COURT FILE NO.: CR-18-70000622

DATE: 20190429

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MATTHEW MOREIRA AND PATRICK SMITH

B. Richards and M. Cole, for the Crown

J. Zita, for Mr. Moreira and C. Morris, for Mr. Smith

HEARD: 10 April 2019

s.a.Q. akhtar j.

REASONS FOR SENTENCE

FACTUAL BACKGROUND

[1] On 29 December 2015, Zaher Noureddine and Mitchell Conery were the victims of a brutal and unexpected attack. Mr. Conery was punched to the floor and stomped on. Mr. Noureddine died.

[2] Before they were attacked, Mr. Noureddine and Mr. Conery attended a work meeting at a bar located at Yonge and Eglinton, in Toronto, with their boss, Jeffrey Moores. The meeting was convened to provide Mr. Conery with encouragement and support in his work environment.

[3] As the two men headed to Mr. Conery’s car, parked on Lola Road, Patrick Smith, Matthew Moreira, and William Cummins emerged from an alleyway and moved towards them. Without warning or provocation, Mr. Cummins “sucker punched” Mr. Conery forcing him to the ground where he was stomped on.

[4] The assailants turned their attention to Mr. Noureddine, viciously kicking him around the head and neck as he tried to fight back. At one point, Mr. Noureddine was restrained in a headlock as the beating continued.

[5] Witnesses who observed the event testified to the force of the blows and their immediate fear that Mr. Noureddine would die from the attack. One witness likened the force of the kicks to someone trying to kick a soccer ball the length of a field.

[6] As Mr. Conery lay on the ground Mr. Moreira tapped him with his foot and declared that if Mr. Conery handed over his wallet, the attack on Mr. Noureddine would end. As witnesses hurried to aid the victims, the three men fled the scene. Paramedics arrived to transport Mr. Noureddine to hospital but he was pronounced dead on arrival.

[7] The forensic pathologist, Dr. Kristopher Cunningham, diagnosed the cause of death to be a fracture of the transverse process, a small bone situated to the right side of a bony structure at the back of the head. This bone contains an arterial route to the brain. As a consequence of the fracture, this artery was ruptured leaking blood and causing the brain to swell in the skull resulting in cardiac arrest and death.

[8] Mr. Cummins, Mr. Smith, and Mr. Moreira were charged with and tried for first degree murder. Their first trial which commenced on 12 September 2018 resulted in a mistrial. At the beginning of the second trial, Mr. Cummins fired his counsel and was severed from the indictment. Mr. Moreira and Mr. Smith’s second trial began on 8 November 2018 and ended with Mr. Smith being convicted of the second degree murder of Mr. Noureddine and assault on Mr. Conery. Mr. Moreira was found guilty of the manslaughter of Mr. Noureddine and robbery of Mr. Conery.

[9] They now stand to be sentenced.

The Factual Disputes

[10] One of the difficulties in this case is the dispute over the factual foundation for the jury verdict.

[11] In R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, at p. 523, the Court explained that a sentencing judge "is bound by the express and implied factual implications of the jury's verdict.” In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18, the Court made clear that where the factual implications of a jury verdict are ambiguous, a sentencing judge is entitled to come to his or her own determination of the relevant facts. If a judge chooses to rely on a fact as an aggravating factor he or she must find that fact proven beyond a reasonable doubt.

[12] There are two material issues of factual dispute in this case.

[13] The first surrounds the motivation for the attack on Mr. Noureddine and Mr. Conery. The Crown alleges that Mr. Cummins, Mr. Smith, and Mr. Moreira intended to rob Mr. Noureddine and Mr. Conery having seen them as their car drove down Lola Road. Mr. Noureddine and Mr. Conery were both well dressed and Mr. Noureddine was wearing a Rolex watch. The Crown argues that they were easy targets who, as robbery victims, could be seen as offering a quick and lucrative return.

[14] The defence, in response, point out that Mr. Smith was acquitted of the count of robbery of Mr. Conery and convicted only of the lesser included offence of assault. That verdict, argues the defence, means that the Crown cannot rely on robbery as the basis for the attack on the victims.

[15] I agree with the defence that a finding that the assault was driven by robbery is foreclosed by the jury’s finding with respect to Mr. Smith. That, however, does not assist the defence. Mr. Conery saw all three men emerge from the alleyway and move diagonally towards himself and Mr. Noureddine. Without a word being exchanged, Mr. Cummins sucker punched Mr. Conery with such force that he fell to the ground. Mr. Cummins and Mr. Smith then began their assault on Mr. Noureddine. Even without an identifiable motive, there is no doubt that the attack on the two victims was pre-planned. What is unclear is why the attack occurred.

[16] The second disputed issue concerns Mr. Moreira’s role in the proceedings. The defence submits that he cannot be treated as one of the men that attacked Mr. Noureddine as the bulk of the witnesses, including Mr. Conery, saw only two men assaulting Mr. Noureddine and the evidence points to those men being Mr. Smith and Mr. Cummins. Thus, argues the defence, at its highest, Mr. Moreira’s role can only be an aider and abettor.

[17] I disagree and find that the evidence at trial supports Mr. Moreira’s role as principal or aider in the factual matrix.

[18] 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.

[19] 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.

Positions of Counsel

[20] Ms. Richards, for the Crown, seeks a parole ineligibility period of 12 years for Mr. Smith along with a concurrent 1 year sentence for assault. With respect to Mr. Moreira, the Crown asks that a total 14 year sentence be imposed: 10-12 years for manslaughter with a consecutive 2 year sentence for robbery.

[21] Ms. Zita, on behalf of Mr. Moreira, submits that a sentence of 5 years is appropriate for Mr. Moreira with a concurrent sentence of 18 months to 2 years for the count of robbery. Mr. Morris, for Mr. Smith, argues that a 10 year parole ineligibility period be imposed for the second degree murder conviction and that a concurrent 1 year sentence be imposed for the assault on Mr. Conery.

[22] With respect to whether Mr. Moreira should be subject to a concurrent or consecutive sentence, I note that a sentencing judge has a considerable degree of flexibility in deciding whether offences should be served consecutively or concurrently. As a general rule, under s. 718.3(4)(b)(ii) of the Code, sentences should be served consecutively. However, there is nothing improper in a sentencing judge deciding the appropriate total sentence for multiple offences and then dividing that amount amongst the counts for which an offender has been convicted: R. v. Paul, 1982 179 (SCC), [1982] 1 S.C.R. 621, at pp. 633-4. Section 718.2(c) of the Code directs that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.”

[23] In R. v. Berry, 2014 BCCA 53, 2014 BCCA, at para. 53, the British Columbia Court of Appeal held that consecutive sentences are appropriate “even where the offences are committed against multiple victims in close proximity.”

[24] I find that, in the circumstances of this case, the most apt way of dealing with Mr. Moreira’s sentence is to determine the suitable global sentence and then apportion the appropriate quantity of time between the two offences.

THE SENTENCING PRINCIPLES IN RELATION TO PATRICK SMITH

Legal Principles in Sentencing for Second Degree Murder

[25] The sentencing regime applicable to Mr. Smith derives from ss. 235(1), 745(c), and 745.4 of the Criminal Code.

[26] A person convicted of second degree murder must serve a sentence of life imprisonment without eligibility for parole until that person has served a minimum of 10 years of their sentence. However, a sentencing judge may increase the period of parole ineligibility from the 10 year minimum to a maximum of 25 years.

[27] Section 745.4 of the Criminal Code, authorises a sentencing judge to set a period of parole ineligibility in excess of 10 years having regard to “the character of the offender, the nature of the offence and the circumstances surrounding its commission”. An increased period of parole ineligibility beyond the ten year minimum does not require “unusual circumstances”: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at paras. 16-19; 26-27.

[28] A number of additional factors are also appropriately considered when determining parole ineligibility. In Shropshire, the Supreme Court made clear that denunciation and deterrence should be considered when evaluating the nature of the offence. A criminal record is also a relevant factor when deciding parole ineligibility. As well, the jury recommendation on parole ineligibility is a factor to considered but should not be treated as determinative: R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at paras. 270-74.

[29] I will deal with the nature of the offence when discussing the aggravating and mitigating features in this case.

Personal Circumstances of Mr. Smith

[30] Mr. Smith is 29 years of age. At the time of the offence he had no criminal record. Mr. Smith’s mother, with whom he resided seven months prior to arrest in Desoronto, Ontario, passed away whilst he was in custody.

[31] At the time of the offence, Mr. Smith was working as a construction worker and has been a member of the LiUNA Construction Workers Union since 2014. He has been employed in the construction industry since he was 14 years old. His family background is not a happy one. He never knew his biological father who was abusive to his mother who escaped the family home with the aid of a friend. Both parents had alcohol and drug issues which played a part in Mr. Smith’s troubled upbringing. According to Mr. Smith, his mother used drugs during the time she was pregnant with him and he ascribes the fact that he suffers from Attention Deficit Disorder and Fetal Alcohol Spectrum Disorder to this habit.

[32] Mr. Smith’s family moved around the province on several occasions to avoid the Children’s Aid Society but when Mr. Smith was approximately 16 years old, he and his siblings were apprehended by the Children’s Aid Society. Resultantly, Mr. Smith spent time in foster homes and in a group home.

[33] Mr. Smith lost both his mother and father when in custody for this offence. His mother suffered from Multiple Sclerosis and elected assisted suicide because of her severe pain. His father died from a drug overdose shortly after his arrest. Mr. Smith attended his father’s funeral but was unable to attend his mother’s.

[34] Mr. Smith dropped out of school at age 16 but has attended night school.

[35] He has a son, Caleb, to whom he is described a dedicated father. According to Mr. Smith, coming to Toronto exacerbated his drug and alcohol use. His family describe him as a young man with a good heart, who is both “caring” and “compassionate”.

Jury Recommendations

[36] As required under s. 745.2 of the Criminal Code, the jurors were asked for their recommendations with respect to the parole ineligibility period to be imposed for Mr. Smith. Five jurors recommended 10 years, one juror recommended 12 years and the remaining six jurors recommended 15 years.

Legal Precedents

[37] The following cases show the variation in sentencing for second degree murder in the context of a physical beating as occurred in this case:

[38] R. v. Oliver (2005), 2005 3582 (ON CA), 194 C.C.C. (3d) 92 (Ont. C.A.): The accused was convicted of second degree murder. Following a verbal altercation, he and a friend beat a mentally and physically disabled homeless person to death. The deceased was later found in a nearby pedestrian tunnel. The Crown’s theorized that they attacked the deceased because he had been bothering the co-accused’s girlfriend at work. The accused was 31 years old and an alcoholic, with an extensive criminal record, including several assaults. The jury recommended a 10-year parole ineligibility period. The Court of Appeal upheld the trial judge’s sentence of 12 years parole ineligibility.

[39] R. v. Peever, [2005] O.J. No. 5267 (S.C.): The accused pleaded guilty to second degree murder. He beat the deceased with his fists, transported him in the trunk of his car, and threw him into a river. It was not clear whether the deceased was still alive when he was thrown into the river, but the evidence showed that he had been brutally beaten. The deceased was unsuspecting, but the defence suggested that the accused believed that the deceased had raped his wife. The accused and his wife had appeared to lure the deceased to their house to attack him by surprise. The accused attempted to enlist a friend’s help to beat the deceased, which was also an aggravating factor. The facts suggested a degree of planning and deliberation. The accused had no prior criminal history and otherwise demonstrated pro-social behaviour. The judge imposed a 12 year parole ineligibility period.

[40] R. v. Habibullah, [2005] O.J. No. 2782 (S.C.): The accused pleaded guilty to second degree murder of his brother’s 15-year old friend. The accused, his brother, and a friend were at a party with the deceased, when they took him to an area near Lake Ontario. They beat the deceased severely on his head and neck and dumped him in the lake, where he died from drowning. There were no signs of resistance by the deceased, who was much smaller than the accused and co-accused, and who was severely intoxicated at the time. The accused was 19 years old at the time of the offence and had no prior criminal record. He was sentenced to life imprisonment with a 15 year parole ineligibility period.

[41] R. v. Bouchard, 2016 ONSC 4484: On a retrial, the accused was convicted by a jury of second degree murder. The judge determined that the parole ineligibility period imposed after the first trial remained fit, despite the fact that evidence of manual strangulation was not adduced on retrial and the accused had demonstrated significant potential for rehabilitation in the intervening years. The accused and the deceased were friends, and were returning from a concert, highly intoxicated. The deceased attempted to kiss the accused, who reacted violently. The accused stomped on his head and neck, and left him to die of his injuries. The deceased would not have been a physical match against the accused. The accused had been sexually and physically abused as a child and had a history of substance abuse. He also had a significant criminal record, including a number of assaults, and was on probation at the time. The accused was 30 years old at the time of the murder. A 15 year parole ineligibility period was imposed.

[42] R. v. Jarvis, 2017 ONSC 6405: The accused pleaded guilty to second degree murder of a 62-year old woman to whom he owed money. The deceased repeatedly asked the accused to repay the money. The accused attended at her house one day unannounced to discuss his debt, but he did not have any money. He choked her until she was incapacitated and then slashed her throat with a knife from her kitchen. He stole some of her jewelry, which he pawned. The accused had a criminal record consisting of two property offences and had a history of drug abuse. He was 48 years old at the time of the offence and expressed remorse. Defence and Crown counsel jointly submitted that the parole ineligibility period should fall between 17-20 years. The judge imposed a parole ineligibility period of 18 years.

[43] R. v. E. (N.H.), 2001 BCSC 688: The accused was found guilty of second degree murder. The deceased was biking home from work when he was randomly accosted by three strangers. They kicked him until he was rendered unconscious. Two of the men stopped at this point, but the accused continued to kick and stomp the deceased’s head. They then fled the scene. The accused was approximately 20 years old at the time of the offence. He is aboriginal, suffered considerable abuse growing up, and was an alcoholic. He had a youth record and was convicted as an adult of assault and assault with a weapon. The sentencing judge would have imposed a 14-year parole ineligibility period, but considering Gladue principles set the period at 12 years.

[44] R. v. Beardy, 2013 MBQB 15: The accused, an aboriginal offender, was found guilty of second degree murder. The deceased, who was much smaller and more passive, was inexplicably beaten to death by the accused and two others. The accused had a lengthy criminal history with a number of violent convictions, most of which were related to alcohol and drug abuse. He expressed a degree of remorse but was identified as a high risk for reoffending. A 14 year parole ineligibility period was imposed.

[45] R. v. Chen, 2015 ONSC 3759: The offender assaulted his mother inflicting injuries that led to her death. Prior to the assault, he appeared to be showing signs of mental disintegration. The sentencing judge found that the victim died after the offender beat her with his fists but that his mental illness played a significant role in his actions. The offender had no criminal record. The sentencing judge imposed a 10 year parole ineligibility period.

[46] R. v. Pandurevic, 2013 ONSC 332: The offender was found guilty of second degree murder. The accused attacked the deceased in the lobby of his apartment building, breaking his jaw and stabbing him multiple times with a paring knife. After killing the deceased the accused fled to Bosnia with his mother and remained there before returning 6 months later to surrender to police. The sentencing judge found that there was some “unknown prior conflict” between the deceased and accused which triggered the accused’s decision to attack the deceased when he saw the deceased in the apartment lobby. The accused was a youthful offender who had the support of his family. He expressed genuine remorse at sentencing. The sentencing judge imposed a 10 year parole ineligibility period.

[47] R. v. Shearer, 2015 ONSC 3890: The accused, an aboriginal offender, was found guilty of second degree murder. The accused beat the deceased with a baseball bat because the accused believed that the deceased had beaten the accused’s former girlfriend. The accused had a troubled childhood which led to substance abuse issues. The accused received a cancer diagnosis as an adult which was described as slowly progressing and incurable. His diagnosis led to a dependence on prescription medication. The accused had family support and expressed remorse. The accused had multiple prior assault entries on his criminal record. The sentencing judge imposed a 10 year parole ineligibility period.

[48] R. v. Land, 2013 ONSC 6526: The accused, an aboriginal offender, pleaded guilty to second degree murder. The accused and his co-accused killed the deceased during a brutal attack. The attack was committed in the deceased’s home, where the deceased was allowing the accused to stay. The accused had a significant criminal record, and committed another attack on an inmate while incarcerated for this offence. The accused also had an extremely troubled childhood and experienced substance abuse issues. The accused expressed considerable remorse and turned himself into police shortly after the attack. The accused was a young offender with a supportive family. The sentencing judge imposed a 10 year parole ineligibility period.

[49] It would be an impossible task to find a case that exactly matched Mr. Moreira and Mr. Smith’s case. I find some of the cases put forward by Mr. Morris to be distinguishable. Land and Shearer were cases involving an aboriginal offender and therefore required judicial scrutiny pursuant to the principles of R. v. Gladue, 1999 679 (SCC), [1999] 1 SCR 688. In Chen, the court placed great emphasis on the offender’s mental illness as a contributing factor to the offence.

[50] The closest case, by comparison, to the instant case would be E. (N.H.) which also concerned an aboriginal offender. Nevertheless, the court decided that parole ineligibility should be increased to 12 years.

THE SENTENCING PRINCIPLES IN RELATION TO MATTHEW MOREIRA

Personal Circumstances of Mr. Moreira

[51] Mr. Moreira is now 35 years of age, He has a troubled background. His parents divorced when he was one year old and he resided with his mother after the breakup of the family. When she remarried, Mr. Moreira became the victim of an abusive stepfather and left the family home in his early teenage years to live with his father and step mother.

[52] He began drinking when he was 11 and his alcohol consumption increased, taking over his life until, aged 16, when he hit rock bottom. Mr. Moreira dropped out of high school in Grade 9 but found employment mainly in the construction industry.

[53] In 2011, Mr. Moreira became a father to a daughter who is now 8 years old. In 2016, Mr. Moreira met Paulina Kacpura, his current partner and his life changed, for the better, as a result. Since being incarcerated for this offence, he has completed a number of educational courses although, as the Crown points out, the courses were taken and completed since his conviction.

[54] Mr. Moreira has health issues caused by misplaced Gravol injections. Prior to entering detention, he sustained a serious hand injury which requires surgery. I note, however, that a video played at his sentencing hearing showed Mr. Moreira using that hand to devastating effect when knocking a fellow inmate flat onto his back during an altercation. This altercation occurred after the inmate appeared to instigate a confrontation with Mr. Moreira.

[55] Mr. Moreira has support from his family and friends, with his father and sister attending his sentencing hearing. Both have written positive character references on his behalf. Moreover, Ms. Kacpura has maintained her relationship with Mr. Moreira throughout his time in custody and will strive, on his release, to build a strong family unit which will assist Mr. Moreira in his rehabilitation.

[56] Mr. Moreira also filed letters from fellow inmates who testified to his positive traits and qualities whilst incarcerated.

[57] These 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.

Legal Precedents for Manslaughter

[58] The Crown seeks a sentence for Mr. Moreira totalling 14 years. They request a sentence in the range of 10-12 years for manslaughter and a consecutive 2 year sentence for robbery. The defence, on the other hand, submit that a 5 year sentence for manslaughter is the appropriate sanction with a 2 year sentence for robbery to run concurrently.

[59] Sentences for manslaughter fall on a wide spectrum based on the broad factual circumstances accompanying the commission of the offence: R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, at p. 48; R. v. Carriere (2002), 2002 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10; R. v. Csincsa, 1993 14863 (MB CA), [1993] M.J. No. 237 (C.A.); R. v. Henry, 2002 NSCA 33, at para 16.

[60] Both sides cite precedent in their cause. The disparity in the precedent reflects the observations made in Creighton.

[61] The Crown’s cases obviously demonstrate the higher range of sentence.

[62] R. v. Friedrich (1994), 1994 3168 (BC CA), 55 B.C.A.C. 75 (C.A.): The offender and a co-accused stabbed the victim of a robbery to death. The co-accused pleaded guilty to second degree murder and received a life sentence with a 14 year parole ineligibility period. Friedrich was convicted of manslaughter. He was 20 years old, had no criminal record and a favourable employment history. He received a sentence of 15 years imprisonment which was upheld on appeal.

[63] R. v. Smith, [1994] B.C.J. No. 3054 (B.C.C.A): The offender was convicted of two counts of manslaughter, unlawful confinement, and robbery. Breaking into a boat to commit a robbery, the offender and an accomplice found two occupants asleep onboard. Whilst Smith confined and robbed the victims his accomplice strangled them with an electric cord. Smith was 27 years old, and had an extensive criminal record consisting of 20 convictions for property offences and assault. He was sentenced to 20 years in custody.

[64] R. v. Garrison, 1999 2875 (ON CA), [1999] O.J. No. 3782 (C.A.): The offender was convicted of throwing an extremely intoxicated elderly victim to the ground, causing him to hit his head and die. The Crown’s theory of the case was that this was a robbery. The trial court sentenced the offender to 14 years in jail on top of 10 months of pre-sentence custody. This was reduced to 10 years on appeal because the injury was attributable to the victim’s particular vulnerability rather than the force used in the assault.

[65] R. v. Maxwell, 1999 BCCA 648: The offender accompanied two co-accused as they broke into the home of an elderly man and subdued him. The victim sustained a serious injury and died of a heart attack. Maxwell had a criminal record including 22 convictions for property offences, assault, and robbery. He pleaded guilty to manslaughter during the trial for first degree murder and received the equivalent of a 17-year sentence which was upheld on appeal.

[66] R. v. Monk, 2005 BCCA 394: The offender participated in a home invasion which resulted in the home owner’s death. Monk was aboriginal and aged 19 at the time of the offence. He had an extensive criminal record and was on probation at the time of the offence. The sentencing judge imposed a 15 year sentence of imprisonment. He appealed on the basis that the principal offender received a lesser sentence of 12 years despite greater moral culpability. In rejecting the appeal, the British Columbia Court of Appeal held that the sentence was fit because of Monk’s “persistent pattern of serious criminal conduct” and the fact that “previous leniency has not rehabilitated Mr. Monk”.

[67] On behalf of Mr. Moreira, Ms. Zita relies upon the following cases:

[68] R. v. Clarke (2003), 172 O.A.C.133 (Ont. C.A.): The offender was convicted of manslaughter. He was intoxicated when he stabbed his frail victim 7 times, 2 of which were fatal. He had a minor and unrelated criminal record. The sentencing judge imposed a 12 year prison sentence which was reduced to 9 years on appeal.

[69] R. v. Devaney (2006), 2006 33666 (ON CA), 213 CCC (3d) 264 (Ont. C.A.): The offender was convicted of manslaughter after he stabbed his landlady, a woman in her 60’s, 107 times all over her body. The victim also sustained a blunt force injury to her head. She had 25 defensive wounds, indicating a significant struggle. The judge imposed a sentence of 11 years which the appellate court upheld after a Crown appeal.

[70] R. v. Funes, 2015 ONSC 5729: The accused organized a robbery at an illegal poker game. One man was shot to death during the robbery. The accused had a lengthy criminal record and intended to plan another robbery after the shooting. The judge imposed a sentence of 11 years imprisonment.

[71] R. v. Stone (1999), 1999 688 (SCC), 134 CCC (3d) 353 (S.C.C.): The offender was convicted of manslaughter after he admitted that he stabbed his wife 47 times, including twice in the chest, but maintained that he did so in state of non-insane automatism. After leaving her body in his car, he fled to Mexico. Provocation was a live issue in the case and the offender had no prior criminal record. The judge imposed a sentence of 7 years which was upheld on appeal.

[72] R. v. Croft, 2018 ONSC 4405: The offender killed his half-brother by stabbing him with a steak knife during a fist fight and was convicted of manslaughter. The offender was 49 years old and had a successful career as a carpenter and cabinet maker. Previously, the offender was the victim of a machete attack and the injuries he sustained caused him to lose his home, business, and family. In addition, the prior attack caused post-traumatic stress disorder. The offender was alcoholic and had a criminal record including entries for assault and many failures to attend court and failing to comply with bail conditions. He was sentenced to 6 years imprisonment.

[73] The disparity in cases show the individualised approach in sentencing for manslaughter. I note that many of the defence cases lack the aggravating features of this case. For example, in R. v. Benjy, 2012 ONSC 4463, self-defence was a live issue which resulted in a sentence of 5 years. Similarly, in R. v. Ibrahim, 2016 ONSC 1538, the offender intentionally struck the victim with his taxi because he had had been involved in an argument moments earlier. The judge sentenced him to 4 years imprisonment because of his lack of record, excellent work record, and expression of remorse. None of these features are present in this case. In R. v. Corbett, 2015 ONSC, where a 5 year sentence was imposed, the offender killed his friend over a dispute about money. There was an element of self-defence with regard to the offender’s actions and he had no criminal convictions for violence on a minor record.

[74] Similarly, in other cases put forward by the defence, there are strong mitigating characteristics: in Stone and Devaney, the offenders had no criminal record. In Croft, the offender had severe psychological issues as well as struggles with alcohol.

[75] In my view, these cases are not analogous to Mr. Moreira’s circumstances.

[76] Reviewing the authorities, I find that the range of sentencing appropriate to this case falls between 10 to 15 years.

THE SENTENCING PRINCIPLES IN RELATION TO BOTH OFFENDERS

Victim Impact Statements

[77] The Crown filed victim impact statements which were read into the court by the authors. Magda Khatib, Mr. Noureddine’s mother, recounted her enduring pain at the loss of her son and the effect that it had on Zaher Noureddine’s siblings. She spoke of the “sparkle” that he brought to their family life and his nightly phone calls before she went to sleep because she needed to hear he was safe.

[78] Mr. Noureddine’s father and uncle told the court of the promising life awaiting Mr. Noureddine, a life snatched from him by Mr. Moreira and Mr. Smith’s actions.

[79] Finally, Mitchell Conery testified to his friendship with Mr. Noureddine, and his generosity to those around him. He spoke of Mr. Noureddine’s inspirational abilities as a work colleague and a human being. Mr. Conery explained that he has not been able to return to normal life since the incident, moving from job to job because of his inability to cope with anxiety and the guilt he carries with him because he failed to help his friend survive the offenders’ fatal attack.

Aggravating and Mitigating Features

[80] There are a number of aggravating features in this case which must be factored into the “circumstances surrounding the offence” criterion.

[81] This was a pre-meditated, unprovoked, brutal assault on two unsuspecting, defenceless, strangers outnumbered by their assailants. Witnesses described the number of blows directed on Mr. Noureddine as “too many to count”. These blows were delivered with considerable force. The attack was of such ferocity, that many of the witnesses believed, from their vantage point, that Mr. Noureddine was going to die.

[82] One witness likened the manner of the kicks that landed on Mr. Noureddine as akin to a person trying to kick a soccer ball down the length of a field. There was also evidence that Mr. Noureddine was restrained in a headlock whilst being beaten. I note that the punches and kicks to Mr. Noureddine were all aimed at his head, one of the most vulnerable parts of the body.

[83] As discussed previously, there is an absence of explanation as to why this attack occurred. If robbery is not an available explanation, then Mr. Noureddine’s death would appear to be a random and senseless killing, something that also factors into the circumstances surrounding the offence.

[84] The most disturbing evidence in this case, however, is the elevator video clip which recorded all three men returning to Mr. Smith’s apartment building after the incident. 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.

[85] I accept that at the time of this recording, neither Mr. Smith nor Mr. Moreira knew that Mr. Noureddine had died. However, they knew what they had seen: Mr. Noureddine on his knees, gasping for air, begging for mercy as blow after blow and kick upon kick rained down on him. This was what was being celebrated in the elevator. This was Mr. Moreira’s and Mr. Smith’s source of pride and pleasure.

[86] It is hard to understand how such a “caring” and “compassionate” man - the words Mr. Smith’s family used to describe him - could inflict a crime of such brutality and revel in his achievement.

[87] With respect to mitigation, I have already noted that, significantly, Mr. Smith is a first time offender with a troubled background. He is still relatively youthful and has some potential for rehabilitation. I accept the fact that Mr. Smith demonstrated a limited degree of remorse by pleading guilty at the outset of the trial to the offence of manslaughter. He appears to have a good support network and has completed a number of educational sessions offered by Corrections Canada whilst in custody.

[88] Mr. Moreira, too, is a man with a troubled background and family support. He appears to have taken educational courses whilst in custody 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.

[89] On the other hand, he has a lengthy criminal record with several convictions for violence. As noted, he also has a history of failing to comply with probation orders. The letters of support, referred to previously, which refer to Mr. Moreira’s newfound conscience and a desire to avoid the routes of criminal activity must be read in this light. Indeed, it cannot have escaped anyone’s attention that Mr. Moreira was on probation when he committed this offence. There is no real doubt that Mr. Moreira’s prospects for rehabilitation are poor.

[90] Both men were given the opportunity to make comments at the end of sentencing submissions. Mr. Smith chose to repeat the manner in which he had been hard done by in life adding very little by way of remorse with respect to his crimes. Mr. Moreira, on the other hand, read out a written statement purporting to express remorse for his actions. However, I find that his statement was an expression of regret of the situation that he now finds himself in after being convicted of killing Zaher Noureddine and robbing Mitchell Conery. The statement was all about Mr. Moreira and his loss and inability to see his daughter.

[91] I repeat that I appreciate that a lack of remorse is not an aggravating factor in sentencing: R. v. Fraser, 2016 ONCA 745, at para. 13. However, neither is it mitigation when the remorse is based not on the shocking fact of Mr. Noureddine’s death but the reality of being caught, convicted, and have to suffer the negative consequences: R. v. Alexander, 2014 ONCA 22, 315 O.A.C. 49, at para. 22.

The Appropriate Sentence

[92] Zaher Noureddine’s death was the result of a pre-mediated and vicious beating. Mr. Noureddine was a young man to whom life promised much and who himself offered much to life. The only reason he came face to face with Mr. Smith and Mr. Moreira on 29 December 2015 was because he had generously chosen to give his time and effort to encourage his friend and mentee Mitchell Conery.

[93] 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.

[94] There is one stark reality to the sentence I am imposing. No punishment that I sanction will ever bring Mr. Noureddine back to life. Nothing that I do will ever alleviate Mr. Noureddine’s family of the suffering which they will endure for the rest of their lives.

[95] As noted by Watt J., as he then was, in R. v. Browne, [2002] O.J. No. 900, at para. 17:

The criminal law does not restore life. The objectives, principles and factors that govern the imposition of sentence are not meant to represent the value of the life that has been unlawfully taken. They are designed to reflect the moral blameworthiness of the person who commits an offence and the gravity of the offence, so far as the law is concerned, that he or she has committed.

[96] I take into account the facts of this offence as I have found them to be, the aggravating and mitigating factors and the legal principles when arriving at my determination of the appropriate sentence.

[97] Mr. Smith will be sentenced to life imprisonment and will be ineligible to apply for parole for a period of 12 years. He is sentenced to a term of 1 year for assault which will be served concurrently. He will provide a DNA sample pursuant to s. 487.051 of the Criminal Code and be prohibited from possessing any weapon pursuant to s. 109 of the Criminal Code.

[98] Mr. Moreira will serve a total sentence of 13 years. I apportion 12 years to the manslaughter conviction and 1 year consecutive for the robbery.

[99] Mr. Moreira has been in custody since 19 April 2016 which amounts to a total of 1106 days pre-sentence custody. Calculated on 1.5:1 basis that total results in a deductible pre-sentence custody of 1659 days. I will round this figure up to 4 years and 7 months. The remaining custodial portion is therefore 8 years and 5 months.

[100] I decline to grant credit, as requested, for the lockdowns experienced by Mr. Moreira when held in custody at the Toronto South Detention Centre. I have no evidence as to the effect of those conditions and how they impacted Mr. Moreira: R. v. Duncan, 2016 ONCA 754, at para. 7. As well, I note findings of misconduct were made against Mr. Moreira during his time in custody. This is important because in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 71, the court held that instances of misconduct were a relevant factor that could lead to a reduction in credit given for pre-sentence custody. See also: R. v. Farah, 2016 ONSC 5000.

[101] I also order that both men be subject to a non-contact condition prohibiting any form of contact with Mitchell Conery, Michael Bruton, Alejandra Mihic, Alexander Boake and Jeffrey Moores, and any member of Mr. Noureddine’s family except indirectly through their counsel for the duration of their sentences.

S.A.Q. Akhtar J.

Released: 29 April 2019

COURT FILE NO.: CR-18-70000622

DATE: 20190429

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MATTHEW MOREIRA AND PATRICK SMITH

REASONS FOR SENTENCE

S.A.Q. Akhtar J.