ONTARIO COURT OF JUSTICE
DATE: April 7, 2025
B E T W E E N :
HIS MAJESTY THE KING
— AND —
MARTIN MOORE
Before Justice Angela L. McLeod
GUILTY PLEA AND SENTENCING HEARING MARCH 7, 2025
JULIE JANIUK ..................................................................................... counsel for the Crown
JEFFREY FISHER ......................................................................... counsel for the Applicant
McLeod J.:
OVERVIEW
[1] Mr. Martin entered guilty pleas to the following counts:
(1) July 14, 2024 – Attempted disarming of a peace officer;
(2) July 14, 2024 – Break and enter into a dwelling house;
(3) December 28, 2024 – Fraud under $5000;
(4) January 6, 2025 – assault peace officer.
[2] The matter was not judicially pretried. The sentencing submissions were brief and a joint position was proffered. No case law was submitted in support of the joint position. The primary submission was that the court should accept the joint position, without question.
FACTS
[3] On April 14, 2024, Mr. Martin entered into a s. 810 recognizance as a resolution to an assault with a weapon charge. The statutory terms including a requirement that he keep the peace and be of good behaviour were in place for 12 months.
[4] On July 14, 2024, a good citizen called his neighbour who was at work in Toronto to advise him that someone had broken into his home next door. The homeowner rushed from Toronto to Barrie and found Mr. Martin sitting on his back porch eating breakfast. Mr. Moore had broken into the residence. The lock of the garage had been broken.
[5] The homeowner called police. Police arrived and spoke with Mr. Moore who falsely identified himself as Joseph Smith. After some time, he admitted that he was in fact Martin Moore. Police learned that Martin Moore was wanted on a warrant for an allegation of an assault with a weapon and was on the s.810 recognizance for an offence of assault with a weapon.
[6] The police advised Mr. Moore that he was under arrest. A struggle ensued and Mr. Moore attempted to disarm the officer. The officer was fearful that he would grab his taser and it would be used against him. Mr. Moore was eventually taken to the ground.
[7] Mr. Moore was released on a judicial interim release order.
[8] On December 29th, 2024, a community citizen was notified by his bank of suspected fraudulent transactions from the night before. His bank cards were then locked. Various cards were used at a convenience store and used at least twice to purchase gift cards.
[9] Mr. Moore was arrested and released on an undertaking.
[10] On January 6, 2025, concerned citizens called to report that a man was standing in the middle of an intersection and impeding traffic. Police arrived on scene and the man told police that his name was Jack. Police identified the man as Mr. Moore and noted that he was wanted on a warrant for aggravated assault. Police attempted to arrest him, but he attempted to run. He then punched the officer in the side of the head with a closed fist. A physical struggle ensued, in the middle of the intersection. Two citizens became involved to assist the officer until back up arrived.
AGGRAVATING AND MITIGATING FACTORS FOR CONSIDERATION
[11] The following facts are mitigating on sentence:
(1) Mr. Moore does not have a criminal record;
(2) The pleas of guilt and acceptance of responsibility;
(3) Over the past 5 years Mr. Moore has been struggling with depression and his life “took a downward spiral during Covid”, he turned to drugs and has been using a variety of street drugs ever since. It should be noted that he does not have an official mental health diagnosis.
[12] The following facts are aggravating on sentence:
(1) Mr. Moore was subject to a s. 810 recognizance at the time of each of the offences;
(2) The s.810 recognizance was a resolution in respect of an assault with a weapon charge;
(3) Mr. Moore falsely identified himself on both July 14th and January 6th;
(4) Mr. Moore was wanted on a warrant for an allegation of assault with a weapon as of July 14th;
(5) Mr. Moore’s efforts to disarm the officer cause the officer to fear for his safety;
(6) Mr. Moore’s efforts to disarm the officer necessitated the officer taking him to the ground;
(7) Mr. Moore’s efforts to disarm the officer put himself, the officer, the homeowner and the neighbourhood at risk for harm;
(8) On December 28, 2024, Mr. Moore was on a judicial interim release order;
(9) On December 28, 2024, Mr. Moore’s actions were sophisticated, using the stolen credit and debit cards to purchase gift cards for later use or sale;
(10) On January 6, 2025, Mr. Moore was on a judicial interim release order and an undertaking;
(11) On January 6, 2025, Mr. Moore falsely identified himself to police;
(12) On January 6, 2025, Mr. Moore was wanted on a warrant for an allegation of aggravated assault;
(13) On January 6, 2025, Mr. Moore attempted to run from police;
(14) On January 6, 2025, Mr. Moore’s assault of the officer involved a punch to the head with a closed fist;
(15) On January 6, 2025, Mr. Moore’s assault of the officer took place in the middle of a traffic intersection, causing significant risk of harm to both the officer and the public;
(16) On January 6, 2025, Mr. Moore’s assault of the officer required two concerned citizens to have to come to the officer’s assistance, also putting those two citizens at great risk of harm;
POSITION OF THE PARTIES
[13] At the conclusion of the Crown’s submissions which sought a global sentence of 120 days, and this court’s expressed concerns about the fitness of that quantum, the defence sought instructions from Mr. Moore and then returned to advise that the position was now a joint position.
[14] The ultimate joint submission proffered is for a total global custodial sentence of 120 days less any presentence custody, and suggested as follows:
(1) Attempted disarming of a peace officer – 60 days custody less presentence custody, 12 months probation, s. 109 for 10 years, and a DNA order;
(2) Break and enter into a dwelling house – 30 days custody consecutive, less presentence custody, a concurrent 12 months probation, concurrent s. 109 order for 10 years, and a DNA order;
(3) Fraud under $5000 – suspended sentence and a concurrent 12 months probation order;
(4) Assault peace officer – 30 days custody consecutive, less presentence custody, a concurrent 12 months probation, s. 110 order for 5 years, and a DNA order.
THE OFFENCE OF DISARMING OR ATTEMPTING TO DISARM A PEACE OFFICER
[15] Mr. Fisher submits that the facts before the court establish an attempt to disarm, not an actual disarm and thus should be considered less serious. Mr. Fisher also submits that because the defendant attempted to take the officer’s taser, and not his firearm, the offence should be considered less serious. The Criminal Code reads:
270.1
270.1(1) Disarming a peace officer
Every one commits an offence who, without the consent of a peace officer, takes or attempts to take a weapon that is in the possession of the peace officer when the peace officer is engaged in the execution of his or her duty.
270.1(2) Definition of "weapon"
For the purpose of subsection (1), "weapon" means any thing that is designed to be used to cause injury or death to, or to temporarily incapacitate, a person.
270.1(3) Punishment
Every one who commits an offence under subsection (1) is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
[16] It is clear that Parliament did not intend for an attempt to disarm to be considered less serious. Section 270.1(1) includes takes or attempts to take as one in the same. I find that Parliament’s intention was to criminalize the action, not the outcome of the action. That is to say, because an offender was not successful in his action, does not mean that the offender has committed a less serious offence. It is not mitigating that Mr. Moore was not successful in disarming the officer; the officer would not have known in the moment what the outcome would be, and the impact upon him and those observing the attempted disarming would be significant.
[17] Section 270.1(2) defines a weapon as anything that is intended to cause death, to injury or to incapacitate a person. Parliament has not sought to distinguish the various weapons that a peace officer might possess, i.e., a firearm, a taser, a baton, pepper spray, etc., thus not creating a hierarchy of seriousness based upon the specificity of the weapon.
[18] Again, the intention is to criminalize the action of an accused person who attempts to take a weapon of a peace officer who is engaged in the execution of his duty. The underlying goal of said accused is to stop the officer from executing his duty, i.e. effecting an arrest, and in addition, the risk posed is to potentially cause harm to someone with the weapon, i.e. themselves, the officer or another citizen. The external circumstances are complete even if the defendant does not gain actual possession of the weapon.
[19] Mr. Moore’s efforts to disarm the officer were only unsuccessful because the officer was able to thwart those efforts, putting his own safety at risk in doing so. Mr. Moore’s failure is not a mitigating factor.
[20] Mr. Moore’s efforts to take the officer’s taser and not his firearm, is not a mitigating factor. The goal was to debilitate the officer’s execution of his duties.
SENTENCING CASELAW FOR DISARMING AN OFFICER
[21] The maximum penalty is 5 years where the Crown proceeds by Indictment, as herein. There are few reported cases to reference. The reported sentences range from 90 days to 365 days custody:
(1) R. v. Solomon, 2023 ONSC 2602 – 90 days custody, guilty plea
(2) R. v. Penashue, 2017 NJ No 301 – 365 days reduced to 300 days for totality
(3) R. v. Smith, 2011 ONCJ 377 – 90 days custody, guilty plea, first time offender
(4) R. v. Chiasson, 2008 ONCA 90 – 6 months custody, Indigenous offender
JOINT SUBMISSIONS
[22] The Supreme Court in R. v. Anthony-Cook, 2016 SCC 43, held that:
25 It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty. Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them (Criminal Code, R.S.C. 1985, c. C-46, s. 606(1.1)(b)(iii)). In such cases, trial judges need a test against which to measure the acceptability of the joint submission. The question is: What test?
31 Having considered the various options, I believe that the public interest test, as amplified in these reasons, is the proper test. It is more stringent than the other tests proposed and it best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them. Moreover, it is distinct from the "fitness" tests used by trial judges and appellate courts in conventional sentencing hearings and, in that sense, helps to keep trial judges focused on the unique considerations that apply when assessing the acceptability of a joint submission. To the extent Verdi-Douglas holds otherwise, I am respectfully of the view that it is wrongly decided and should not be followed.
A. The Proper Test
32 Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.
33 In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system". And, as stated by the same court in R. v. O. (B.J.), 2010 NLCA 19 (N.L. C.A.), at para. 56, when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts".
34 In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason, as I shall explain.
42 Hence, the importance of trial judges exhibiting restraint, rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution agreements into too great a degree of uncertainty. The public interest test ensures that these resolution agreements are afforded a high degree of certainty.
43 At the same time, this test also recognizes that certainty of outcome is not "the ultimate goal of the sentencing process. Certainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result" (R. v. DeSousa, 2012 ONCA 254, 109 O.R. (3d) 792 (Ont. C.A.), per Doherty J.A., at para. 22).
CONCLUSION
[23] I am mindful that Mr. Moore is 34 years of age and a first-time offender.
[24] The matter was not judicially pretried and I can rely only upon the scarce submissions of counsel, which predominately relied upon the fact that the position was ultimately a joint submission. Nothing was filed in support of this position.
[25] The caselaw that this court has been able to review suggests a sentencing range beginning in excess of that which is submitted to this court.
[26] With respect, I find that the joint submission is so “unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”.
[27] I reject the joint submission proposed.
[28] There are many, many, many aggravating factors for consideration. I have nothing more than the bare submission of defence counsel to substantiate the undiagnosed mental health struggles of Mr. Moore, and as such a longer term of probation is required to assist in his assessment and rehabilitation. There is no current plan of release or rehabilitation and Mr. Moore presents as a risk to the community with his string of violent offences over the last year.
[29] I sentence Mr. Moore as follows:
(1) July 14, 2024 – Attempted disarming of a peace officer – 180 days custody, less 91 days presentence custody enhanced to 138 days credit, leaving a remnant sentence of 42 days custody, 18 months probation, s.109 order for 10 years, and a DNA order;
(2) July 14, 2024 – Break and enter into a dwelling house – 150 days custody, to be served concurrently to the disarm peace officer offence, 18 months concurrent probation order, s. 109 order for 10 years, and a DNA order;
(3) December 28, 2024 – Fraud under $5000; suspended sentence and 18 months concurrent probation;
(4) January 6, 2025 – assault peace officer – 120 days custody, consecutive to the disarm peace officer offence, 18 months concurrent probation order, s.110 order for 5 years.
[30] The total global sentence is 300 days less 138 enhanced presentence credit, for a remnant sentence of 162 days custody and ancillary orders.
Released: April 7, 2025.
Signed: Justice Angela L. McLeod