DATE: June 25, 2021 Information No. 4811-998-20-15006583-02

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

SHADOE G. MOORE

Reasons for Sentence

BEFORE THE HONOURABLE JUSTICE P. BAND on June 25, 2021 at TORONTO, Ontario

APPEARANCES: C. Silver Counsel for the Crown A. Stastny Counsel for Shadoe Moore

FRIDAY, JUNE 25, 2021

BAND, J. (Orally)

These are my reasons for sentence in the matter of R. v. Mr. Shadoe Moore.

Because I am releasing this decision orally, I will provide my notes to the court reporter today to assist with spelling and formatting. All statutory sections that I mention are from the Criminal Code. I may from time to time forgo reading paragraph references or internal citations, but they are in the notes that I will provide to the court reporter so that they can figure in any transcript that might be ordered.

At this time, I will also indicate that I will be making mention of the following authorities:

R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433; R. v. Grant, [2005] O.J. No. 4599 (SCJ); R. v. Krug, [1985] 2 SCR 255; R. v. Morgan, 2013 ABCA 78 -I refer to that case as Morgan 2013 - R. v. Morgan, 2020 ONCA 279 - I refer to that case as Morgan 2020 - R. v. R.K., [2005] O.J. No. 2434 (C.A.); R. v. S.C., 2019 ONCA 199; R. v. Saint Amand, [1982] O.J. No. 73; Kienapple v. The Queen, [1975] 1 S.C.R. 729;

McGuigan v. The Queen, [1982] 1 S.C.R. 284; R. v. Langevin (1979), 47 C.C.C. (3d) 138; R. v. Manly, [2011] OJ No 462 (C.A.); R. v. Meszaros, 2013 ONCA 682, [2013] OJ No 5113 (CA); R. v. O.K., 2020 ONCJ 189; R. v. Marshall, 2021 ONCA 344; R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.); R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Jacko, 2010 ONCA 452, [2010] 4 CNLR 211 (Ont. C.A.); R. v. F.H.L., 2018 ONCA 83; R. v. Friesen, 2020 SCC 9; R. v. R.S., 2021 ONSC 2263.

Turning now to my reasons, I believe it is important to make mention of two factors by way of introduction.

First, Mr. Moore is an Indigenous person and a member of the Moose Cree First Nation. He has been in pre-sentence detention in this matter since his arrest on November 13, 2020. In that time, Canadians have learned about the horrifying discoveries of the bodies of 215 children lying in unmarked graves in the area around the Kamloops Indian Residential School, located in the Tk’emlúps te Secwépemc First Nation. This week, an even more horrific discovery was reported from the former Marieval Indian Residential School in Saskatchewan, located in what is now the Cowessess First Nation.

This period has been particularly traumatic for Indigenous peoples in this country.

Second, Mr. Moore committed a violent robbery in which he pointed an imitation firearm and assaulted a store owner who had caught him trying to steal a jacket from his store. Mr. Moore was able to escape the store but was caught by police nearby. The shopkeeper and another employee were left injured and traumatized. Both are older gentlemen.

I began with these factors for three main reasons. First, I believe it is the obligation of this and other courts to acknowledge the discoveries in British Columbia and Saskatchewan as a step towards reconciliation. Second, those discoveries are vivid reminders of why it is important to pay careful attention to the teachings found in Gladue in each and every case involving an Indigenous offender. Third, these two factors serve to illustrate the tension that can exist when sentencing an aboriginal offender for a serious offence involving violence. That is my task.

I begin with a brief summary of the facts.

Summary of Facts

Mr. Moore and a co-accused woman entered into Doc’s Leather Store, a multi-level shop on Queen St. West in Toronto. It is owned by Mr. Von Lichtenberg, who was on the premises along with an employee, Mr. Davidson.

Mr. Moore went upstairs, where he took and concealed a leather jacket on his person. His co-accused also selected an item. As they attempted to leave the store, Mr. Von Lichtenberg blocked them and demanded the return of the items. A struggle ensued, during which Mr. Moore pulled an imitation revolver from his jacket and pointed it at Mr. Von Lichtenberg. The imitation revolver was in play only briefly, as the handle quickly broke during the struggle. Mr. Moore then assaulted Mr. Von Lichtenberg with his fists and was able to leave through a second-floor window. The entire incident was captured on video.

Mr. Von Lichtenberg suffered a laceration near his left eye and a cut to his cheek, caused by a blow that led one of his teeth to pierce through the skin. He was also left with significant and long-lasting pain in the upper left side of his chest or rib area.

Mr. Davidson sustained a cut and swelling around his left eye and broken eyeglasses.

On June 8, 2021, Mr. Moore pleaded guilty to robbery while armed with an imitation handgun, contrary to ss. 343(b) and using an imitation handgun during the commission of an indictable offence, namely the robbery, contrary to s. 85(2)(a).

Position of the Parties

The Crown seeks a global sentence of four years. She would apportion three years to the robbery and one year to the s. 85 offence, to be served consecutively, less time served. While she acknowledges Mr. Moore’s Aboriginal heritage, she rests her submissions on a number of factors. Mr. Moore has a serious criminal record that includes a three-year sentence for a robbery that he committed in 2015. While she acknowledges that that offence was more serious than the one before this court, she takes the position that the “step principle” requires that the sentence I impose, in its totality, be longer for it to meet the required objectives.

She argues that the main objectives of sentencing in this case are general deterrence, specific deterrence, and denunciation.

Based on Mr. Moore’s lengthy and serious record, rehabilitation is not an appropriate focus in this case.

She relies on two appellate authorities that illustrate similar sentences, or sentencing ranges, for very similar offences: Morgan 2013 and R.K. Neither of them involves Aboriginal offenders; however, referring to para. 79 of the Gladue decision, the Crown argues that, as a general rule, the more serious and violent an offence, the more likely it is that similar sentences will be imposed on similarly circumstanced aboriginal and non-aboriginal offenders. I will return to this point below.

On behalf of Mr. Moore, Mr. Stastny seeks a global sentence of two to two-and-a-half years, less time served. He acknowledges that rehabilitation is not a significant factor in this case even though Mr. Moore is 31 years old. Rather, his position rests on the various mitigating factors, including the circumstances of Mr. Moore’s pre-sentence detention at the Toronto South Detention Centre (TSDC), and the fact that this offence is less serious than the previous one. All of which must be considered in light of the principle of restraint that is enshrined in ss. 718.2(d) and (e) and described in Gladue and Ipeelee.

Ultimately, counsel agree that my core obligation is to craft a sentence that is proportional to the gravity of the offences and Mr. Moore’s moral blameworthiness: see s. 718.1 and Lacasse. To do so, I must also be mindful of the principle of totality: see s. 718.2(c) and S.C.

To support their positions, the parties filed a number of exhibits: Mr. Moore’s criminal record, the security video from Doc’s Leather Store, a photo of Mr. Von Lichtenberg’s face, showing his injuries, victim impact statements of Mr. Von Lichtenberg and Mr. Davidson, a Gladue report that was prepared for Mr. Moore in 2015, and a record of the lockdowns to which Mr. Moore was subject during his pre-sentence custody at the TSDC.

I now turn to some preliminary issues.

Preliminary Issues

Three issues arose in this case that I believe ought to be addressed up front. First, how to assess the gravity of the robbery knowing that the sentence for that offence will be followed by a mandatory minimum sentence of one year for the s. 85 offence. Second, the role that the “step principle” plays in this case, if any. Third, the proper approach that I should take in assessing the so-called Duncan and COVID-19 credit in this case.

1. The interplay between ss. 85 and 343

[1] Mr. Moore is charged with committing a robbery while armed with an imitation firearm. That offence can be committed in a number of ways. All the Crown needs to prove, however, is that the offender was in possession of a weapon when they stole from someone. The weapon need not be a firearm and it need not have been used. Whether it was used or not constitutes an aggravating factor going to sentence. Section 85 constitutes a separate offence that can only be proved if the offender actually used a firearm or imitation firearm. Use can include, but is not limited to, loading, brandishing, pointing and firing a firearm. A sentence for a s. 85 offence must be served consecutively to a sentence imposed for the underlying indictable offence.

In his reply submissions, Mr. Stastny argued that it would be unfair to include Mr. Moore’s use of the imitation handgun in the assessment of the gravity of the robbery since that use is what is punished by s. 85. In other words, to treat the use of the firearm as an aggravating factor in the robbery and to then impose a one-year minimum consecutive sentence for that use would, as a matter of logic, constitute double-dipping.

Mr. Stastny made this submission in reply, with no authorities to support it. I asked the parties for their further assistance in writing, for which I am grateful. As a result, I have considered a number of additional cases including Krug, McGuigan, Meszaros, and Manly.

Section 85, and others like it, have received careful review from the Supreme Court of Canada and the Ontario Court of Appeal: see Krug, McGuigan, and Meszaros. Morgan 2013 also involved a s. 85 offence.

The cases make it clear that s. 85 creates a separate and distinct offence that punishes an aggravated form of the underlying indictable offence.

The rule in Kienapple does not apply, either, because the offences are legally distinct or because, by enacting the section, Parliament manifested its intention to preclude its application. This must be respected. In Krug, the Supreme Court of Canada also dismissed an argument that a similar section violated s. 11(h) of the Charter. In Meszaros, the imposition of consecutive sentences did not violate s. 12 of the Charter.

Mr. Stastny does not challenge those principles. His argument is that it is unfair to “inflate” the gravity of the robbery to “get it to a very high number”, as proposed by the Crown, and then to pile on with an additional consecutive sentence. One of the premises of his argument is that the fit sentence for the robbery, if one does not include the use of the firearm, would be in the order of months, not years. The serious offence is best captured by s. 85 in this case. He proposes that a higher sentence – 18 months – be imposed for the s. 85 offence.

He acknowledges that the logic of his argument may be undermined by the Alberta Court of Appeal’s judgment in Morgan 2013, depending on how the Court’s reasons are interpreted. If the three-and-a-half-year sentence that was upheld in that case was attributable only to the robbery, then Mr. Stastny’s appeal to logic fails. If, however, it was a global sentence that included the mandatory consecutive sentence for the s. 85 offence, his position gains traction. He also argued by analogy to Grant, a decision of Justice Nordheimer, as he then was.

However, as he indicated in his additional written submissions, “ regardless, as long as the overall sentence is fit, this may all be academic.”

The Crown relies on Krug and argues that Parliament’s intention – to punish aggravated forms of robbery involving the use of a firearm or imitation firearm – must be respected. To parse out the use of the firearm from the robbery would frustrate Parliament’s intention. A consecutive sentence of one year does not offend fundamental fairness.

I agree that this argument is, to a large extent, academic in this case. At issue here are only two offences, to be served consecutively. This is not a case involving a multiplicity of mandatory consecutive sentences that, if applied simply arithmetically, could amount to an excessive and unfit sentence. Also, the sentence the Crown proposes – which is consistent with appellate authorities – cannot be described as so excessive as to be unfit, much less cruel and unusual.

However, the parties’ thoughtful submissions deserve a response and the issue may arise in future cases.

I have come to the conclusion that Mr. Stastny’s arguments, while logical, cannot be sustained. First, while I agree that the Morgan 2013 decision leaves some room for interpretation, I am of the view that the three-and-a-half year sentence that was upheld in that case was imposed on the robbery alone. Here is why:

At para. 8, the Court referred to the “gross sentence” of three-and-a-half years. Read in isolation, that term can be vague. However, the Court clarified it by adding, in parentheses, “before deduction for pre-trial custody.” The Court added that the robbery sentence was “the only sentence appealed.” At para. 14, the Court made it clear that the one-year sentence for the s. 85 offence – which must be served consecutively – was not challenged. Lastly, at para. 9, there is also mention of a three-year “starting point” for certain kinds of robberies in Alberta.

I also find that Grant runs against Mr. Stastny’s argument. In that case, the issue was whether a sentence for possession of a firearm while prohibited by a s. 109 order ought to be served consecutively. Justice Nordheimer decided to impose concurrent sentences, having treated the violation of the s. 109 order as an aggravating factor regarding the possession offence: see para. 43. At the time, in 2005, the law was developing. At para. 41, Justice Nordheimer acknowledged that “making the sentences concurrent might appear to have the effect of rendering the offence of violating the prohibition order superfluous.” As it turns out, those words were prophetic. Subject to the principle of totality, it has since become the norm to impose sentences for such breaches consecutively.

More importantly, as Justice Nordheimer pointed out at para. 42, “Parliament did not choose to make the breach of a prohibition order expressly subject to a consecutive sentence as it did with other weapons related offences, for example, in section 85 of the Criminal Code.”

Setting aside arguments based on logic and analogy, I believe that Krug and Meszaros are a complete answer to Mr. Stastny’s arguments. While they do not explicitly address the specific argument about double-dipping, I believe that they do away with it, subject to the principle of totality. First, they both constitute extensive reviews of the legislation and the policies underlying it. Second, by upholding the mandatory consecutive nature of the punishment, the Courts must be taken to have accepted that it entailed additional punishment in a real sense. This is evident in their description of the offence created by s. 85 and the punishments it warrants.

In Krug, the Supreme Court described the offence as a “separate and distinct offence” constituting “an aggravated form of robbery” for which an “additional penalty” was mandatory: see paras. 18, 28 and 34. Parliament’s intention was to create a “further deterrence to the use of firearms in offences such as robbery... where such use is prevalent”: see para. 38. At para. 23, the Court acknowledged that the offences can overlap, adding at para. 34 that it is hard to imagine what Parliament could reasonably have intended by s. 83 if it did not expect it to apply to robbery and other offences where the use of firearms is most prevalent.

In Meszaros, the Ontario Court of Appeal wrote that the intent of Parliament was to increase punishment in the event that two or more offences overlap and that an offender “can expect to receive an additional and mandatory sentence by reason of s. 85 of the Code ”: see paras. 33 and 54.

Returning to Mr. Moore’s case, I would also decline to endorse Mr. Stastny’s alternative position, that the sentence for the s. 85 offence should take up a larger proportion of the global sentence. This is for two reasons. First, as I will discuss below, I disagree with his assessment of the gravity of the robbery, even if one were to notionally shunt the use of the firearm to the s. 85 offence. Second, I believe that such an approach could constitute doing indirectly what I am not permitted to do directly: that is, to impose concurrent sentences to the extent of the overlap: see Saint-Amand.

2. The Role of the “Step Principle”

[2] The Crown’s argument regarding the “step principle” in this case is founded on the related concepts of specific deterrence and rehabilitation. In my view, strict adherence to that principle must be avoided in a case like this. First, as the Supreme Court wrote in Gladue at para. 68:

...as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be "rehabilitated" thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions.

Second, there is a danger that to do so might distract me from my fundamental task, which is to impose a proportionate sentence in this case having regard to all the circumstances.

For these reasons, I reject the notion that Mr. Moore’s last sentence for robbery serves as an anchor in this case.

3. Duncan and COVID-19 Credit

[3] The parties agree that Mr. Moore is entitled to some credit for the harsh conditions of his pre-sentence custody flowing from lockdowns and the pandemic. They disagree as to how to treat it. Mr. Stastny proposes numeric deductions based on ratios, akin to Summers credit, as illustrated in R. v. O.K.

The Crown argues that there have been a variety of approaches in the case law, but cites Marshall, a very recent Ontario Court of Appeal decision. In that case, the Court explained the difference between “ Summers credit” and “ Duncan credit” at paras. 51-53. “ Summers credit” is not a mitigating factor, it is a deduction from an otherwise appropriate sentence in recognition that some of it has effectively been served. In contrast, particularly harsh conditions of pre-sentence custody “can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence.” While it is not necessarily inappropriate to quantify Duncan credit, I read Marshall as a caution against doing so.

I will now turn to the gravity of the offence.

Gravity of the Offence

Mr. Moore did not enter the store intending to commit a robbery at gunpoint. His decision to use the imitation firearm was impulsive. In that sense, as the parties agree, it is a less serious robbery than the one he previously committed. In that case, he and his co-accused robbed a Subway at knife-point. The offence had been planned.

However, Mr. Moore was carrying an imitation handgun and immediately resorted to it when Mr. Von Lichtenberg blocked his exit. He then violently assaulted both men in order to get away. Not only were they physically injured, but their victim impact statements speak of profound effects including lasting trauma, insecurity, diminished enjoyment of life, and economic losses.

While they are not in the same class as convenience store clerks, I accept the Crown’s argument that their age and the layout of the store made them vulnerable.

This was a serious offence made more serious by the fear that the imitation firearm caused, albeit momentarily.

I will now turn to the Gladue factors and Mr. Moore’s moral blameworthiness.

Gladue Factors and Moral Blameworthiness

In enacting the reforms discussed in Gladue, Parliament was concerned about the overrepresentation of Indigenous persons in jails and prisons and systemic discrimination against them. At para. 65, the Court acknowledged that Aboriginal offenders are subjected to more and longer prison terms than non-Aboriginal persons.

At para. 69, the Court explained that,

The sentencing judge must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

The analysis is holistic. At para. 69, the Court wrote that

The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an Aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties Aboriginal people have faced with both the criminal justice system and society at large.

In Ipeelee, the Court further elaborated on the required analysis at para. 60:

Courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

Understanding such factors gives judges the necessary context in which to place the case-specific information that is before them. Also, systemic and background factors may bear on the moral responsibility of aboriginal offenders. As the Court put it at para. 73, “The reality is that their constrained circumstances may diminish their moral culpability.”

In F.H.L., the Ontario Court of Appeal provided a useful guide. At para. 40, the Court described the correct approach to sentencing in this way:

For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that, (1) bears on moral blameworthiness; or (2) indicates which types of sentencing objectives should be prioritized in the offender's case.

In this case, given the position of the parties, the first question is most pertinent.

I have read Mr. Moore’s Gladue report carefully. It speaks of tragedy and trauma resulting from the intergenerational effects of colonialism in this country. It is heartbreaking. I do not intend to quote from it at length. A few observations will suffice.

Mr. Moore’s mother was a member of a First Nation and a residential school survivor. Later in life, she was the recipient of a significant settlement from the Federal Government. The author of the report indicated that a settlement of that magnitude was almost certainly a reflection of terrible abuses that had been inflicted upon her as a child.

Mr. Moore and his younger brother, Cody, were born in Toronto. Their mother was unable to care for them, and they were both adopted as infants by a family in Moose Factory. They were abused by their adoptive father. At age 11, Mr. Moore found out that he had been adopted, not from his adoptive parents, but from his cousins. It is around that time that he began to run away to be with his biological relatives and get into trouble. It is also around that time that his adoptive parents rejected him and placed him back in care. He discovered that they had always wanted Cody but had been required to adopt him, as well, and they kept the two from seeing each other.

According to the author of the report, such rejections can happen in the first year after an adoption. They had never heard of such a terrible thing happening nine years later. About a time when he saw his adoptive father again later, Mr. Moore is quoted as saying that he thought that his adoptive parents could like him again; however, that they said that they didn’t want him anymore.

He spent his teenage years in group homes, detention centres, or on the streets. While in one group home, he found out by pure chance that one of the other residents was his other biological brother, Tyson.

He began to use drugs at around age 13. At age 19, he found out about his mother’s settlement and came to Toronto to meet her. During their reunion, they drank and smoked crack together. The continued to bond in this fashion until the settlement funds ran out.

At the time the report was drafted, Mr. Moore’s mother was in the ICU, battling cancer. She died some time later, while he was in custody. Mr. Moore’s brother Cody died more recently, again while he was in custody. He has never met his biological father.

Mr. Moore’s unique circumstances involve displacement from his community, fragmentation of his family, long-lasting struggles with addiction and homelessness, economic disadvantage and frequent incarceration. I have no trouble concluding that they have had a significant bearing on his moral culpability.

I will now turn to the aggravating and mitigating factors.

Aggravating and Mitigating Factors

Aside from the facts of the robbery, which I have already described, the main aggravating factor in this case is Mr. Moore’s youth and criminal record. Spanning the years 2003 to 2020, it contains over 60 adult convictions, many involving violence. He has been convicted of robbery twice in the last 12 years. He was convicted of possession of a firearm or ammunition contrary to a prohibition order in 2010. There are no meaningful gaps in his record that are not accounted for by incarceration. The longest sentence he has ever served was the three-year sentence that was imposed for the robbery in 2015.

The main mitigating factors in this case are Mr. Moore’s guilty plea and the circumstances of his pre-trial detention.

Mr. Moore’s Guilty Pleas

Mr. Moore decided to plead guilty early. The pandemic caused delays. His pleas, and his words to me at the end of the proceeding are a demonstration of his remorse and acceptance of responsibility. He has saved court resources, made all the more precious by the pandemic. Even though the Crown’s case was strong, Mr. Moore deserves credit for his pleas.

Mr. Moore’s Pre-Sentence Custody

“Summers Credit”

Mr. Moore has been in custody for 225 days. The parties agree that he is entitled to “ Summers credit” at the rate of 1.5:1. This amounts to 338 days.

Duncan and COVID-19 Credit

As of June 6, Mr. Moore was subjected to partial or full lockdowns on 107 of his days in custody. That amounts to more than 50 percent of his time in custody. Based on the records, 69 of those lockdowns started in the morning with no end time listed. 33 percent of his pre-sentence custody was spent in full lockdown. A total of 51 of those full lockdown days continued over one or more consecutive days. On eight occasions, they spanned three consecutive days. On one occasion, they spanned five.

Mr. Moore’s affidavit describes the impact that the lockdowns have had on him, including loss of access to fresh air, showers, and the telephone. Wait times for services are longer. Programming is reduced. Importantly, Mr. Moore has not had access to any cultural services.

COVID-19 has made things even more difficult, as staff and inmates worry about the spread of the disease. When prisoners leave their unit, they are not given a mask; however, all the guards are equipped with PPE.

Lockdowns and COVID-19 have caused the atmosphere to be more stressful and Mr. Moore has felt more depressed and anxious than usual.

Based on the authorities, I find that the circumstances of Mr. Moore’s pre-sentence incarceration have been particularly harsh and that they amount to a significant mitigating factor.

I will now turn to the impact of COVID-19 on the remaining sentence to be served.

The parties did not spend significant time on this issue and no evidence was presented aside from the fact that Mr. Moore has received his first dose of the COVID-19 vaccine and is likely to receive the second dose soon. I am aware of the conditions in the provincial detention centres, especially the TSDC, however, I have no such familiarity with the conditions in the penitentiaries. I know that the vaccination campaign is proceeding in earnest and I am able to take judicial notice that social distancing is more difficult in any congregate living situation. On this record, and in light of Morgan 2020, I would be speculating if I were to find that COVID-19 will have an appreciable impact on the conditions of Mr. Moore’s sentence going forward.

I will now address the cases on which the Crown relies for her position as to the fit sentence.

Morgan 2013 and R.K. both involve facts that are similar to those before me.

In Morgan, the accused pointed an imitation pistol at a security guard in a parking lot after she attempted to stop him for shoplifting. He had “an atrocious record”, showed no remorse and was “quite content with his addiction and lifestyle.” The matter “crie[d] out for individual deterrence.” After trial, the judge imposed a three-and-a-half-year sentence for the robbery and one consecutive year for the use firearm offence. In doing so, he drew an analogy to convenience store robberies which, in Alberta, are the subject of a three-year “starting point.” The Court of Appeal upheld the sentence.

In R.K., the accused pointed a sawed-off shotgun at store security who detained him for shoplifting. Unbeknownst to the accused, the shotgun was inoperable. He pleaded guilty and a global sentence of one year and nine months was imposed. He was 18 years old with an extensive youth court record. He had a difficult childhood and the circumstances of his pre-trial detention were “terrible.” The Court of appeal upheld the global sentence. In doing so, the Court explained that R.K.’s youth and potential for long-term rehabilitation were central to the sentencing judge’s decision. Absent those factors, a sentence of three to three-and-a-half years would have been appropriate.

Morgan 2013 is of limited assistance to me in this case for a number of reasons. It did not involve a guilty plea. While Mr. Moore has a significant criminal record and slim prospects for rehabilitation, it is clear from the Gladue report that he is not content with his addiction and lifestyle. It is also clear that he is remorseful. Even though R.K. involved a youthful non-Indigenous offender who had good potential for long-term rehabilitation, it provides guidance insofar as the Court of Appeal indicated at para. 74 that “the appropriate range of sentence was quite wide.”

Lastly, I would point out that neither of those cases involved an Indigenous person. In Ipeelee, the Supreme Court told the lower courts that they had been giving unwarranted emphasis to para. 79 of the Gladue decision, which I referred to earlier. Paras. 84-86 of Ipeelee instruct us that we have a duty to apply Gladue principles in serious cases involving violence. The Court made the same point in 2019 at para. 92 of Friesen; see also R. v. R.S.

Conclusion

Having assessed the gravity of the offences Mr. Moore committed and his moral blameworthiness in the context of all the relevant factors that I have discussed above, it is my opinion that the proportional sentence in this case is as follows:

On the count of robbery while armed with an imitation handgun: two years;

On the count of use imitation firearm in the commission of the indictable offence of robbery: one year, to be served consecutively.

This represents a global sentence of 3 years. In my opinion, it is a fit sentence in its totality.

It will be reduced by the time Mr. Moore has already served, which is equal to 338 days.

The net sentence remaining to be served will be two years and one month.

Mr. Moore will also be prohibited from possessing the weapons listed in s. 109 for life. He will also be required to provide samples of his DNA for purposes of the DNA database.

And, Mr. Moore, we’re bound to be interrupted again and there’s going to be some paperwork for me to get busy with but I do wish you luck and healing going forward.

FORM 2 Certificate of Transcript Evidence Act, subsection 5(2)

I, Helena Tsapoitis-Barbesin, certify that this document is a true and accurate transcript of the recording of R. v. Shadoe Moore in the Ontario Court of Justice, held at 60 Queen Street West, Toronto, Ontario, taken from Recording No. 4811_K_20210625_123657__6_BANDP.dcr, dated June 25, 2021 which has been certified in Form 1 by Ava Maltezos.

Date (Authorized Transcriptionist)

Helena Tsapoitis-Barbesin ACT ID# 2372561617 416-889-6054 Helena10@hotmail.com Transcriptsontario.ca