if I conclude that a fit sentence is less than two years, and if the other criteria in s. 742.1 are made out. [30] Based on the parity principle alone, defence counsel urges me to impose a conditional sentence on Mr. Ngabirano, withoutany mandatory jail time. AB and OY, the other participants in the offences, were both under 18 and were prosecuted under the YouthCriminal Justice Act, SC 2002, c 1. They were each subject to a deferred six months’ custody order.

Defence counsel argues that thereis no compelling reason why Mr. Ngabirano should get a more significant sentence than two other people who committed exactly thesame offences, simply because there is a slight age difference between them. [31] The Crown agrees that the parity principle is a relevant consideration but says that it has been taken into account in itsproposal of a 15-month custodial sentence. [32] I do not accept the defence’s submission that the sanctions imposed on the other two assailants dictate the sentence given toMr. Ngabirano.

The parity principle does not mean that exactly the same sentence will necessarily be imposed on each participant in acrime. The court must consider each offender’s individual circumstances. In this case, Mr. Ngabirano’s age is relevant, because of theway our laws distinguish between the moral culpability of a youth who commits an offence and an adult who commits the same offence. An adult is assumed to be more mature, and to take more responsibility for his actions, than someone who is 16 or 17 years old. [33] I have already reviewed the facts and outcome in Nassri.

Three other cases were presented for my consideration: R. v.Semionov, ; R. v. Cadienhead, 2014 ONSC 618; and R. v. Marzouk, 2021 ONCA 855. [34] In Semionov, the Court of Appeal upheld a conditional sentence imposed on a youthful offender who pleaded guilty to threerobberies, all of which involved the use of a weapon, and a charge of dangerous driving arising from Mr. Semionov’s attempt to evadepolice after the third robbery.

The Court agreed that the principles of general deterrence and denunciation were important considerationsand found that the trial judge was alive to those principles, as well as the seriousness of the offences. Given that the judge hadcommitted no error of principle, and the evidence with respect to the offender, the Court deferred to his judgment, stating at para. 7 that: The trial judge in this case had a difficult task. His reasons demonstrate a careful consideration of all of the relevant factors and a carefulattempt to balance the competing interests at stake in a sentencing proceeding.

He ultimately chose to impose a sentence that wouldpromote the continued rehabilitation of the respondent and thereby afford long term protection to the community. [35] In Cadienhead, Spies J. sentenced an offender who committed robbery in conjunction with a carjacking to 12 months to beserved in the community followed by two years of probation. The victim drove his car to a prearranged location, where he believed hewould be selling electronics to two men. When he met with the men, he was instead threatened with what he thought was a gun, and thetwo men got into his car and drove off. [36] Because Mr.

Cadienhead was not charged with a weapons offence, he was tried for robbery only. Mr. Cadienhead had asomewhat troubled and unstable personal history. He frequently missed appointments while on pre-trial release but had completed 50hours of community service as ordered. According to the author of a pre-sentence report, Mr. Cadienhead continued to have “negativepeer associations, poor problem solving and decision-making skills”, and would benefit from counselling.

Spies J. found that Mr.Cadienhead had planned a “brazen” daylight robbery in a busy public place and that innocent people could have been hurt as the carcarrying Mr. Cadienhead and his accomplice sped off. The victim had been robbed of property of significant value, some of which hadnot been recovered. Mr. Cadienhead exhibited no remorse and was convicted after trial. On the other hand, he had strong familysupport, and was a youthful first time offender.

Taking all of these factors into account, and notwithstanding some significantaggravating factors, Spies J. concluded that the goals of sentencing were best served by a conditional sentence with terms amounting tohouse arrest. [37] Cadienhead is authority for the proposition that a conditional sentence may be appropriate for an offender with lowerrehabilitative prospects than someone like Mr. Ngabirano. [38] Marzouk was another carjacking at a prearranged meeting, at which the victim was forced out of his car at gunpoint (althoughthe firearm, as it turned out, was not real). Following a trial, Mr.

Marzouk was convicted of robbery and sentenced to three years in jail. On appeal, he argued that the sentencing judge over-emphasized general deterrence and denunciation and failed to take into account hisyoung age and lack of record. The Crown conceded that Mr. Marzouk had excellent rehabilitative prospects. The Court reduced thesentence to two years less a day followed by one year of probation, noting at para. 23 that “when sentencing a youthful first offender,even for very serious offences justifying incarceration, rehabilitation remains an important consideration”.

It concluded that apenitentiary sentence was not warranted, given evidence that Mr. Marzouk had completed a university degree since his arrest, had astrong family network and established community ties. [39] The Crown argues that Marzouk, together with Nassri, show that a custodial sentence is required when the defendant isconvicted of robbery, even if he is a young first time offender. I do not accept this, as the decisions in Semionov and Cadienheadillustrate that judges can and should tailor sentences to the individual circumstances of each case. When Mr.

Marzouk was sentenced,the Code prohibited the imposition of a conditional sentence in a case like his. That has since changed. I have not been presented withany appellate authority stating that a custodial sentence is required in every case involving robbery and kidnapping, regardless of theparticular circumstances of the offender and the offence, and without consideration for how sentencing objectives can best be achieved.The Criminal Code does not impose a mandatory minimum for any of the offences for which Mr.

Ngabirano has been convicted. [40] Of the cases presented at the sentencing hearing, I find that the two cases that most resemble this one are Nassri andSemionov. Those cases, like this one, involve young offenders with no prior criminal record (although, in Nassri as in this case, the

offender failed on one occasion to comply with his bail recognizance for the current offence). In those two cases, as here, the offenderwas living with family members; taking courses in college or university and/or working. Each offender had strong family support, asdoes Mr. Ngabirano. Mr. Semionov and Mr. Ngabirano both pleaded guilty, albeit, in Mr. Ngabirano’s case, after a voir dire on theadmissibility of a confession. All three offenders committed one or more armed robberies, but none of them wielded a weapon and noneinvolved an actual firearm. [41] This is not to say that there are no factual distinctions.

Mr. Ngabirano’s crimes are arguably more serious than Mr. Nassri’sbecause he directly confronted his victims and there were two separate offenses on a single evening. As noted by the trial judge in thatcase, however, Mr. Nassri was involved in a bank robbery in a public place and his companions wielded weapons that could have causedsignificant harm. The crimes committed by Mr. Semionov and Mr. Nassri both involved significant planning and preparation not inevidence here. In Semionov, there was a substantial risk of harm to innocent bystanders during a highspeed chase.

Neither Semionov norNassri involved an offender at risk of deportation. [42] Critically, the sentencing judges in Nassri and Semionov both found that specific deterrence was not an issue and that eachoffender’s rehabilitation was already well underway. I make the same findings here. Mr. Ngabirano has repeatedly expressed remorsefor acts that were, I find, out of character for him. He has taken significant steps to rehabilitate himself. Since his arrest, he has pursuedfurther education, worked steadily, stopped consuming marijuana, and distanced himself from bad influences.

According to the authorof the pre-sentence report, whose job it is to supervise offenders in the community, Mr. Ngabirano would present no threat if given aconditional sentence. There is an additional factor in this case: Mr. Ngabirano will be powerfully motivated to comply with the court’sorders, given the consequences to his immigration status if he does not. [43] Having carefully considered the facts in this case, I am of the view that the sentence proposed by the Crown is too harsh,given that it would almost certainly result in Mr.

Ngabirano’s removal from Canada to Burundi, an unstable, impoverished, violentcountry. As Sharpe JA wrote at para. 33 of Nassri: “It is self-evident that depriving the appellant of the right to appeal deportation to oneof the most dangerous places on Earth would be grossly disproportionate to this offence and this offender and would contravene thesentencing principle of individualization”. [44] The primary objectives in sentencing a youthful first offender are specific deterrence and rehabilitation: R. v. Priest (1996), (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (ONCA), and Nassri, at para. 30.

I do not think that a 15-monthjail term is necessary to accomplish these objectives in this case. In R. v. Proulx, 2000 SCC 5, at para. 127, the Supreme Court ofCanada held that the goals of general deterrence and denunciation also may be achieved through the imposition of a conditional sentencein appropriate circumstances. In this case, I am satisfied that allowing Mr. Ngabirano to serve some or all of his sentence in thecommunity would not endanger the safety of the community and would be consistent with the fundamental purpose and principles ofsentencing. [45] This leaves me with the choice of sentencing Mr.

Ngabirano to a conditional sentence of two years less a day, or some othercombination of conditional and custodial time that involves less than six months in prison. In any event, the defence concedes that aconditional sentence should be followed by three years of probation. [46] The Court of Appeal’s decisions in Semionov and Nassri show that similar cases can yield different results. In Semionov, theCourt upheld a conditional sentence for an offender involved in three robberies in which weapons were used and the offender led policeon a highspeed chase.

In Nassri, the Court of Appeal held that the offender, the get away driver in a single bank robbery, merited a six-month custodial sentence. This underscores the individualized nature of sentencing. Disposition [47] Mr. Ngabirano, could you please stand. [48] You participated in stupid, reckless, and criminal acts on February 18, 2020. Robbery and kidnapping are serious crimes,especially when victims are threatened with what they believe is a gun. Your actions terrified a young woman and made another victimfear for his safety while doing his job.

You are lucky that no one got seriously hurt. [49] I conclude that you must serve some period in custody to denounce what you did and to deter others from committing similaracts. I would have been inclined to allow you to serve your entire sentence in the community if your only offence had been attempting torob Ms. Arora. But after you and your companions ran away without getting her car keys, you made a conscious decision to kidnap androb Mr. Dhillon, knowing that one of your companions had an imitation firearm and was prepared to threaten people with it.

You had achance to think again that night, to go home and go to soccer practice the next day, and you did not take it. [50] I do not think what you did that night reflects who you are, though. I think you fell in with the wrong company and made baddecisions as a result. You have since worked hard to put yourself back on the right track, graduating from high school, almost completinga college degree, and getting work. In my view, you are someone who can contribute to Canadian society. You have a sister and brotherwho support you, good friends, access to further education, and employers who are willing to hire you.

I am trusting in your sister’sdescription of you and my own impression of you. It is up to you to decide whether what you did one evening when you were 18 willruin your life. Please do not to waste the chance that you are being given to stay in Canada and to have a happy, safe, and successfulfuture. [51] Mr. Ngabirano, I hereby sentence you to a custodial sentence of three months, followed by 21 months minus a day to beserved in the community, followed by three years of probation.

The sentence consists of 18 months for the robbery, and 18 months forthe kidnapping, to be served concurrently; and six months minus a day for the weapons charge, to be served consecutively. You willreceive credit for three days you spent in pre-sentencing custody that will reduce the custodial sentence you will serve for robbery andkidnapping, so the total time you will spend in custody is 87 days. The probation is part of your sentence for the robbery and kidnappingcharges.

[ 52 ] During your conditional sentence, you must comply with the following terms: • You shall report to a community supervisor as required. You shall not change your address without the prior written approval of your supervisor. You shall engage in any counselling that your supervisor directs; • You shall perform 75 hours of community service in total for the robbery and kidnapping offenses. The form of community service shall be selected or approved by your community supervisor.

During the first six months of your conditional sentence, you shall complete 25 hours of community service, then 25 more hours during each of the next six months. You shall provide proof satisfactory to your community supervisor that you have completed the required hours of community service; • During the first 18 months of your conditional sentence, you will be under house arrest.

You shall remain in your place of residence at all times except for the purposes of attending school or school related events; going to work; reporting to your community supervisor; attending any counselling approved by your supervisor; attending religious services; getting medical treatment; consulting with your lawyer or attending in court or before an administrative tribunal; participating in community service; or at any other time approved in writing in advance by your community supervisor; • During the last three months minus four days of your conditional sentence, you shall be subject to a curfew.

This means that you will be required to be in your residence every day between 10:00 p.m. and 6:00 a.m., unless there is a medical emergency; • You shall not possess any weapons as defined by the Criminal Code ; • You shall not have any contact, direct or indirect, with anyone known to you to have a youth court record or a criminal record, including the two individuals involved in the crimes on February 18, 2020; • You shall remain at least 250 metres from any victims or witnesses to the offences you have committed and have no direct or indirect contact with them; and • You shall keep the peace and be of good behaviour. [ 53 ] If you breach any term of the conditional sentence, you will be brought back before this court and very likely be ordered to serve the balance the conditional sentence in jail, as well as any additional penalty that could be imposed if you have violated the law.

And, of course, you will probably lose the right to appeal a removal order from Canada. [ 54 ] During your three years of probation, I order you: • To report as required to your probation officer; • To engage in any counselling that your probation officer directs; • To have no contact, direct or indirect, with anyone known to you to have a youth court record or a criminal record, including the two individuals involved in the crimes on February 18, 2020; • To remain at least 250 metres from any victims or witnesses to the offences you have committed and have no direct or indirect contact with them; and • To keep the peace and be of good behaviour. [ 55 ] I prohibit you from possessing any weapons for a period of ten years, under s. 109 of the Criminal Code .

I order you to provide a DNA sample. The victim surcharge is waived. Justice Sally Gomery Released: March 13, 2023 CITATION : R. v. Ngabirano, 2023 ONSC 1706 COURT FILE NO.: 20-47506 DATE: March 13, 2023

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS Majesty the KINg – and – MIGUEL NGABIRANO SENTENCE Justice Sally Gomery Released: March 13, 2023