COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moreira, 2021 ONCA 507

DATE: 20210714

DOCKET: C67785

Miller, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Moreira

Appellant

Margaret Bojanowska, for the appellant

Michael Fawcett, for the respondent

Heard: June 18, 2021 by video conference

On appeal from the sentence imposed on
    April 29, 2019 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, with
    reasons reported at 2019 ONSC 2648.

Paciocco J.A.:

OVERVIEW

[1]

Zaher (Zack) Noureddine died after being
    brutally beaten on December 29, 2015. A jury convicted Matthew Moreira of
    manslaughter in Mr. Noureddines death, and of robbing Mr. Noureddines
    companion, Mitchell Conery, during the same incident.

[2]

The sentencing judge imposed a global sentence
    on Mr. Moreira of 13 years imprisonment: 12 years for the manslaughter and 1 year
    consecutive for the robbery. As Mr. Moreira had already served the equivalent
    of 4 years and 7 months in pre-sentence custody, the sentencing judge imposed a
    net sentence of 8 years and 5 months.

[3]

Mr. Moreira seeks leave to appeal his sentence
    and raises numerous grounds of complaint. Most significantly, Mr. Moreira
    argues that the sentencing judge, who also presided over the jury trial in this
    case, erred in determining the factual basis for Mr. Moreiras manslaughter
    conviction and in assessing his degree of fault.

[4]

For reasons that follow, I would grant leave to
    Mr. Moreira to appeal from sentence and allow his sentence appeal on this
    ground. I would also accept his ground of appeal that the sentencing judge
    materially misapprehended the evidence in considering whether to give him credit
    for harsh conditions of pre-sentence custody, pursuant to this courts decision
    in
R. v. Duncan
, 2016 ONCA 754, [2016] O.J. No. 5255.

[5]

Based on these two errors, I would set aside the
    12-year global sentence imposed on Mr. Moreira for the offence of manslaughter.
    After rectifying both errors, I would substitute a global sentence of 10 years.
    I would not interfere with the one year of consecutive imprisonment for the
    robbery. After credit for pre-sentence custody, I would therefore substitute a
    net sentence for the two offences of 6 years and 5 months.

MATERIAL FACTS

(a)

The Attack and Key Trial Evidence

[6]

Around midnight on December 29, 2015, Mr.
    Noureddine and Mr. Conery were accosted by William Cummins, Patrick Smith, and
    Mr. Moreira. Both Mr. Noureddine and Mr. Conery were attacked in the ensuing
    altercation. Tragically, Mr. Noureddine died as the result of a savage beating.
    He suffered a ruptured artery in his neck, which caused a brain bleed that led
    to his death. Mr. Cummins, Mr. Smith, and Mr. Moreira were subsequently
    apprehended and charged.

[7]

Prior to their joint trial, Mr. Cummins fired
    his lawyer. As a result, his trial was delayed. The trial of Mr. Smith and Mr.
    Moreira went ahead. They were tried jointly by a jury on charges of first-degree
    murder in the death of Mr. Noureddine, contrary to s. 235(1) of the
Criminal

Code
, R.S.C. 1985, c. C-46, and with robbery, arising from the
    assault on Mr. Conery, contrary to s. 343(c) of the
Criminal

Code
.

[8]

During the trial, Mr. Conery testified that he
    and Mr. Noureddine had been at a bar on the night in question. After leaving the
    bar, they were walking to Mr. Conerys car when three men emerged from an
    alleyway and moved towards them. Mr. Conery said that, without warning or
    provocation, he was immediately sucker punched and knocked to the ground by
    one of the three men.

[9]

Mr. Conery and other witnesses to the incident
    confirmed that Mr. Noureddine was also set upon. They testified that he too was
    knocked to the ground, and then kicked repeatedly in the head. One witness likened
    the force of the kicking to Mr. Noureddines head to someone trying to kick a
    soccer ball across a field.

[10]

Several witnesses testified that only two of the
    three men took part in the attack on Mr. Noureddine. It is not contested that
    those witnesses were referring to Mr. Cummins and Mr. Smith, who were identified
    based on their large stature relative to the third man, Mr. Moreira. Indeed, on
    Mr. Conerys evidence, only the two larger men participated in the attack on
    Mr. Noureddine. Mr. Conery testified that during the attack on Mr. Noureddine, the
    smaller man, Mr. Moreira, tapped Mr. Conery with his foot and told him that if
    he handed over his wallet, the attack would end.

[11]

By contrast, only one witness, Michael Bruton,
    testified to having seen three men attacking Mr. Noureddine.

(b)

The Jury Charge and the Verdicts

[12]

While presiding over the trial, the sentencing judge
    instructed the jury that they could find Mr. Moreira guilty of first-degree
    murder, second-degree murder, or manslaughter. It is unnecessary to say more
    about the jury charge relating to first-degree murder.

[13]

The sentencing judge instructed the jury that
    there were three possible bases for convicting Mr. Moreira of second-degree
    murder: (1) through participation in the physical assault on Mr. Noureddine with
    the requisite intent for murder; (2) by aiding Mr. Smith in committing the
    offence of second-degree murder knowing that Mr. Smith had the requisite intent
    for murder; or (3) by common design, through agreement with Mr. Smith to
    participate in robbing Mr. Noureddine, knowing that Mr. Smith would probably
    cause the death of Mr. Noureddine with the requisite intent to commit murder.

[14]

The sentencing judge instructed the jury on two pathways
    to convicting Mr. Moreira of manslaughter: (1) through participation in the
    physical assault, without the requisite intent for murder; or (2) by aiding Mr.
    Smith in committing the offence of murder or manslaughter knowing that Mr.
    Smith would commit the unlawful act of assaulting Mr. Noureddine in a manner
    that would put Mr. Noureddine at risk of bodily harm but Mr. Moreira did not
    foresee that he would cause the death of Mr. Noureddine.

[15]

The sentencing judge did not instruct the jury
    directly on the findings they could make relating to the aid or encouragement that
    Mr. Moreira was alleged to have given Mr. Smith. However, in summarizing the
    evidence, he referred to Mr. Conerys testimony about Mr. Cummins, Mr. Smith,
    and Mr. Moreira walking in a cluster and moving in a diagonal direction in
    front of [Mr. Conery and Mr. Noureddine], immediately before Mr. Conery was
    sucker punched and knocked to the ground.

[16]

The sentencing judge also summarized the Crown
    theory at trial that, even if the jury had a reasonable doubt that Mr. Moreira
    physically participated in the attack, the evidence showed that Mr. Moreira nonetheless
    supported [Mr.] Cummins and [Mr.] Smith. The sentencing judge instructed the
    jury that the Crowns theory of support or aid was that Mr. Moreiras comment
    to Mr. Conery, give me your wallet and its all over, was an admission that
    the death of Mr. Noureddine and the robbery of Mr. Conery are clearly
    connected. In the trial Crowns submission, this admission effectively made Mr.
    Moreira a party to the killing of Mr. Noureddine by robbing Mr. Conery.

[17]

The jury returned verdicts acquitting Mr. Smith
    and Mr. Moreira of the charged offence of first-degree murder in the death of
    Mr. Noureddine but convicting them both of included homicide offences. Of
    importance to this appeal, their homicide convictions differed; Mr. Smith was
    convicted of second-degree murder, but Mr. Moreira was convicted of
    manslaughter. Also noteworthy is that only Mr. Moreira was convicted of robbing
    Mr. Conery. Mr. Smith was convicted of assaulting Mr. Conery but acquitted of
    robbing him.

(c)

Sentencing

[18]

In light of the mandatory minimum sentence for
    second-degree murder, Mr. Smiths sentencing was straightforward. He was given
    the minimum sentence of life imprisonment, and the sentencing judge set his
    parole ineligibility at 12 years.

[19]

Mr. Moreiras sentencing was more complex. A
    jury gives a general verdict without reasons and, as explained, there were
    different legal pathways to finding Mr. Moreira guilty of manslaughter given to
    this jury for consideration. It therefore fell to the sentencing judge to
    resolve the factual basis for Mr. Moreiras conviction.

The factual basis for Mr. Moreiras manslaughter
    verdict

[20]

During sentencing submissions, the factual basis
    for Mr. Moreiras manslaughter verdict was discussed. The Crown submitted that
    Mr. Moreira had been convicted of manslaughter as a principal who participated
    in the illegal attack that caused Mr. Noureddines death, but that he had played
    a different role than his associates, Mr. Cummins and Mr. Smith, who had beat
    Mr. Noureddine. The Crowns theory was that Mr. Moreira, who was present
    throughout the altercation, asserted control over the attack to make sure that Mr.
    Conery and Mr. Noureddine would be beaten so that they could be successfully
    robbed.

[21]

Mr. Moreiras defence counsel argued that the
    jury must have convicted Mr. Moreira as a party who aided the offence and not
    as a principal, because the bulk of the evidence pointed only to Mr. Cummins
    and Mr. Smith as having assaulted Mr. Noureddine.

[22]

The sentencing judge rejected both parties submissions
    regarding the basis for the verdict. He disagreed expressly with defence
    counsels submission, and in doing so offered his own conclusions about the
    factual basis for Mr. Moreiras manslaughter conviction. After describing the
    defence submission, the sentencing judge said as follows:

I disagree and find that the evidence at trial
    supports Mr. Moreiras role as principal or aider in the factual matrix.

One witness, Michael Bruton, testified that he
    saw three men attacking Mr. Noureddine. If that were the case, Mr. Moreira had
    to be physically involved in the beating. The jury may well have accepted his
    evidence as their basis for finding that Mr. Moreira was guilty of manslaughter
    by physically assaulting Mr. Noureddine but lacking the state of mind required
    for murder. Alternatively, the jury might have found that Mr. Moreira was an
    aider or an abettor, providing assistance in some way or encouraging the attack.

In my view, the difference is immaterial:
    whichever route is accepted, Mr. Moreira was equally culpable in Mr.
    Noureddines death. By uttering words to the effect of give me your wallet and
    this will end to a prone Mr. Conery, Mr. Moreira demonstrated that he was part
    of the attack on Mr. Noureddine and that, at a minimum, believed he had the
    power and authority to terminate it.

[23]

These same findings also disclose the sentencing
    judges rejection of the factual foundation for the manslaughter conviction
    that the Crown had advanced. Specifically, the sentencing judge stopped short
    of finding that Mr. Moreira asserted control over the attack, finding only that
    at a minimum, [Mr. Moreira]
believed
he had the power and authority to
    terminate [the attack] (emphasis added).

[24]

The subjective belief of an offender cannot
    constitute an act of aiding or abetting or satisfy the Crown theory of the
    factual basis for the conviction. As I interpret the sentencing judges
    comments, he therefore concluded that the factual basis for the jurys
    manslaughter conviction was either that Mr. Moreira had participated directly
    in the physical assault leading to Mr. Noureddines death, or that he had aided
    Mr. Smith and Mr. Cummins, providing assistance in some way or encouraging the
    attack.

Aggravating factors and range of sentence

[25]

The sentencing judge then went on to identify a
    number of aggravated features in the case, including that it was a
    pre-meditated, unprovoked, brutal assault on two unsuspecting, defenceless
    strangers outnumbered by their assailants, in which numerous blows of
    considerable force were delivered to Mr. Noureddines head, one of the most
    vulnerable parts of the body.

[26]

The sentencing judge further noted that, given Mr.
    Smiths acquittal on the robbery charge, the jury had necessarily found that he
    was not a party to Mr. Moreiras demand for Mr. Conerys wallet. This left the
    purpose of the joint attack unexplained, and therefore an apparently random
    and senseless killing. This, of course, was further repudiation of the Crowns
    alleged basis for the manslaughter conviction.

[27]

The sentencing judge then commented on an
    elevator security camera video captured shortly after the incident (the
    elevator video), calling it the most disturbing evidence in this case. He described
    the elevator video as follows:

It shows Mr. Smith and Mr. Cummins
    enthusiastically re-enacting parts of their assault on Mr. Noureddine as on
    looking Mr. Moreira grins in apparent approval. All three men leave the elevator
    in a triumphalist fashion, seemingly well pleased at their handiwork.

[28]

The sentencing judge found that none of the men
    knew at the time of their celebration that Mr. Noureddine had died, but knew he
    had been begging for mercy as he was repeatedly kicked.

[29]

The sentencing judge also described the powerful
    victim impact statements that had been presented.

[30]

After reviewing several authorities advanced by
    the parties, the sentencing judge decided that the range of the sentence for
    the offence of manslaughter in this case was 10 to 15 years.

Mr. Moreiras personal circumstances

[31]

Before sentencing Mr. Moreira, the sentencing judge
    considered his personal circumstances. At the time of sentencing, he noted that
    the 35-year-old Mr. Moreira had an 8-year-old daughter. He found that Mr.
    Moreira had a troubled background but that he now enjoyed the support of his
    family and life-partner, whom he met in 2016, after the attack on Mr.
    Noureddine and Mr. Conery.

[32]

The sentencing judge also noted that Mr. Moreira
    had filed character references from family, friends, and fellow inmates, and
    that since being incarcerated for this offence, [Mr. Moreira] has completed a
    number of educational courses
although, as the Crown points out, the courses
    were taken and completed since his conviction
 (emphasis added). The
    sentencing judge subsequently mentioned Mr. Moreiras rehabilitative efforts
    while incarcerated, saying, He appears to have taken educational courses
    although this must be viewed in light of the fact that
some of the courses
    were taken after conviction
and might have been in the hope of alleviating
    the length of sentence (emphasis added).

[33]

Notwithstanding these positive signs, the
    sentencing judge commented that the optimistic comments and references which
    purport to ensure that Mr. Moreira does not once more stray into the paths of
    criminality must be tempered with Mr. Moreiras criminal record and history of
    continually breaching probation orders. Mr. Moreiras lengthy criminal record
    included several convictions for violence, and he was on probation at the time
    of the offence. The sentencing judge ultimately concluded that Mr. Moreiras
    prospects for rehabilitation are poor, given this history.

Mr. Moreiras written statement

[34]

Of importance, the sentencing judge also expressed
    disapproval of the written statement that Mr. Moreira read out in court during
    his sentencing hearing. The sentencing judge found that the statement was not
    an expression of remorse, but, in fact, an expression of regret of the
    situation he now finds himself in after being convicted.... The statement was
    all about Mr. Moreira and his loss and inability to see his daughter.

[35]

The sentencing judge therefore found that remorse
    was not a mitigating factor in Mr. Moreiras case.

Duncan
credit and imposition of sentence

[36]

Before apportioning Mr. Moreiras sentence, the
    sentencing judge noted that the Crown sought 14 years in custody, comprised of
    10 to 12 years for manslaughter and 2 years for robbery. On the other hand, he noted
    that the defence sought a 5-year sentence for manslaughter, and a concurrent
    sentence of 18 months to 2 years imprisonment for the robbery.

[37]

At the outset of his reasons, the sentencing
    judge explained that he would first determine a suitable global sentence and
    then apportion the quantity of time between the two offences. Applying this
    approach, the sentencing judge ultimately sentenced Mr. Moreira to 12 years imprisonment
    for manslaughter and 1 year consecutive imprisonment for the robbery. During
    sentencing submissions, the sentencing judge commented, correctly, that the
    robbery of Mr. Conery could not be an aggravating factor in determining Mr.
    Moreiras manslaughter sentence where a consecutive sentence is imposed.

[38]

The sentencing judge declined to give credit to
    Mr. Moreira, pursuant to
Duncan
, for harsh conditions of pre-sentence
    custody. In support of this decision, the sentencing judge explained that he
    did not have evidence of the impact of pre-sentence custodial conditions on Mr.
    Moreira, noting that findings of misconduct had been made against Mr. Moreira during
    his time in custody.

[39]

Accordingly, after allocating the equivalent of
    4 years and 7 months for the pre-sentence custody Mr. Moreira had served to
    date, the sentencing judge imposed a net sentence of 8 years and 5 months.

THE GROUNDS OF APPEAL

[40]

Mr. Moreira raises numerous grounds of appeal.
    In summary, he contends that the sentencing judge:

(a)

erred in determining the factual basis for Mr. Moreiras conviction,
    and in assessing Mr. Moreiras degree of fault;

(b)

misapprehended the evidence of the elevator video;

(c)

misapprehended the evidence in assessing Mr. Moreiras prospects of
    rehabilitation;

(d)

erred in imposing consecutive sentences for manslaughter and robbery;

(e)

erred in not awarding Mr. Moreira
Duncan

credit;

(f)

erred in failing to consider the case of
R. v. Triolo
, 2017
    ONSC 4726, despite it being advanced by Mr. Moreiras defence counsel, and

(g)

imposed a sentence that was harsh and excessive.

[41]

As I will explain below, I would accept grounds
    of appeal (a) and (e). Those errors affected the sentence. This makes ground of
    appeal (g) moot, so I will not address it further. Similarly, I will say no more
    about ground of appeal (f), since, in substance, it is linked to moot ground of
    appeal (g); the unstated premise of ground of appeal (g) is that, had the
    sentencing judge considered the
Triolo

decision, he would have
    imposed a fit sentence, rather than a harsh and excessive one. I would reject the
    remaining grounds of appeal.

ANALYSIS

(a)

The Basis for the Manslaughter Conviction and
    Degree of Fault

[42]

In my view, the sentencing judge erred in
    determining the factual basis for Mr. Moreiras conviction and in identifying
    his level of culpability.

[43]

In
R. v. M. (C.A.)
, [1996] 1 S.C.R.
    500, at para. 73, Lamer C.J. commented that, In our system of justice, the
    ultimate protection against excessive criminal punishment lies within a sentencing
    judges overriding duty to fashion a just and appropriate punishment which is
    proportional to the overall culpability of the offender. To achieve this
    objective, the quantum of sentence imposed should be broadly commensurate with
    the gravity of the offence committed and the moral blameworthiness of the
    offender:
R. v. M. (C.A.)
, at para. 40.

[44]

There is a wide range of culpable acts of
    variable gravity and many degrees of moral fault known to the criminal law. In light
    of Lamer C.J.s guidance, to make the kind of carefully calibrated assessment
    required to determine a proportional sentence, a sentencing judge must therefore
    identify, with some precision, the criminal act or omission of the offender, as
    well as their morally culpable state of mind.

[45]

In a jury trial, the factual findings required
    to identify a proportional sentence may not be evident, as jurors give general
    verdicts without elaborating on the precise findings they have made. To assist
    in overcoming this challenge, s. 724(2) of the
Criminal

Code
applies to fact-finding for the purposes of sentencing in a jury trial, once the
    jury has rendered its general verdict. Section 724(2) provides as follows:

Where the court is composed of a
    judge and jury, the court

(a) shall accept as proven all
    facts, express or implied, that are essential to the jurys verdict of guilty;
    and

(b) may find any other relevant fact
    that was disclosed by evidence at the trial to be proven, or hear evidence
    presented by either party with respect to that fact.

[46]

In
R. v. Ferguson
, 2008 SCC 6, [2008] 1
    S.C.R. 96, at paras. 17-18, McLachlin C.J. articulated two principles governing
    the task of a sentencing judge as contemplated in s. 724(2):

First, the sentencing judge is bound by the
    express and implied factual implications of the jurys verdict:
R. v.
    Brown
, [1991] 2 S.C.R. 518, at p. 523. The sentencing judge shall accept
    as proven all facts, express or implied, that are essential to the jurys
    verdict of guilty (
Criminal

Code
, s. 724(2)(a)), and
    must not accept as fact any evidence consistent only with a verdict rejected by
    the jury:
Brown; R. v. Braun
(1995), 95 C.C.C. (3d) 443 (Man. C.A.).

Second,
when the factual implications of
    the jurys verdict are ambiguous, the sentencing judge should not attempt to
    follow the logical process of the jury, but should come to his or her own
    independent determination of the relevant facts
:
Brown; R. v. Fiqia
,
    (1994), 162 A.R. 117 (C.A.).
In so doing, the sentencing judge may find any
    other relevant fact that was disclosed by evidence at the trial to be proven
(s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the
    sentencing judge must be convinced of the existence of that fact or conviction
    beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing
    judge must be persuaded on a balance of probabilities
It follows from the
    purpose of the exercise that the sentencing judge should find only those facts
    necessary to permit the proper sentence to be imposed in the case at hand. The
    judge should first ask what the issues on sentencing are, and then find such
    facts as are necessary to deal with those issues
. [Emphasis added.]

[47]

In view of these governing principles, a judge
    tasked with sentencing an offender based on a jury verdict must attempt to
    identify the express or implied factual implications of the verdict on material
    issues. If those factual implications are ambiguous or unclear, the sentencing
    judge must make their own determination of the relevant facts, but must not
    arrive at findings inconsistent with those necessary to the jury verdicts
    rendered: see e.g.,
R. v. L.M.
, 2014 ONCA 640, 122 O.R. (3d) 257, at
    paras. 48-51.

[48]

In Mr. Moreiras case, the sentencing judge
    concluded that the jurys pathway to conviction was ambiguous. Indeed, it was based
    on the finding that Mr. Moreira either (a) participated in the physical assault
    on Mr. Noureddine, or (b) aided or encouraged Mr. Smith in the fatal attack on
    Mr. Noureddine. The sentencing judge never resolved the ambiguity he
    identified. Instead, he concluded that the difference is immaterial. In my
    view, his approach was problematic, and in error, for several reasons. I will
    explain each reason in turn.

The sentencing
    judge erred by failing to make the requisite factual findings

[49]

First, the sentencing judge erred in determining
    Mr. Moreiras sentence based on his conclusions about what the jury
may have
    found
.

[50]

Section 724(2) of the
Code
and the
    decision in
Ferguson

reflect an expectation that offenders will
    be sentenced based on factual determinations, not contingencies. In my view, it
    is therefore an error to sentence an offender based on what he
could
have been found to have done, rather than on what he
has
been found to
    have done. If the sentencing judge was correct in determining that the specific
    factual foundation for the jurys conviction could not be identified, he should
    have made his own factual determination. I would find that he erred by not
    doing so.

The sentencing
    judge erred in assessing Mr. Moreiras role in the attack

[51]

Second, even if it had been available to the
    sentencing judge to sentence Mr. Moreira without finally resolving the nature
    of his involvement, the sentencing judge erred when inferring that the jury may
    have convicted Mr. Moreira as a participant, and therefore a principal, in the
    physical assault leading to Mr. Noureddines death.

[52]

Not even the Crown supported the participant path
    to conviction during sentencing submissions, and with good reason. When the
    relative verdicts against Mr. Moreira and Mr. Smith are examined together, as
    they should have been, it is not implicit, nor even probable, that the jury
    convicted Mr. Moreira as a principal. Indeed, the prospect that the jury did so
    is extremely remote. I will explain.

[53]

The jury convicted Mr. Smith of second-degree
    murder because Mr. Smith admitted that he had participated in the physical
    attack on Mr. Noureddine, an attack which was so brutal that Mr. Smith must
    have either meant to kill Mr. Noureddine, or to cause him bodily harm that Mr.
    Smith knew was likely to cause death and was reckless as to whether death
    ensued. Had the jury found that Mr. Moreira had also participated in the
    physical assault, the same inference arising from the nature of that attack would
    have followed, and Mr. Moreira would almost certainly have been convicted of
    second-degree murder, not manslaughter.

[54]

As such, upon finding that both Mr. Smith and
    Mr. Moreira had participated in the physical assault on Mr. Noureddine, the
    only plausible way that the jury could have found Mr. Smith guilty of
    second-degree murder and Mr. Moreira guilty of manslaughter would be if the
    jury had rejected Mr. Smiths intoxication defence but accepted Mr. Moreiras
    intoxication defence. It is evident that the sentencing judge did not consider
    this to be what the jury had decided, as he did not sentence Mr. Moreira on the
    premise that he was intoxicated when his crimes occurred.

[55]

Simply put, it was not at all implicit that
    the jury may have convicted Mr. Moreira of manslaughter as a participant. The
    sentencing judge failed to recognize this because he did not consider the
    impact of the verdict against Mr. Smith in determining whether Mr. Moreiras
    manslaughter conviction was linked to a jury finding that he had participated
    directly in the physical assault.

[56]

In sum, the sentencing judges conclusion that
    it was implicit in the jury verdict that Mr. Moreira may have been convicted as
    a principal who participated in the assault was arguably in error, and it was
    certainly arrived at in error, as his analysis was incomplete.

The sentencing
    judge erred by failing to identify the aid Mr. Moreira provided

[57]

Third, even if it had been available to the
    sentencing judge to sentence Mr. Moreira without finally resolving the nature
    of his involvement, the sentencing judge erred by failing to resolve the
    precise assistance that Mr. Moreira provided in the attack on Mr. Noureddine.

[58]

A jury cannot convict an accused person as an
    aider based on a generic finding that they played some undefined part in the
    crime charged. Nor can a proportional sentence be identified without defining
    the act of aid or of encouragement that was provided. Yet, in his reasons for
    sentence, the sentencing judge said that the jury might have found that Mr.
    Moreira was an aider or an abettor,
providing assistance in some way or
    encouraging the attack
 (emphasis added). The sentencing judges subsequent
    elaboration provides no support for this statement. Recall that he said as
    follows:

By uttering words to the effect of give me
    your wallet and this will end to a prone Mr. Conery, Mr. Moreira demonstrated
    that he was part of the attack on Mr. Noureddine and that, at a minimum,
    believed he had the power and authority to terminate it.

[59]

As I have explained, the sentencing judges
    finding about Mr. Moreiras state of belief is not an act of aiding or
    assistance; it is a subjective state of mind. What the sentencing judge did
    find, as he was entitled to find, was that Mr. Moreiras demand to Mr. Conery,
    give me your wallet and this will end, was an admission by Mr. Moreira that
    he was part of the attack on Mr. Noureddine. But what part did he play? The
    sentencing judge did not attempt to resolve this question. I would find that failing
    to do so was an error.

[60]

In my view, had the sentencing judge undertaken
    the requisite close and precise analysis of the jury verdict, he could have
    identified the implicit basis upon which the jury had found Mr. Moreira guilty
    of manslaughter. Quite clearly, by acquitting Mr. Smith of robbery, the jury
    necessarily rejected the theory of aiding that the Crown advanced at trial, namely,
    that the robbery and the attack were linked such that Mr. Moreiras demand for
    Mr. Conerys wallet aided in the attack on Mr. Noureddine.

[61]

The only remaining viable theory in play, given
    the evidence, the Crown submissions, and the jury charge, was that Mr. Moreira
    aided or encouraged the assault that caused Mr. Noureddines death by joining
    Mr. Cummins and Mr. Smith in moving in a diagonal direction in front of [Mr.
    Conery and Mr. Noureddine], so that Mr. Noureddine could be assaulted. The
    sentencing judge was alive to this theory during sentencing submissions, but
    unfortunately never alluded to it in his reasons for sentence.

[62]

Simply put, the sentencing judge either erred in
    sentencing Mr. Moreira on the basis that the jury may have convicted him as an
    aider, without resolving the nature of the aid or encouragement provided, or he
    erred by failing to give sufficient reasons that could reveal the aiding theory
    that he was relying upon in sentencing Mr. Moreira.

The sentencing
    judge erred in finding Mr. Moreira equally culpable

[63]

Finally, in my view the sentencing judge erred in
    concluding that it was unnecessary to resolve the factual basis for Mr.
    Moreiras manslaughter conviction because he would have been equally culpable,
    whether sentenced as a principal who participated in the physical assault on
    Mr. Noureddine, or as an aider.

[64]

In short, even leaving aside the other errors I
    have identified (each of which, on their own, would have precluded this line of
    reasoning) the culpability that Mr. Moreira would bear if convicted of aiding
    manslaughter would be less than he would bear if convicted of participating
    physically in the brutal assault on Mr. Noureddine. To be clear, I am not
    suggesting that an aider can never be as culpable as the principal perpetrator.
    The point is that, on this record, the finding of aiding against Mr. Moreira
    implicit in the jury verdict does not give rise to equal culpability when
    compared to a finding, if it were available, that Mr. Moreira had participated
    in the physical assault on Mr. Noureddine.

[65]

As I have explained, the available basis for finding
    that Mr. Moreira aided or encouraged the attack on Mr. Noureddine is that he
    helped Mr. Cummins and Mr. Smith intercept the two victims so that they could
    be assaulted. Of note, this act of aiding or encouraging occurred at the outset
    of the attack, before the physical assault was underway. There was no basis on
    the evidence for inferring that, when he gave this aid, Mr. Moreira would have
    been aware that such brutal force would be used by his two associates. Indeed,
    by acquitting Mr. Moreira of aiding in Mr. Noureddines murder, the jury
    foreclosed any suggestion that Mr. Moreira knew when he aided or encouraged his
    associates that they would exercise force that was likely to cause death.

[66]

There can be no doubt that Mr. Moreira bears a
    high level of culpability for aiding a planned, concerted, and unprovoked
    assault on two innocent men. However, as a matter of principle, his level of
    culpability is less than it would have been if he had joined directly in the gratuitous
    punching, kicking, and stomping of a defenceless Mr. Noureddine, even as Mr.
    Noureddine begged for his attackers to stop.

Conclusion on ground (a)

[67]

In sum, I would find that the sentencing judge
    erred in determining the factual basis for Mr. Moreiras conviction, and in
    assessing Mr. Moreiras degree of fault.

(b)

The Elevator Video

[68]

The sentencing judge considered the elevator
    video to be a significant aggravating factor in relation to both Mr. Moreira
    and Mr. Smith, calling it the most disturbing evidence in the case. He
    concluded that the elevator video depicted Mr. Moreira grinning with apparent
    approval as Mr. Cummins and Mr. Smith re-enacted their attack on Mr. Noureddine.
    The sentencing judge also found that the video showed Mr. Moreira, Mr. Cummins,
    and Mr. Smith leaving the elevator in a triumphalist fashion, seemingly well
    pleased at their handiwork.

[69]

Mr. Moreira argues that this is not a reasonable
    interpretation of his demeanour and conduct in the elevator video. He urges
    that the sentencing judge erred in making the findings he did.

[70]

I would not give effect to this ground of
    appeal. Others may not have interpreted Mr. Moreiras demeanour and actions in
    the elevator video as the sentencing judge did, but this was his determination
    to make and it is owed deference. I see no basis for interfering.

(c)

Mr. Moreiras Remorse and Prospects for
    Rehabilitation

[71]

I would also reject Mr. Moreiras ground of
    appeal regarding the sentencing judges alleged misapprehensions of evidence
    relevant to potential mitigating factors.

[72]

First, I do not accept that the sentencing judge
    erred regarding Mr. Moreiras statement during the sentencing proceedings. On
    the evidence, it was open to the sentencing judge to find that Mr. Moreira was not
    truly remorseful. I do not agree with Mr. Moreira that the only reasonable
    interpretation of his statement was that it expressed genuine remorse for his
    crimes. In that statement, Mr. Moreira expressed sorrow for what had happened
    to Mr. Noureddine, for being there when this happened, for not intervening,
    and for doing [his] own foolishness in robbing Mr. Conery. Crucially, Mr.
    Moreira did not acknowledge his role in the attack on Mr. Noureddine, nor
    apologize for it. Moreover, the written statement was heavily weighted toward identifying
    the impact of the events and the prosecution upon Mr. Moreira himself. I see no
    basis for interfering with the sentencing judges treatment of Mr. Moreiras
    written statement.

[73]

Second, I would reject Mr. Moreiras submission
    that the sentencing judge materially misapprehended the timing of his
    pre-sentence educational courses. Assuming, without deciding, that the sentencing
    judge erred in his findings relating to the courses Mr. Moreira took while in
    custody, any such error would be insignificant. At worst, the sentencing judge was
    mistaken on one occasion, but later got it right on the same point. As well, the
    timing of the coursework was not a central feature in the sentencing judges
    reasoning. As such, even if it could be said that he misapprehended the
    evidence, no miscarriage of justice occurred.

[74]

In all the circumstances, particularly given the
    absence of remorse, Mr. Moreiras lengthy criminal record, and his mature age,
    the sentencing judge was entitled to conclude that Mr. Moreiras prospects of
    rehabilitation are poor, notwithstanding his family support and his
    pre-sentence rehabilitative efforts.

(d)

Consecutive Sentences

[75]

Nor, in my view, did the sentencing judge err in
    imposing consecutive sentences for the robbery of Mr. Conery and the
    manslaughter of Mr. Noureddine. Those acts constituted separate crimes
    committed against different victims. Moreover, the sentencing judge made clear
    that he had determined Mr. Moreiras sentence by arriving at what he considered
    to be a fit global sentence, and then apportioning the quantity of time between
    the two offences.

[76]

I see no merit in this ground of appeal.

(e)

The
Duncan
Credit

[77]

Next, Mr. Moreira argues that the sentencing
    judge erred in denying him
Duncan

credit for the harsh
    conditions of his pre-sentence custody. Specifically, he contends that the
    sentencing judge erred in concluding that he had no evidence as to the effect
    of [the conditions at the Toronto South Detention Centre] and how they impacted
    Mr. Moreira. Mr. Moreira contends that there was such evidence on the record,
    and therefore that the sentencing judges decision not to give him
Duncan
credit was in error.

[78]

I agree with Mr. Moreira on this point. The
    evidence from Mr. Moreiras life partner  that on numerous occasions her scheduled
    visits to the detention centre were cancelled or cut short  provided
    circumstantial evidence of the effect of lockdowns on Mr. Moreira. Moreover,
    there were medical records before the sentencing judge supporting Mr. Moreiras
    submissions that he had been unable to access effective medical care for a
    broken hand and digestive problems while incarcerated, and that he had suffered
    a medical mishap affecting his mobility.

[79]

Of course, enhanced credit for harsh conditions
    of pre-sentence custody is a matter within the discretion of the sentencing
    judge:
Duncan
, at paras. 6-7;
R. v. Ledinek
, 2018 ONCA 1017,
    [2018] O.J. No. 6503, at para. 13. In this case, however, I would not defer to
    the sentencing judges finding. In my view, he erred in exercising his
    discretion by failing to consider relevant evidence that was before him.

DID THE ERRORS IDENTIFIED AFFECT MR. MOREIRAS SENTENCE?

[80]

An error in principle, the failure to consider a
    relevant factor, or the erroneous consideration of factors will justify
    appellate intervention only where it appears from the trial judges decision
    that such an error had an impact on the sentence:
R. v. Lacasse
, 2015
    SCC 64, [2015] 3 S.C.R. 1089, at para. 44. In my view, both of the errors I
    have identified impacted on the sentence.

[81]

First, the sentencing judges failure to resolve
    the factual basis for the manslaughter conviction undermined his ability to
    identify a proportionate sentence. Indeed, the sentencing judges conclusion
    that the factual basis for the jurys finding would not affect Mr. Moreiras
    culpability appears to have given the sentencing judge comfort in sentencing
    Mr. Moreira on the footing that he participated directly in the physical
    assault on Mr. Noureddine, without having made a finding that this was, in
    fact, the basis for the conviction. Specifically, at the end of his sentencing
    decision, just before imposing sentence, the sentencing judge summarized the
    crime for which Mr. Moreira and Mr. Smith stood to be sentenced:

Mr. Smith, Mr. Moreira, and Mr. Cummins
    emerged from the alleyway onto Lola Road with the express intention of
    inflicting harm on Mr. Conery and Mr. Noureddine. They headed directly towards
    the two men and attacked without reason or warning. They punched and stomped on
    Mr. Conery. They kicked, punched, and restrained Mr. Noureddine. They pummelled
    Mr. Noureddine with such force that onlookers believed that Mr. Noureddine was
    going to die as a consequence. They fled the scene when those bystanders came
    to assist. When they returned to their apartment building, they took great
    pleasure in reliving their act of battering and brutalising two complete
    strangers.

[82]

For the reasons I have expressed, treating Mr.
    Moreira as having participated directly in this reprehensible physical assault
    could have no other outcome but to amplify his level of culpability. In my
    view, he was sentenced as if he had physically participated, absent the
    requisite judicial determination that this was the factual basis for his
    conviction and notwithstanding that this theory of liability was almost
    certainly not the basis for the jurys verdict. As such, I would find that the
    errors the sentencing judge made in this regard were central to the sentence he
    imposed.

[83]

Second, the
Duncan

error also
    effected the outcome. As indicated, the sentencing judges explanation for
    denying
Duncan
credit was based, in material part, on a misapprehension
    of the evidence before him.

[84]

I would therefore grant leave to appeal and set
    aside the manslaughter sentence of 12 years.

A FIT SENTENCE

[85]

In my view, it is not necessary to consider
    whether to send this matter back to the sentencing judge to determine the
    factual basis for the conviction before we substitute a sentence, as in
R. v.
    Englehart
(1998), 124 C.C.C. (3d) 505 (N.B.C.A.), at pp. 510-12. As I will
    explain, the basis for the jurys manslaughter verdict can readily be
    determined on the record before us.

[86]

I have already expressed my view that it is not
    implicit in the jurys verdict that they found Mr. Moreira guilty as a principal
    for having participated in the physical assault. This prospect is so remote that
    it can fairly be disregarded. Rather, it is implicit that Mr. Moreira was
    convicted of manslaughter for having aided Mr. Smith at the outset of the
    assault by helping the assailants intercept the victims.

[87]

In sentencing Mr. Moreira, I would not give
    effect to the aggravating factors identified by the sentencing judge that do
    not bear on Mr. Moreiras crime, nor his determination of the range for a fit
    and appropriate sentence. That range was identified without a proper resolution
    of the factual basis for the conviction. Nor would I defer to the sentencing
    judges refusal to award
Duncan

credit. I would defer to all
    his other findings, and sentence Mr. Moreira for manslaughter as follows.

[88]

Mr. Moreira did not know the level of violence
    that would follow from his act of assistance. However, he was callously indifferent
    to that violence. His act of aiding an unprovoked and pointless attack on Mr.
    Conery and Mr. Noureddine reflected a total disregard for their well-being. His
    readiness to celebrate with his associates after the attack had unfolded in all
    its brutality shows just how disinterested he was in the consequences of the
    conduct he encouraged.

[89]

Mr. Moreiras crime is aggravated by his related
    criminal record, and the fact that he was on probation at the time of
    commission. Mr. Moreira has not demonstrated real remorse for his role in the
    attack. Denunciation, general deterrence, and specific deterrence are therefore
    the key sentencing goals in his case. Although Mr. Moreira did not foresee or
    participate directly in the killing of Mr. Noureddine, those relevant
    sentencing goals require a significant sentence.

[90]

Mr. Moreira played an indirect and early role in
    the attack, at a time when his mental state was mere indifference, and when he
    could not have foreseen the likelihood that his associates would use life-threatening
    force. As indicated, the sentencing judge mistakenly equated Mr. Moreiras
    moral culpability arising from this type of role with that of someone who directly
    participated in the brutal beating of Mr. Noureddine. Therefore, the 12-year
    sentence imposed for manslaughter was too high; Mr. Moreiras level of
    culpability for that offence is materially less.

[91]

Accordingly, after considering the punitive
    impact of the hardship of pre-sentence custody, pursuant to
Duncan
, I
    would impose a 10-year sentence for the offence of manslaughter, before credit
    for pre-sentence custody.

CONCLUSION

[92]

For the foregoing reasons, I would grant Mr.
    Moreira leave to appeal from sentence, set aside his manslaughter sentence of
    12 years, and impose a global sentence of 10 years for that offence. I would
    not disturb the consecutive sentence of 1 year imprisonment for robbery. This
    would result in a total global sentence of 11 years imprisonment.

[93]

Since the global sentence of 11 years I would
    impose is 2 years less than the 13-year global sentence imposed by the sentencing
    judge, the net sentence should be reduced by two years. The net sentence
    imposed on Mr. Moreira at the time of sentence, April 29, 2019, was 8 years and
    5 months. I would therefore substitute a net sentence of 6 years and 5 months,
    as of April 29, 2019.

Released: July 14, 2021 B.M.

David
    M. Paciocco J.A.

I
    agree. B.W. Miller J.A.

I
    agree. I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scholz, 2021 ONCA 506

DATE: 20210713

DOCKET: C67582

Miller, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Joern (John) Scholz

Respondent

Marie Comiskey, for the appellant

Jody Berkes and Cristina Candea, for
    the respondent

Heard: June 18, 2021 by
    videoconference

On appeal from the sentence imposed by
    Justice Andrew J. Goodman of the Superior Court of Justice, dated September 26,
    2019, with reasons reported at 2019 ONSC 5490.

Nordheimer J.A.:

[1]

The Crown appeals from the conditional sentence of
    two years less a day imposed by the trial judge following the respondents
    conviction for fraud over $5,000. For the reasons that follow, I conclude that
    the trial judge made errors in principle in imposing the sentence he did. I
    would allow the appeal.

Background

[2]

The respondent was charged on an indictment
    alleging three counts of fraud over $5,000. Counts 1 and 2 alleged frauds in
    relation to a unique Registered Retirement Savings Plan (RRSP) that the
    respondent created and marketed to approximately 300 investors. The investment
    involved the transfer of the respondents clients RRSP monies to Western
    Pacific Trust Company (WPTC) in Vancouver, B.C. and, thereafter, the purchase
    of shares of either Red Hill Capital or Northland Capital. In total, the
    respondent facilitated the transfer of over $22 million to WPTC.

[3]

Count 3 alleged that the respondent failed to
    declare the income received from facilitating these transactions on his
    personal income taxes and failed to remit the GST/HST he should have charged
    the investors.

[4]

The trial proceeded before a jury. The jury
    ultimately acquitted the respondent of counts 1 and 2 but convicted the
    respondent of count 3. Subsequent to the conviction, and after a
Gardiner
hearing
[1]
,
    the trial judge found that the appellant had not proved beyond a reasonable
    doubt that the quantum of this fraud exceeded $1 million.

[5]

At sentencing, the defence argued for a conditional
    sentence of imprisonment of between 18 months and 2 years less a day.
[2]
The Crown sought a sentence of
    imprisonment of three years and a $500,000 fine. Prior to passing sentence, defence
    counsel advised the trial judge that the respondent had deposited $100,000 in counsels
    trust account toward payment of any fine ordered. We were advised that that
    amount has since been paid.

The sentencing decision

[6]

The trial judge imposed a conditional sentence of
    two years less a day and a fine along with a victim surcharge.

[7]

In imposing a conditional sentence, the trial
    judge made certain factual findings. The trial judge also reviewed a number of
    decisions regarding the appropriate sentence, many of which he noted were
    dissimilar, either based on their facts or on the circumstances of the
    particular offender.

[8]

In reaching his conclusion on the appropriate
    sentence, the trial judge said, on more than one occasion, that this was not a
    tax evasion case. He also noted that, where conditional sentences had been
    imposed in major-scale fraud cases, there had been exceptional circumstances.

[9]

The trial judge mentioned certain aggravating
    factors in this case including the nature of the offence (the impact of tax
    fraud on the taxpayers of Canada), the role of the respondent over many years
    to commit the fraud, and the respondents professional designation as a
    Chartered Accountant, which helped him facilitate the fraud. The trial judge
    also found that the sole motivation for the offence appeared to be greed.

[10]

On the issue of the quantum of the fraud, the
    trial judge was not satisfied that the appellant had proven beyond a reasonable
    doubt that the amount of the fraud exceeded $1 million, although he also said
    that the amount may be close to the amounts asserted by the appellant, which totalled
    about $1.05 million.

[11]

In terms of mitigating factors, the trial judge
    pointed out that the respondent was a first-time offender. His actions were not
    driven by addiction or compulsion. The trial judge found that there were no
    bars to the respondents rehabilitation. He noted that the respondent enjoyed
    the support of his family for whom he was the primary breadwinner. The trial
    judge also noted that the respondent would lose his professional designation as
    a Chartered Accountant, as a result of the offence, and that his ability to
    earn an income would be adversely affected. He further noted that the
    respondent was the subject of ongoing audits by the Canada Revenue Agency.
    Lastly, the trial judge found that the respondent was a person of good
    character and that he had expressed remorse for his actions.

[12]

In determining the appropriate sentence, the
    trial judge relied on one other factor. He found that the lead investigator for
    the Ontario Securities Commission (OSC), where the investigation of the
    matter had begun, had acted in a heavy-handed manner. The trial judge said that
    he was persuaded that the conduct of the OSC investigator should play a
    collateral role in mitigation.

[13]

On the issue of a conditional sentence, the
    trial judge distinguished the cases relied upon by the appellant that held that
    a conditional sentence was not appropriate in such cases. In doing so, the
    trial judge said, [T]his is not a situation where [the respondent] committed
    the tax fraud as a breach of trust or in his professional capacity.

[14]

Finally, the trial judge said that the principle
    of specific deterrence was paramount, while general deterrence and denunciation
    needed to be achieved. He concluded:

It is trite law that a conditional sentence
    can include restrictive and punitive elements. In this case, I am persuaded
    that this form of sentence would provide the requisite deterrent elements. Such
    a disposition is in the best interests of the offender and is in the public
    interest.

Analysis

[15]

Appellate courts are
    instructed by the Supreme Court of Canada to give substantial deference to the
    sentencing decisions of trial judges. Appellate courts should only interfere
    with a sentence if it is demonstrably unfit or if the trial judge has committed
    an error in principle, failed to consider a relevant factor, or erroneously
    considered aggravating or mitigating factors, and such an error had an impact
    on the sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    paras. 41, 43-44.

[16]

At the same time, appellate courts perform an
    important task of ensuring, to the degree possible, that the principle of
    parity is properly applied in the sentencing process: see
Lacasse
, at para. 37
. In
    other words, that offenders who have committed similar crimes in similar
    circumstances receive similar sentences. To that end, appellate courts may
    establish sentencing ranges for particular offences. If that is done, those
    sentencing ranges are intended to serve as guidelines for sentencing judges. While
    a sentence imposed outside of the range is not necessarily unfit, it will naturally
    raise a question regarding fitness: see
R. v. Nasogaluak
, 2010 SCC 6,
    [2010] 1 S.C.R. 206, at para. 44. As LeBel J. said in
Nasogaluak
, at
    para. 44:

The wide discretion granted to sentencing
    judges has limits. It is fettered in part by the case law that has set down, in
    some circumstances, general ranges of sentences for particular offences, to
    encourage greater consistency between sentencing decisions in accordance with
    the principle of parity enshrined in the
Code
.

[17]

In my view, the trial judge committed two errors
    in principle in imposing the sentence that he did. First, he imposed a sentence
    that is outside the range established by this court for major frauds, and he
    did so without explaining the basis for departing from that range. Second, the
    trial judge failed to follow the necessary analytical process and consider all
    of the factors required before imposing a conditional sentence.

[18]

With respect to the first error, this court has an
    established range of three to five years as the sentence for major frauds:
R.
    v. Bogart
(2002), 61 O.R. (3d) 75 (C.A.), at para. 36, leave to appeal
    refused, [2002] S.C.C.A. No. 398;
R. v. Davatgar-Jafarpour
, 2019 ONCA
    353, 146 O.R. (3d) 206, at para. 34. It is a range of sentence that has been
    set for many years.
[3]
The trial judge acknowledged that a penitentiary term of imprisonment was the
    norm, although he stated the range as being two to six years. Regardless of
    which of those two ranges is accepted, the trial judge still departed from the
    range without explaining the reasons why he felt justified in doing so. On that
    point, I would reiterate the admonition in
Davatgar-Jafarpour
, at
    para. 32, where Roberts J.A. said, [S]entencing ranges cannot be arbitrarily
    ignored otherwise they become meaningless.

[19]

I do not propose to review all of the past
    decisions of this court dealing with the subject of the appropriate sentence
    for major frauds. Many of the older cases were reviewed in
R. v. Dobis
(2002), 58 O.R. (3d) 536 (C.A.), where MacPherson J.A. concluded, at para. 42:

However, in the end I am persuaded that the
    serious nature and consequences of the offences committed by the respondent
    required the imposition of a penitentiary sentence. There is a real need to
    emphasize denunciation and, especially, general deterrence in the realm of
    large-scale frauds committed by persons in positions of trust with devastating
    consequences for their victims, which is how I would characterize the offences
    in this case.

[20]

In this case, of course, there were no specific
    individual victims of the respondents offence. Rather, the victims were the
    taxpayers of Canada. The Government of Canada was deprived of tax revenue,
    which has the effect of increasing the tax burden on all other taxpayers in
    order to fund the work of the federal government. This very point was restated
    by this court in
Davatgar-Jafarpour
, at paras. 44-45. It was also made
    by the Quebec Court of Appeal in
R. c. Coffin
, 2006 QCCA 471, 210
    C.C.C. (3d) 227, where the court rightly said, at para. 46: Defrauding the
    government is equivalent to stealing from one's fellow citizens.

[21]

The need for a penitentiary term of imprisonment
    in major fraud cases has been reiterated in other decisions of this court,
    including
Bogart
, at para. 36;
R. v.
    Drabinsky
, 2011 ONCA 582, 107 O.R. (3d) 595, at para. 164, leave to appeal
    refused, [2011] S.C.C.A. No. 491; and
Davatgar-Jafarpour
, at para. 35.

[22]

Further, in considering the statement made by
    MacPherson J.A. in
Dobis
, at para. 42, it should also be mentioned
    that an offender does not have to be in a position of trust in order to warrant
    the penalty of a penitentiary term of imprisonment:
R. v. Khatchatourov
,
    2014 ONCA 464, 313 C.C.C. (3d) 94, at para. 39.

[23]

The trial judge does not refer to any specific factor
    that would have justified a departure from this established range of sentence. Factors
    that have led to a departure in the past have included a guilty plea; or the
    repayment of the monies taken; or that the offender played only a minor role in
    the fraud itself; or that the offender was at an advanced age; or that the
    offender had serious health issues. None of those factors are present in this
    case.

[24]

The mitigating factors that the trial judge did
    refer to, the fact that the appellant is a first-time offender and that he is
    of good character, are not factors that will operate to reduce the sentence in
    a fraud case below the usual range. This is because it is those very factors
    that generally permit the offender to commit the offence. This point was aptly made
    in
Drabinsky
, where this court said, at para. 167:

Second, individuals who perpetrate frauds like
    these are usually seen in the community as solid, responsible and law-abiding
    citizens. Often, they suffer personal and financial ruin as a result of the
    exposure of their frauds. Those factors cannot, however, alone justify any
    departure from the range. The offender's prior good character and standing in
    the community are to some extent the tools by which they commit and sustain
    frauds over lengthy time periods. Considerable personal hardship, if not ruin,
    is virtually inevitable upon exposure of one's involvement in these kinds of
    frauds. It cannot be regarded as the kind of unusual circumstance meriting
    departure from the range.

[25]

However, even assuming for the moment that the
    mitigating factors relied upon by the trial judge could justify a sentence
    below the low end of the three to five year range, they still would not justify
    less than a penitentiary term of imprisonment. That fact alone removes a
    conditional sentence as a sentencing option.

[26]

This leads to the second error in principle. In
R.
    v. Proulx
, 2000 SCC 5, [2000] 1 S.C.R. 61, Lamer C.J. set out the process
    that a trial judge should follow in determining whether it is appropriate to
    impose a conditional sentence. The first step in that process is to determine
    the proper sentence. In that regard, Lamer C.J. said, at para. 50:

A literal reading of s. 742.1(a) suggests that
    the decision to impose a conditional sentence should be made in two distinct
    stages. In the first stage, the judge would have to decide the appropriate
    sentence according to the general purposes and principles of sentencing (now
    set out in ss. 718 to 718.2). Having found that a term of imprisonment of less
    than two years is warranted, the judge would then, in a second stage, decide
    whether this same term should be served in the community pursuant to s. 742.1.

[27]

The trial judge did not make the preliminary
    determination that a sentence of less than two years was appropriate. Indeed,
    the trial judge never actually addressed what the appropriate sentence should
    be. Rather, he simply found that a conditional sentence was appropriate which
    required no greater sentence than two years less a day.

[28]

In my view, if the trial judge had first
    considered what an appropriate sentence was for the offence committed, he would
    have had to conclude that a penitentiary term of imprisonment was required.
    That finding, by itself, would have removed a conditional sentence as an
    option.

[29]

I should mention on this point that the trial
    judge not once, but on three separate occasions, mentioned that this was not a tax
    evasion case. He seems to have repeatedly made that point as a way of lessening
    the seriousness of the offence. Indeed, in his conclusion, he said that it was
    worth repeating that this is not a tax evasion case. However, the fact is
    that it was a tax evasion case. Admittedly, it was not a prosecution for tax evasion,
    but the basis of the fraud was the evasion of taxes. The choice to prosecute
    the offence as fraud over $5,000, rather than as tax evasion, does not change
    the seriousness of the conduct. Simply put, it does not change the fact that
    the respondent was convicted of orchestrating a large-scale fraud on the
    federal government and, thus, on the taxpayers of Canada.

[30]

I should address one other factor that played
    into the trial judges conclusion on the sentence and that is the role that the
    OSC investigators actions played in the overall prosecution. It is not
    entirely clear what basis the trial judge relied on to conclude that his
    concerns about the OSC investigators conduct should impact on the sentence
    imposed. In particular, it is not clear what the trial judge meant when he said
    that the conduct should play a collateral role in mitigation.

[31]

It was established in
Nasogaluak
, at
    para. 53, that a sentence can be reduced in light of state misconduct even
    when the incidents complained of do not rise to the level of a
Charter
breach. However, in this case, it is difficult to see how the OSC
    investigators conduct would have given rise to any significant reduction in
    the appellants sentence. I say that for one principal reason. The actions of
    the OSC investigator related to the two offences for which the respondent was
    acquitted. As was observed in
Nasogaluak
, at para. 4, [w]here the
    state misconduct does not relate to the circumstances of the offence or the
    offender no remedy by way of sentencing is appropriate.

[32]

In any event, even if a remedy of sorts was to
    be provided on that basis, it could not operate to reduce the sentence from a
    penitentiary sentence to a reformatory sentence, given the nature of the
    offence. The actions of the OSC investigator, as described by the trial judge,
    did not rise to the level required for that exceptional result.

[33]

Finally, I should address the concern that the
    sentence imposed by the trial judge can be justified because the appellants
    position on sentence might be seen as being a concession that a reformatory
    sentence was an available outcome.

[34]

First, I do not see that the appellant made any
    such concession before the trial judge. In fact, before the trial judge, the
    appellant sought a sentence of three years and strongly resisted any suggestion
    that a conditional sentence would be appropriate.

[35]

Perhaps unfortunately in this court, the
    appellant said in its factum that a fit and proper sentence is a 3 year jail
    sentence or in the alternative, a sentence of two years less a day imprisonment.
    However, in the very next paragraph, after reviewing the relevant case law, the
    appellant said, Based on this Courts jurisprudence a fit sentence for the
    Respondents major tax fraud of almost a million dollars is 3 years in the
    absence of any exceptional circumstance. Taken together, I do not read these
    statements from the appellants factum as being a concession that a reformatory
    term of imprisonment was appropriate. Indeed, all of the authorities cited by
    the appellant were directed at establishing that a conditional sentence was not
    available in this case.

[36]

However, even if it could be held that the
    appellant had made that concession, it is not binding on this court: see
R.
    v. Barabash
, 2015 SCC 29, [2015] 2 S.C.R. 522, at para. 54. This court
    must be satisfied that the sentence is a fit and proper one based on the existing
    authorities, including the range that this court has established for this
    offence. As I have endeavoured to set out, a conditional sentence was not
    properly available on the facts of this case.

[37]

Before concluding, I must address two issues
    that were raised by the respondent. First is the fact that the trial judge
    imposed a victim surcharge. Second, the respondent seeks a reduction in the
    fine imposed by the trial judge. He asks that the fine be reduced to the
    $100,000 that he paid shortly after he was sentenced.

[38]

Assuming, without deciding, that the issue of
    the appropriateness of the fine is open for our consideration in the absence of
    a cross-appeal, I would not interfere with the fine that the trial judge
    imposed. The respondent has not put any evidence before this court that would
    provide us with a proper basis for interfering with the fact that a fine was imposed
    by the trial judge nor with respect to the quantum of that fine.

CONCLUSION

[39]

I would grant leave to appeal the sentence, allow
    the appeal, and set aside the sentence imposed by the trial judge. In its
    place, I would impose a sentence of three years imprisonment. I would give the
    respondent credit for the time that he has spent on his conditional sentence to
    date which amounts to approximately one year and ten months. That leaves one
    year and two months remaining to be served. I would not interfere with any of
    the ancillary orders, including the fine imposed, save and except that the
    victim surcharge would be set aside.

[40]

A warrant for the arrest of the respondent may
    issue if required.

Released: July 13, 2021 B.M.

I.V.B.
    Nordheimer J.A.

I
    agree. B.W. Miller J.A.

I
    agree. David M. Paciocco J.A.

[1]
See
R. v. Gardiner
,
[1982] 2 S.C.R. 368 (disputed aggravating facts relevant to sentencing must be
    proved by the Crown beyond a reasonable doubt).

[2]
Given the time when the offence occurred, a conditional sentence
    was available for the offence of fraud over $5,000.

[3]

Even this sentence range must be approached with caution as
    it was set prior to the increase in the maximum sentence for fraud over $5,000
    from 10 to 14 years: see
R.
    v. Reeve
, 2020 ONCA 381, 151 O.R. (3d) 65, at para. 39.


COURT OF APPEAL FOR ONTARIO

CITATION: Moreton v. Inthavixay, 2021 ONCA
    501

DATE: 20210712

DOCKET: C68806

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Christian Moreton

Applicant

(Respondent)

and

Douangta Inthavixay

Respondent

(Appellant)

Michael H. Tweyman and Ashley Waye, for
    the appellant
Christian Moreton, acting in person
Caterina E. Tempesta and Jean Hyndman,
    for the Office of the Childrens Lawyer
Heard: June 30, 2021 by video conference
On appeal
    from the order of Justice James F. Diamond of the Superior Court of Justice,
    dated October 22, 2020, with reasons reported at 2020 ONSC 6267.
REASONS FOR DECISION
[1]

The appellant mother appeals from
    the final order that the parties children primarily reside with their father,
    the respondent, in Lindsay, Ontario (the relocation order), with substantial
    parenting time to the appellant.
[2]

The respondent moved to
    Lindsay in late September 2020, primarily for financial reasons. He resides in
    a spacious home on a large parcel of land that is owned by his father, from
    which he works on various consulting contracts. The home is a five-minute walk
    from the local elementary school where he has enrolled the children. The
    children have been living with their father in Lindsay since the release of the
    relocation order.
[3]

The relocation order varied
    the previous July 17, 2018 order of Kristjanson J. that the childrens
    primary residence was to be with the respondent in Toronto, with access granted
    to the appellant. While there have been some temporary changes, this was the
    longest standing arrangement before the relocation trial. The children are now
    12 and 8 years of age. The parties have been embroiled in high conflict
    litigation almost since their separation on October 1, 2017. The details of the
    adjournments and frequent litigation with which this file has been plagued are
    set out in numerous endorsements. The children have expressed to the clinician
    assisting the Office of the Childrens Lawyer (OCL) who represents their
    interests in these proceedings that they love their parents and simply want the
    conflict to end and their parents to get along.
[4]

By the September 1, 2020
    order of Shore J., the trial was bifurcated: the relocation and residential
    schedule of the children would be determined first in September 2020 because it
    was in the best interests of the children to have these issues heard as soon as
    possible, and the issues of custody and financial matters were ordered to be
    tried in December 2020 (the bifurcation order). The trial was peremptory on
    the appellant and respondent. On September 11, 2020, Shore J. dismissed the
    appellants request that she be permitted to proceed with a long motion on the
    issues of relocation and the childrens residential schedule and that a trial
    of those and the other outstanding issues be heard in December 2020. She noted
    that there had been 15 court attendances and 11 court orders at that point and
    that the evidence shows that the children were suffering because there had been
    no final resolution. She enumerated the history of the litigation, the various
    adjournments granted to the appellant, and set out accommodations for the appellants
    participation in the trial.
[5]

The appellants motion for an
    adjournment of the trial was dismissed by the order of Nishikawa J. dated
    September 16, 2020. The appellants motion for leave to appeal the bifurcation
    order was dismissed by the Divisional Court on September 22, 2020. The
    relocation order was granted on October 22, 2020. The appellants motion to
    stay the relocation order was dismissed by Pepall J.A. of this court on
December 9, 2020
.
[6]

The trial judge granted an adjournment of the
    second trial because the appellant retained counsel on the eve of the second
    trial. The second trial took place in February and March 2021 and judgment on
    the issue of custody/decision-making authority was released on April 23, 2021. Subject
    to an outlined consultation process with the appellant, the respondent was
    granted final decision-making authority with respect to major decisions
    concerning the children. The appellant has appealed that decision, which is not
    the subject of this appeal.
[7]

The appellant submits that the relocation order
    should be set aside because: 1) the trial judge erred by determining the
    question of the childrens relocation to Lindsay before deciding the issue of
    custody contrary to this courts decision in
Bjornson v. Creighton
(2002),
    62 O.R. (3d) 236 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 14; 2) the
    trial judge erred in his application of the law on relocation to the facts of
    this case; and 3) the trial proceeded in an unfair manner to the appellant
    whose adjournment and accommodation requests because of her disability went
    unheeded such that a new hearing is required.
[8]

We do not accept these submissions.
[9]

First, we do not read this courts decision in
Bjornson
as establishing an absolute rule or requirement that the
    issue of custody must be determined before the issue of relocation. Rather, the
    sequence depends on the circumstances of the case and, specifically, on the
    best interests of the children.
Bjornson
arose out of the particular circumstances of that case: the
    sequence in which the trial judge dealt with relocation and custody was
    criticized because it caused him to err  he did not make the depth of enquiry
    required in the circumstances and failed to give the evidence of the custodial
    parent the great respect or most serious consideration to which it was
    entitled.
[10]

Further, the bifurcation order here correctly determined
    the sequence of the proceedings. Echoing the sentiments of previous judges, as
    the trial judge observed, it was in the best interests of the children to have
    the relocation issue determined as quickly as possible to provide stability in
    their living arrangements, finality and closure. Dismissing the appellants
    motion for leave to appeal, the Divisional Court found that Shore J.s bifurcation
    and trial management decisions are clear, thoughtful and well-reasoned, fall
    well within the discretion available to the court in trial scheduling and other
    procedural matters, and were the only reasonable outcome in the particular circumstances
    of this case. We also note that the appellant had twice requested before Shore
    J. that she be permitted to proceed with a long motion on the issues of relocation
    and the childrens residential schedule and that the trial of those issues and
    the other outstanding issues be heard later.
[11]

With respect to the appellants second argument, we see no
    error in the trial judges determination that it is in the childrens best
    interests that their primary residence be with the respondent in Lindsay. His
    determination is amply supported by the evidence that the trial judge was
    entitled to accept and is entitled to considerable deference on appeal:
Bourke v. Davis
, 2021 ONCA 97, 154 O.R. (3d) 431, at para. 42. The trial
    judge carefully considered the relevant factors concerning the question of the relocation
    of the childrens primary residence as outlined in
Gordon v. Goertz
, [1996]
    2 S.C.R. 27. His primary focus was, properly, the best interests of the
    children. Among other factors, he considered that the children advised the OCL
    that they wish to relocate to Lindsay with their father but still spend time
    with the appellant; the respondent will be home almost every day to attend to
    the childrens needs as they arise; and at only 90 minutes distance from
    Toronto and with the parenting time schedule proposed by the OCL, the children
    can maintain their relationships with the appellant, her family and the
    childrens friends. He concluded that any potential disruption caused by a
    relocation to Lindsay to live with their primary caregiver did not justify
    refusing to permit that move, given the benefits to the children. We see no
    basis to intervene.
[12]

We do not agree that the trial judge misapprehended the
    childrens evidence concerning their preferences. Nor did he err in considering
    the respondents enhanced ability to better meet the needs of the children by
    having more disposable income and time, a larger house in which each child has
    her own room and shares a bathroom, and an elementary school within five
    minutes walking distance of the house. The improved ability to satisfy the
    childrens needs, including financial viability, is a valid and compelling
    parenting-based reason for the move of a primary caregiver:
Porter v. Bryan
, 2017 ONCA 677, 6 R.F.L. (8th) 41, at para. 17;
Bourke
, at
    paras. 27, 51-52. This is consistent with the recent amendments to the
Divorce Act
,
    R.S.C., 1985, c. 3 (2nd Supp.) and the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12.
[13]

Most important, the children are thriving with their father
    in Lindsay. The OCL supported the move to Lindsay, opposed the appellants
    unsuccessful motion to stay the order under appeal, and opposes this appeal. As
    fresh evidence, the OCL has tendered updated affidavit evidence concerning the
    children from Michelle Nagy, the clinician who has been involved in this case
    since April 2019. We admit the fresh evidence because it is important that we
    have the most current information bearing directly on the best interests of the
    children, it is provided by the OCL, and is reasonably capable of belief:
Decaen v. Decaen
, 2013 ONCA 218, 303 O.A.C. 261, at para. 13. By all
    accounts, the children are settled, happy, and doing well in their new home,
    school, and community, and are generally content with and do not want a change
    to their living arrangements.
[14]

We do not allow the appellants fresh evidence motion. The
    appellant concedes that the substance of the tendered fresh evidence from the
    second trial was available at the time of the relocation trial. More important,
    we do not see how it would have made any difference to the relocation order. Specifically,
    the proposed fresh evidence does not invalidate or undermine the trial judges
    credibility assessments and other findings from the relocation trial nor give
    rise to inconsistent findings. Any issues with the trial judges April 23, 2021
    reasons are properly the subject of the appellants pending appeal.
[15]

Finally, we see no error in the trial judges refusal to
    adjourn the trial or any failure to accommodate the appellants meaningful
    participation in the trial. There is ample evidence supporting the trial
    judges dismissal of the appellants request for an adjournment of the
    bifurcated trial that had already been adjourned and made peremptory on the
    appellant. He outlined in detail the appellants history of seeking
    adjournments and found that there was very little, if any, reliable or
    credible medical information to support the [appellants] repeated, vague
    contentions of medical illness and lack of accommodation. The record reveals
    that the appellant was given accommodations and participated meaningfully in
    the trial of the issues of the childrens primary residence and parenting time.
    There is no indication of any prejudice or unfairness to the appellant
    warranting appellate intervention.
[16]

For these reasons, the appeal is dismissed.
[17]

Neither the respondent nor the OCL sought any costs of the
    appeal. Accordingly, we order that there be no costs of the appeal.
David
    Brown J.A.
L.B.
    Roberts J.A.
B. Zarnett
    J.A.