CITATION: R. v. Moseley, 2026 ONSC 1369

COURT FILE NO.: CR-24-00016485-00AP DATE: 20260306

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent

– and –

MICHAEL MOSELEY Appellant

COUNSEL: C. Villacci, for the Crown C. Sewarattan, for the Appellant

HEARD: February 6, 2026

REASONS ON SUMMARY CONVICTION APPEAL

J. Di Luca J.

Overview

1On January 16, 2024, following a two-day trial before Fillier J. of the Ontario Court of Justice, the appellant was convicted of assault causing bodily harm and threatening.

2On April 15, 2024, he was sentenced to two years less one day in jail and two years’ probation on the assault cause bodily harm count. He was sentenced to 10 days time served in addition to two years’ probation on the threatening count.

3The appellant appeals the conviction and sentence in relation to the assault cause bodily harm count only. He submits that a new trial is required and, in the alternative, submits that in view of fresh evidence tendered, he should receive a conditional sentence of imprisonment.

4For the reasons that follow, the conviction appeal is dismissed. The sentence appeal is allowed, and the sentence is reduced to 18 months in jail.

Facts at Trial

5The complainant, Mr. Neville, had a severe alcohol addiction. On April 14, 2022, he spent the day drinking at home and at a local bar. At some point around 3:00 a.m. on April 15, 2022, he ended up at the appellant’s residence banging on the front door, turning the doorknob and possibly trying to use a key.

6The appellant communicated with the complainant through the door and told him to leave. Mr. Neville persisted. The appellant then opened the door and physically confronted Mr. Neville. The appellant pushed Mr. Neville who fell backwards off the front door stairs to a concrete landing on the ground. The altercation also involved punching and kicking.

7Eventually, when Mr. Neville was lying motionless on the ground, the appellant found a cell phone in Mr. Neville’s pocket and examined it. He recognized the photograph on the screen as the daughter of a nearby neighbour, Ms. Parkman.

8The appellant then dragged Mr. Neville down the street to Ms. Parkman’s residence and knocked on the door. After a while, Ms. Parkman opened the door and spoke with the appellant. The discussion was recorded by Ms. Parkman’s daughter.

9Ms. Parkman eventually recognized Mr. Neville and noted that he was beaten and bloodied and had his pants around his ankles with his backside bloodied.

10While in front of Ms. Parkman’s residence, the appellant further assaulted Mr. Neville by hitting his head off the ground, kicking him once and spitting on him. He also threatened to kill him.

11Following the assault, Mr. Neville was hospitalized and placed in intensive care. He had a left orbital bone blow out fracture to his eye. He had fractures to four ribs. He had isolated transverse process fractures of four vertebrae. He also had multiple lacerations and abrasions to his head, face and thigh.

12The appellant had no injuries.

13At trial, the appellant claimed that he acted in self-defence. In particular, he claimed that when he first heard Mr. Neville at the door, he concluded that he was either the Grim Reaper or a hitman perhaps hired by an ex-girlfriend who had been sent to murder him. He was certain that the man was armed with a weapon, either a knife or a gun. Despite having had some limited interactions with Mr. Neville in the neighbourhood, he claimed not to recognize him.

14When Mr. Neville refused to leave, the appellant decided to exit his house and “take his life into his hands” by dealing with what he perceived as a threat to his life. He claimed that Mr. Neville then tried to push his way into the house and when he pushed back, both he and Mr. Neville fell forward off the stairs onto the concrete landing. Mr. Neville then began punching him in the head and face and the appellant fought back, fearing for his life.

15The appellant agreed that after he rendered Mr. Neville motionless, he found Mr. Neville’s cell phone and learned of his identity. He also agreed that he dragged Mr. Neville down the street to the residence where he believed he lived. Lastly, he agreed that he threatened Mr. Neville once at the Parkman residence but denied further assaulting him.

The Reasons of the Trial Judge

16The trial judge gave detailed oral reasons. She correctly stated the principles of law relating to self-defence, and correctly self-instructed on W.D. principles and the concepts of credibility and reliability.

17In view of the positions at trial, there was no issue that the appellant assaulted Mr. Neville and caused various injuries. The only issue was whether the Crown had disproven self-defence beyond a reasonable doubt. This issue focused mainly on the appellant’s own evidence.

18As set out in her reasons, the trial judge clearly rejected the appellant’s evidence in its entirety. She found his evidence to be incredible, self-serving and replete with inconsistencies. Specifically, she rejected his claim that he believed he was going to be murdered by a hitman hired by his ex-girlfriend. She found his explanation for why he left the safety of his home to confront his perceived attacker to be illogical and nonsensical.

19In the course of her reasons, she stated:

In my view, the most reliable and compelling piece of evidence of what actually transpired, however, does indeed come from Mr. Moseley himself when he did not know he was being recorded. Exhibit 2 in these proceedings is an audio clip of a video taken by Caitlin Parkman, who had the wherewithal to record after Mr. Moseley arrived at the door with her step-father lying on the ground.

Having listened to the audio tape multiple times in my deliberations, I find that Mr. Moseley says the following upon arrival during a discussion with Jacqueline Parkman:

“I’m sorry. Does he belong to you? He tried to break into my fucking house. Well, he has a picture of Jocelyn on his phone. Well, it looks like her. It’s your baby daddy, though, right? Okay. I fucked him up pretty bad because he tried. He tried to break into my house. I didn’t know who he was. He tried to open my door. I told him “No”, multiple times to go away. I have it on my camera. He said, no, no, no. I opened the door, I kicked him down the fucking stairs and beat the shit out of him.”

After uttering these words, there is silence on the audio, before it is obvious that Mr. Moseley can be heard smacking Mr. Neville in some fashion, telling him repeatedly to wake up, and eventually saying, “If you ever come to my fucking house again, I will fucking end you.”

20The trial judge rejected self-defence and concluded that the appellant instigated a physical confrontation for the purpose of ridding himself of “the nuisance that was Mr. Neville, drunk and mistakenly at the wrong door…” and that this altercation “culminated in dragging the gentleman 80 metres down the sidewalk and dumping him like garbage in front of Ms. Parkman’s residence.” Lastly, the trial judge also rejected any suggestion that Mr. Neville ever physically assaulted the appellant.

Conviction Appeal

21In support of his conviction appeal, the appellant raises one issue relating to the trial judge’s purported use of a finding that the appellant “fabricated” aspects of his evidence, contrary to the principles set out in R. v. Iqbal, 2021 ONCA 416 and R. v. Z.V., 2025 ONCA 210.

22The message from these cases, and the cases they build on, is clear. In the absence of independent evidence of fabrication, it is an error for a trial judge to infer that the defendant must have deliberately fabricated evidence in order to avoid culpability for the crime alleged. In short, rejected evidence is simply that, rejected evidence. In the absence of independent evidence of fabrication, it does not become a makeweight in favour of the Crown.

23The appellant points to two passages in the reasons for judgment which he submits support the position that the trial judge erred.

24The first passage is found in the portion of the trial judge’s reasons dealing with the appellant’s alleged belief that Mr. Neville was a hitman sent by his ex-girlfriend. On this issue, the trial judge stated:

In my view, Mr. Moseley’s evidence at trial that he was sure the person knocking on his door in the middle of the night was there to kill him was a fabrication completely unhinged from reality. The notion that his ex-girlfriend might have hired someone to kill him lacked foundation whatsoever. Furthermore, all of the steps that Mr. Moseley took throughout the incident are completely inconsistent with someone who believes they are about to be murdered.

25The second passage relates to the appellant’s attempt to explain why he did not simply call police on the purported hitman instead of opening the door and physically confronting him. On this issue, the appellant explained in his evidence that when he was eight years old, he had been accused of arson by police and perhaps also convicted, which resulted in long term consequences. He explained that this incident, and others, resulted in him not trusting police. In addressing this issue, the trial judge stated:

He…said he honestly believed at the time of trial that if he called 9-1-1 to report a homicidal person at his door, the police would not have come to assist. I find Mr. Moseley’s story about being convicted of arson at the age of eight to be contrived completely.

26In my view, when I consider the trial judge’s reasons as a whole and in context, she committed no error. While use of language such as “fabrication” can raise concerns about whether the judge is using the evidence as a makeweight on behalf of the Crown, it is also clear that at times, judges used the term “fabrication” as a descriptive synonym for disbelieved evidence.

27Simply disbelieving evidence is not an error and that is what the trial judge did in this case. She did not use the evidence as a makeweight. Moreover, she gave detailed and cogent reasons for why the appellant’s evidence did not leave her with reasonable doubt on self-defence. Her clear rejection of his evidence and the reasons articulated for it, are amply supported by the record. In short, Mr. Moseley lied about what happened and the trial judge committed no error in rejecting his evidence.

28Even if the two instances complained of could be categorized as instances where the trial judge used her rejection of the appellant’s evidence as an evidential makeweight, I am satisfied that the proviso would apply. The case against the appellant was overwhelming, especially in view of his own recorded comments and conduct at the Parkman residence. Indeed, his own statements in that recording, and his observed conduct at the Parkman residence, which the trial judge accepted, put the lie to his testimony.

29The conviction appeal is dismissed.

Sentence Appeal

30I turn next to the sentence appeal. The appellant argues that the sentence imposed of two years less one day in jail is demonstrably unfit. He argues that the trial judge erred by failing to apply the principle of restraint and by failing to give proper effect to the impact that a custodial sentence would have on the appellant, citing R. v. Habib, 2024 ONCA 830.

31The appellant also brings a fresh evidence application which includes a risk assessment report, confirmation that the appellant has completed an anger management program, and evidence relating to a beating that the appellant sustained while in custody awaiting bail pending appeal. He has also filed evidence relating to the fact that he has been on very restrictive bail pending appeal conditions for a lengthy period of time without incident and has, since the sentencing, become a father two more times.

32Taken together, the appellant argues that the sentence appeal should be allowed, and a conditional sentence of imprisonment should be imposed.

33At the sentencing hearing, Crown counsel asked for a sentence of two year less one day in jail. The defence did not ask for a conditional sentence and instead submitted that a sentence of six months in jail would be sufficient.

34In her reasons for sentence, the trial judge noted that the appellant was 31 years of age at the time of sentencing, had no criminal record, and was in a domestic relationship that had produced a six-month old child and included the appellant acting as a step-father to his partner’s six year old son. She also noted that his partner was “understandably concerned about what will happen if he goes to jail.”

35The trial judge found that the principles of denunciation and deterrence were the primary sentencing principles in view of the brutal and ruthless attack on Mr. Neville. She expressed doubts about the appellant’s prospects for rehabilitation given his lack of insight and attempts to blame Mr. Neville. As a result, she imposed a sentence of two years less one day, which is the maximum available sentence on a summary conviction prosecution.¹

36Nowhere in her judgement does the trial judge address or mention the principle of restraint. In my view this is an error in principle. The appellant was a first offender with significant family obligations. He was 29 years of age at the time of the offences. He had a positive track record of employment and family support. Despite his positive antecedents, he committed a very serious and violent offence with significant consequences to the victim.

37In these circumstances, it was incumbent on the trial judge to grapple with the principle of restraint. She should have asked “what is the lowest sentence that can be given while not sacrificing the principles of denunciation and deterrence?” She erred in failing to ask and answer this question.

38In finding an error in principle, I want to be clear that I do not entirely fault the trial judge. She was manifestly unimpressed with the appellant’s evidence at trial. His credibility again became an issue at the sentence hearing when it was revealed that comments attributed to him in the pre-sentence report were materially inconsistent with his sworn evidence at trial.

39The trial judge raised this concern with counsel, and the writer of the pre-sentence report was called to testify to verify attribution of the comments to the appellant. The inconsistency appears to have been proven and this finding deprived the trial judge of an ability to place much weight on evidence relating to the appellant’s background. Counsel also had to file an additional affidavit addressing a separate apparent inconsistency in the evidence, though this inconsistency appears to have been explained to the judge’s satisfaction.

40In short, it is hardly surprising that the trial judge took a harsh view of the appellant when it came time to fashion an appropriate sentence.

41In terms of the alleged error in relation to the trial judge’s failure to consider the impact of incarceration on the appellant’s dependants, I see no such error. While the trial judge would not have had the benefit of the Habib decision at the time she imposed sentence, she was clearly alive to the personal and family circumstances of the appellant and specifically mentioned that his partner had expressed concerns relating to her ability to care for the children in his absence.

42I turn next to the fresh evidence. Given that I have found an error in principle, I will consider the fresh evidence in order to decide what the appropriate sentence should be. In this regard, I note that the Risk Assessment Report concludes that the appellant is at a low risk to re-offend violently. However, I am unable to place any weight on this report for two related reasons. First, while the nature of the conviction was provided to the report writer, the facts of the offence were presented as allegations. The report writer was not provided with a transcript of the reasons for judgment, only the brief reasons for sentence. As such, the report writer was not provided with the complete facts as found by the trial judge. Second, the report writer noted and relied upon the appellant’s version of events, which was explicitly rejected by the trial judge. Nowhere in the report does the report writer address the fact that the appellant’s version of events was false. A risk assessment that is not based on the actual events is of little value. The report writer should have understood and considered the fact that the appellant administered a brutal and prolonged beating on a victim for reasons that did not match his recitation of events.

43As for the balance of the fresh evidence, I accept that the appellant has now completed an anger management program, and this stands to his credit. I also accept that he now has two additional children to care for. Lastly, I accept that while incarcerated and awaiting his bail pending appeal, the appellant was beaten while in jail. There are obvious credibility problems with anything the appellant says. However, given the corroborating photographs of the injuries I am satisfied on a balance of probabilities that he sustained some injuries in jail in an incident that included the use of derogatory racial language. I am prepared to take this into account as mitigating in the circumstances.

44I turn to the request for a conditional sentence of imprisonment. In my view, the brutal nature of the one-sided, prolonged attack on a victim who was rendered unconscious and also suffered a string of significant injuries, clearly requires a sentence that gives primacy to the principles of denunciation and deterrence. Even considering the fresh evidence in accordance with the findings I have made, I am not satisfied that a conditional sentence of imprisonment would be appropriate in this case. The facts of this case manifestly require real jail. I reach this conclusion even though I accept that the appellant has been on a strict bail pending appeal for a lengthy period of time.

45Lastly, I consider the quantum of jail that is appropriate in this case based on the record before me. In this regard, I must consider the principle of restraint to arrive at a balanced sentence that adequately reflects the seriousness of the offence including the impact on the victim and the very high degree of moral blameworthiness of the appellant as well as the appellant’s relative youth, significant family commitments, and absence of prior criminal antecedents. In doing so, I also consider the impact that his incarceration will have on his immediate dependents.

46Considering all the foregoing, the sentence appeal is allowed, and the sentence is reduced to 18 months incarceration. The probation order and other ancillary orders remain in place.

47In closing, I wish to thank counsel for the very high calibre of the materials filed and the submissions made.

J. Di Luca J.

Released: March 6, 2026

CITATION: R. v. Moseley, 2026 ONSC 1369 COURT FILE NO.: CR-24-00016485-00AP DATE: 20260306

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

MICHAEL MOSELEY Defendant

RULING ON SUMMARY CONVICTION APPEAL

J. Di Luca J.

Footnotes

1. 1The maximum sentence is not reserved for the “worst case – worst offender” and may be imposed where supported by a proper application of the applicable sentencing principles, see R. v. S.(K.S.T.), 2008 SCC 62, [2008] 3 S.C.R. 309.