Court of Appeal for Ontario

CITATION: R. v. Moore, 2025 ONCA 47

DATE: 20250123

DOCKET: COA-23-CR-1156

Rouleau, Paciocco and Coroza JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Trevor Moore

Appellant

Trevor Moore, acting in person

Maija Martin, appearing as duty counsel

Ildikó Erdei, for the respondent

Heard: January 8, 2025

On appeal from the conviction entered by Justice John David Bonn of the Ontario Court of Justice, dated October 27, 2023 and the sentence imposed on October 27, 2023.

REASONS FOR DECISION

[1] The appellant pleaded guilty to several offences including possession of fentanyl for the purpose of trafficking. The sentencing judge imposed a global sentence of five years less five months for pre-sentence custody leaving a net sentence of four years and seven months to be served.

[2] In his notice of appeal, the appellant sought to set aside his guilty plea. At the hearing of this appeal, he abandoned the conviction appeal and appeals only his sentence.

[3] The facts of the drug offence were straightforward. The appellant was observed residing in Trenton, contrary to his release order which required him to reside with a surety in Toronto. The police arrested him when executing a warrant at a residence. The appellant and five individuals were found inside the residence and four of them appeared dozy, pale, and had laboured breathing. The appellant was searched incident to arrest and $900 in cash was found on his person. He was held for bail, and while in a holding cell, police noted the appellant appeared to be under the influence of something and discovered he had concealed in his body just over an ounce of fentanyl.

[4] The appellant was self-represented before the sentencing judge. From our review of the proceedings, it is quite evident that the sentencing judge gave the appellant considerable assistance as a self-represented party. The sentencing judge conducted a comprehensive plea inquiry. He also gave the appellant several opportunities to adjourn the proceedings to obtain information or reports for sentencing. When the appellant made it abundantly clear he did not want to adjourn the proceedings, the sentencing judge carefully elicited information from the appellant during submissions that was helpful to him. For example, the sentencing judge elicited information about the appellant’s drug use, the conditions of his pre-sentence custody and his Indigeneity.

[5] With the assistance of duty counsel, the appellant raises two issues.

[6] First, he argues that the sentencing judge erred by not considering his drug addiction as a mitigating factor. In support of this ground of appeal, the appellant has applied to tender an affidavit that attaches medical records from his time in the hospital following surgery on his neck. The records state that the appellant has an opiate addiction. Duty counsel argues that the sentencing judge did not give any meaningful consideration to the fact that the appellant’s drug addiction diminished his moral blameworthiness.

[7] We do not accept this argument. As noted above, in his efforts to elicit information from the appellant, the sentencing judge specifically asked the appellant about his addiction, but the evidence proffered by the appellant was that he was not motivated to traffic drugs because of his addiction but rather to make money for his family. The appellant also said that he had tapered himself off drugs prior to his arrest. We see no basis for the assertion that the sentencing judge erred in assessing the appellant’s moral blameworthiness given that he was told by the appellant that his drug use did not play a role in the offence.

[8] Second, duty counsel argues that the sentencing judge did not consider the harshness of the pre-sentence conditions that were experienced by the appellant. The appellant now seeks to introduce records from the institution that show that he was in lockdown for 32 days of his 97 days in pre-sentence custody (15 full lockdown days and 17 partial days) and “triple bunked” for about half of his time in custody. Although duty counsel acknowledges that the sentencing judge did refer to the conditions of pre-sentence custody as mitigating in his reasons, she argues the ultimate sentence imposed does not properly account for the harshness of the conditions given that the sentencing judge imposed the sentence requested by the Crown.

[9] We disagree. While the sentencing judge did not have the records from the institution, he nevertheless considered the harshness of the conditions of pre-sentence custody. His reasons, fairly read, reveal that the sentencing judge carefully considered the difficult conditions in the institution as a mitigating factor but that the appellant had committed a serious offence involving a dangerous drug that warranted a significant sentence. While the harshness of pretrial incarceration conditions is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors: R. v. Marshall, 2021 ONCA 344, at para. 52. The sentencing judge noted that from his review of the cases the Crown could very well have asked for a sentence in the eight-year range. Ultimately, the sentencing judge, having regard to all of the relevant mitigating and aggravating factors deemed five years as the appropriate sentence. The fact that the sentencing judge agreed with the Crown’s proposed sentence did not require him to reduce the sentence any further based on the conditions of pre-sentence custody. We see no error.

[10] In sum, while we have reviewed the appellant’s affidavit to tender fresh evidence, we dismiss the application on the basis that the evidence could have no material impact on the fitness of the sentence. There is also no basis to interfere with the sentence imposed by the sentencing judge.

[11] For these reasons, the conviction appeal is dismissed as abandoned. Leave to appeal the sentence is granted but the appeal is dismissed.

“Paul Rouleau J.A.”

“David M. Paciocco J.A.”

“S. Coroza J.A.”