R. v. Moreira, 2021 ONCA 507

Court of Appeal for Ontario

Date: 2021-07-14 Docket: C67785

Before: Miller, Paciocco and Nordheimer JJ.A.

Between: Her Majesty the Queen, Respondent And: Matthew Moreira, Appellant

Counsel: 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

1Zaher (Zack) Noureddine died after being brutally beaten on December 29, 2015. A jury convicted Matthew Moreira of manslaughter in Mr. Noureddine’s death, and of robbing Mr. Noureddine’s companion, Mitchell Conery, during the same incident.

2The 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.

3Mr. 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. Moreira’s manslaughter conviction and in assessing his degree of fault.

4For 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 court’s decision in R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255.

5Based 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

6Around 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.

7Prior 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.

8During 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. Conery’s 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.

9Mr. 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. Noureddine’s head to someone trying to kick a soccer ball across a field.

10Several 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. Conery’s 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.

11By contrast, only one witness, Michael Bruton, testified to having seen three men attacking Mr. Noureddine.

(b) The Jury Charge and the Verdicts

12While 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.

13The 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.

14The 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”.

15The 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. Conery’s 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.

16The 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 Crown’s theory of support or aid was that Mr. Moreira’s comment to Mr. Conery, “give me your wallet and it’s all over,” was an admission that “the death of Mr. Noureddine and the robbery of Mr. Conery are clearly connected”. In the trial Crown’s submission, this admission effectively made Mr. Moreira a party to the killing of Mr. Noureddine by robbing Mr. Conery.

17The 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

The factual basis for Mr. Moreira’s manslaughter verdict

18In light of the mandatory minimum sentence for second-degree murder, Mr. Smith’s sentencing was straightforward. He was given the minimum sentence of life imprisonment, and the sentencing judge set his parole ineligibility at 12 years.

19Mr. Moreira’s 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. Moreira’s conviction.

20During sentencing submissions, the factual basis for Mr. Moreira’s 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. Noureddine’s death, but that he had played a different role than his associates, Mr. Cummins and Mr. Smith, who had beat Mr. Noureddine. The Crown’s 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.

21Mr. Moreira’s 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.

22The sentencing judge rejected both parties’ submissions regarding the basis for the verdict. He disagreed expressly with defence counsel’s submission, and in doing so offered his own conclusions about the factual basis for Mr. Moreira’s manslaughter conviction. After describing the defence submission, the sentencing judge said as follows:

I disagree and find that the evidence at trial supports Mr. Moreira’s 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. Noureddine’s 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.

23These same findings also disclose the sentencing judge’s 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).

24The 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 judge’s comments, he therefore concluded that the factual basis for the jury’s manslaughter conviction was either that Mr. Moreira had participated directly in the physical assault leading to Mr. Noureddine’s 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

25The 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. Noureddine’s head, one of the most vulnerable parts of the body.

26The sentencing judge further noted that, given Mr. Smith’s acquittal on the robbery charge, the jury had necessarily found that he was not a party to Mr. Moreira’s demand for Mr. Conery’s 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 Crown’s alleged basis for the manslaughter conviction.

27The 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.

28The 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.

29The sentencing judge also described the powerful victim impact statements that had been presented.

30After 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. Moreira’s personal circumstances

31Before 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.

32The 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. Moreira’s 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).

33Notwithstanding 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. Moreira’s criminal record and history of continually breaching probation orders.” Mr. Moreira’s 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. Moreira’s prospects for rehabilitation are poor, given this history.

Mr. Moreira’s written statement

34Of 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.”

35The sentencing judge therefore found that remorse was not a mitigating factor in Mr. Moreira’s case.

Duncan credit and imposition of sentence

36Before apportioning Mr. Moreira’s 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.

37At 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. Moreira’s manslaughter sentence where a consecutive sentence is imposed.

38The 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.

39Accordingly, 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

40Mr. Moreira raises numerous grounds of appeal. In summary, he contends that the sentencing judge:

(a) erred in determining the factual basis for Mr. Moreira’s conviction, and in assessing Mr. Moreira’s degree of fault; (b) misapprehended the evidence of the elevator video; (c) misapprehended the evidence in assessing Mr. Moreira’s 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. Moreira’s defence counsel, and (g) imposed a sentence that was harsh and excessive.

41As 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

42In my view, the sentencing judge erred in determining the factual basis for Mr. Moreira’s conviction and in identifying his level of culpability.

43In 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 judge’s 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.

44There 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.

45In 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 jury’s 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.

46In 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 jury’s 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 jury’s 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 jury’s 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), 1994 ABCA 402, 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.]

47In 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.

48In Mr. Moreira’s case, the sentencing judge concluded that the jury’s 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

49First, the sentencing judge erred in determining Mr. Moreira’s sentence based on his conclusions about what the jury may have found.

50Section 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 jury’s 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. Moreira’s role in the attack

51Second, 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. Noureddine’s death.

52Not 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.

53The 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.

54As 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. Smith’s intoxication defence but accepted Mr. Moreira’s 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.

55Simply 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. Moreira’s manslaughter conviction was linked to a jury finding that he had participated directly in the physical assault.

56In sum, the sentencing judge’s 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

57Third, 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.

58A 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 judge’s 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.

59As I have explained, the sentencing judge’s finding about Mr. Moreira’s 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. Moreira’s 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.

60In 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. Moreira’s demand for Mr. Conery’s wallet aided in the attack on Mr. Noureddine.

61The 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. Noureddine’s 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.

62Simply 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”

63Finally, in my view the sentencing judge erred in concluding that it was unnecessary to resolve the factual basis for Mr. Moreira’s 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.

64In 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.

65As 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. Noureddine’s 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.

66There 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)

67In sum, I would find that the sentencing judge erred in determining the factual basis for Mr. Moreira’s conviction, and in assessing Mr. Moreira’s degree of fault.

(b) The Elevator Video

68The 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”.

69Mr. 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.

70I would not give effect to this ground of appeal. Others may not have interpreted Mr. Moreira’s 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. Moreira’s Remorse and Prospects for Rehabilitation

71I would also reject Mr. Moreira’s ground of appeal regarding the sentencing judge’s alleged misapprehensions of evidence relevant to potential mitigating factors.

72First, I do not accept that the sentencing judge erred regarding Mr. Moreira’s 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 judge’s treatment of Mr. Moreira’s written statement.

73Second, I would reject Mr. Moreira’s 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 judge’s reasoning. As such, even if it could be said that he misapprehended the evidence, no miscarriage of justice occurred.

74In all the circumstances, particularly given the absence of remorse, Mr. Moreira’s lengthy criminal record, and his mature age, the sentencing judge was entitled to conclude that Mr. Moreira’s prospects of rehabilitation are poor, notwithstanding his family support and his pre-sentence rehabilitative efforts.

(d) Consecutive Sentences

75Nor, 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. Moreira’s sentence by arriving at what he considered to be a fit global sentence, and then apportioning the quantity of time between the two offences.

76I see no merit in this ground of appeal.

(e) The Duncan Credit

77Next, 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 judge’s decision not to give him Duncan credit was in error.

78I agree with Mr. Moreira on this point. The evidence from Mr. Moreira’s 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. Moreira’s 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.

79Of 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 judge’s 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. Moreira’s Sentence?

80An 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 judge’s 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.

81First, the sentencing judge’s failure to resolve the factual basis for the manslaughter conviction undermined his ability to identify a proportionate sentence. Indeed, the sentencing judge’s conclusion that the factual basis for the jury’s finding would not affect Mr. Moreira’s 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.

82For 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 jury’s verdict. As such, I would find that the errors the sentencing judge made in this regard were central to the sentence he imposed.

83Second, the Duncan error also effected the outcome. As indicated, the sentencing judge’s explanation for denying Duncan credit was based, in material part, on a misapprehension of the evidence before him.

84I would therefore grant leave to appeal and set aside the manslaughter sentence of 12 years.

A Fit Sentence

85In 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 jury’s manslaughter verdict can readily be determined on the record before us.

86I have already expressed my view that it is not implicit in the jury’s 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.

87In sentencing Mr. Moreira, I would not give effect to the aggravating factors identified by the sentencing judge that do not bear on Mr. Moreira’s 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 judge’s refusal to award Duncan credit. I would defer to all his other findings, and sentence Mr. Moreira for manslaughter as follows.

88Mr. 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.

89Mr. Moreira’s 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.

90Mr. 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. Moreira’s 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. Moreira’s level of culpability for that offence is materially less.

91Accordingly, 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

92For 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.

93Since 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.