His Majesty the King v. Andrew Plummer, 2026 ONSC 1873

CITATION: R. v. Plummer, 2026 ONSC 1873

COURT FILE NO.: CR-23-0111-00

DATE: 2026-03-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ANDREW PLUMMER

Accused

M. Gardiner & L. Talyor, for the Crown

N. DeBellefeuille, for the Accused

HEARD: March 2, 3 & 6, 2026, Thunder Bay, Ontario

The Honourable Mr. Justice S. J. Wojciechowski

Reasons on Gardiner Application

Introduction

1This application, brought by the Crown, seeks to establish facts which this Court will be asked to consider in the context of an anticipated sentencing hearing for Andrew Plummer (“Mr. Plummer”).

2Mr. Plummer was charged with a number of offences stemming from incidents which occurred on March 7, 2022. Before his trial was scheduled to proceed, Mr. Plummer – with the assistance of his Defence Counsel, Ms. DeBellefeuille – came to an agreement with the Crown and pleaded guilty to a number of the outstanding charges.

3As part of that agreement, an Agreed Statement of Facts was entered as Exhibit 1 to the sentencing hearing, which sets out the facts supporting the guilty plea of Mr. Plummer.

4There were also some additional facts which were not agreed upon by Mr. Plummer, and as such, this application was brought by the Crown in order to adduce evidence in support of those additional facts.

5This decision reflects a consideration of the viva voce evidence presented in support of the Crown’s application, and sets out those facts which have been proven in accordance with the applicable standards.

6The facts which have been determined and set out in this decision may then be used by the Crown and Mr. Plummer in their arguments as to which aggravating or mitigating factors should be considered in this Court’s subsequent ruling as to a just and appropriate sentence responding to Mr. Plummer’s guilty plea.

Background

7On March 7, 2022, Mr. Plummer was involved in a physical altercation with his brother, Andre Lawrence, which resulted in Andre Lawrence being shot approximately 4 times in the stomach, hands, and shoulder.

8Mr. Plummer pleaded guilty to aggravated assault as a result of this altercation, which occurred at 1207 Forest Street, Thunder Bay, Ontario.

9Mr. Plummer then left the scene where Andre Lawrence was shot, and got into a motor vehicle identified as a black Kia Optima belonging to Drew McKenzie (“the Vehicle”). Drew McKenzie (“Ms. McKenzie”) and Mr. Plummer headed eastbound along Highway 11/17 until encountering a roadblock at which point Ms. McKenzie, who was driving, stopped the Vehicle.

10In response to commands from the Ontario Provincial Police (“OPP”) who had set up the roadblock, Ms. McKenzie opened the driver’s side window and dropped the Vehicle’s keys on the roadway. She then exited the Vehicle by using the driver’s side door.

11As Ms. McKenzie was exiting the Vehicle, Mr. Plummer grabbed the keys off the roadway, started the Vehicle, made a U-turn, and headed westbound along Highway 11/17. In doing so, Mr. Plummer drove around a second roadblock which had been set up by the OPP and continued driving.

12Mr. Plummer ultimately drove through and avoided a third OPP roadblock which had been set up on Nuttall Road, and at a fourth roadblock set up at the junction of Highway 582 and Highway 11/17, the Vehicle driven by Mr. Plummer was finally stopped. At that point in time, Mr. Plummer fled on foot into the forest, and after wandering around for approximately 2 hours, Mr. Plummer ventured back onto Highway 11/17 and surrendered to police.

13As a consequence of these events, Mr. Plummer pleaded guilty to failing to stop a motor vehicle as soon as is reasonable in the circumstances while being pursued by police. In addition, he pleaded guilty to dangerous driving.

14As part of the incident involving Mr. Plummer driving around a third roadblock on Nuttall Road, he shot at Staff Sergeant David Moscall (“Staff Sgt. Moscall”) while their vehicles passed by one another. Mr. Plummer pleaded guilty to attempting to murder Staff Sgt. Moscall with his firearm.

15The gun used by Mr. Plummer was a loaded restricted firearm for which Mr. Plummer did not have a licence, the possession of which being another offence to which Mr. Plummer pleaded guilty.

16Finally, there were 44.4 grams of cocaine and other drug paraphernalia found in a subsequent search of the Vehicle. Mr. Plummer pleaded guilty to possession for the purposes of trafficking.

Events Relevant to the Gardiner Hearing

17Within the Gardiner hearing, evidence was led in order to address what occurred at the first roadblock encountered by Mr. Plummer. In addition, the circumstances of the encounter between Mr. Plummer and Staff Sgt. Moscall were explored in the evidence led. Finally, the actions of Mr. Plummer after he exited the forest and surrendered to police were addressed.

First Roadblock

18Staff Sgt. Moscall set up at a roadblock on Highway 11/17, which was the first roadblock the Vehicle encountered.

19The description by Staff Sgt. Moscall of his position indicated that when the Vehicle approached the roadblock, he was standing on the north side of the highway and had a full view of the driver and the front corner panel of the Vehicle. As such, when the Vehicle stopped, he saw that the driver was a woman, who was commanded by officers to exit the Vehicle.

20At the time the Vehicle stopped, Staff Sgt. Moscall indicated that he did not see anyone else in the Vehicle. The woman – Ms. McKenzie – complied with the directions provided by opening the driver’s side door, dropping the car keys on the pavement, and then exiting the Vehicle and standing on the highway.

21It was at that time when Staff Sgt. Moscall realized someone else was in the Vehicle. The evidence of Staff Sgt. Moscall was that he did not know anyone was there until he saw movement within the Vehicle. He stated that he saw Mr. Plummer climb over the seats and get into the driver’s seat, after which Mr. Plummer grabbed the keys off the highway, started the Vehicle, and drove the Vehicle back towards Thunder Bay along Highway 11/17.

22The evidence of Staff Sgt. Moscall saying that he did not know Mr. Plummer was in the vehicle was supported by his assertion that Constable Giguere – who was in a police vehicle following behind the Vehicle as it approached the first roadblock – did not communicate by radio that Mr. Plummer was in the Vehicle. Staff Sgt. Moscall initially understood that Mr. Plummer accompanied Ms. McKenzie in the Vehicle, and while watching the Vehicle approach the roadblock, wondered where he had gone. While trying to mentally come up with a scenario to explain where Mr. Plummer had gone, Staff Sgt. Moscall thought there was only one occupant of the Vehicle until he saw the movement of Mr. Plummer climbing from the backseat.

23On cross examination, Staff Sgt. Moscall confirmed that there was not a lot of space between the top of the front row seats and the Vehicle’s ceiling, and that Mr. Plummer was not a small person. Notwithstanding, he maintained his recollection that movement occurred from the back seat to the front seat, that it took only a few seconds for Mr. Plummer to reposition himself, and that his movement occurred partially over the seat as well as through the middle space existing between the two front seats.

24On the other hand, Staff Sgt. Moscall did not agree that the movement he saw was possibly from the front seat, with Mr. Plummer ducking down in the front seat or reaching into the back seat for something. His recollection was that the entire body of Mr. Plummer moved from the back seat into the front seat, and that this only took a matter of seconds.

Attempted Murder of Staff Sgt. Moscall

25Before Mr. Plummer drove past the third roadblock on Nuttall Road, he was being pursued by Staff Sgt. Moscall.

26Mr. Plummer was driving the Vehicle. Staff Sgt. Moscall was driving his unmarked police vehicle which did not have a roof rack, but instead had internal emergency lights activated.

27At one point during their encounter, Staff Sgt. Moscall testified that the two vehicles passed each other, driver’s door handle to driver’s door handle. According to Staff Sgt. Moscall, as the vehicles passed one another, they were “3 to 4 inches away from exchanging paint”.

28At the time, Mr. Plummer was attempting to drive up Nuttall Road in an effort to turn onto another road and continue fleeing. And at the same time, Staff Sgt. Moscall was driving down Nuttall Road in a direction which would take him to a dead end, requiring him to turn around and resume his pursuit of Mr. Plummer. When the two vehicles passed each other, each was driving in an opposite direction to the other.

29The Crown’s questions to Staff Sgt. Moscall were designed to elicit information on the positioning and use of the firearm in Mr. Plummer’s possession.

30Staff Sgt. Moscall said that when he first saw Mr. Plummer’s firearm, it was resting on the edge of the Vehicle’s window frame, about a third way down the distance of the window frame from the front of the vehicle. As the two vehicles came side to side, Staff Sgt. Moscall described looking down the barrel of the firearm, and in seeing it, knew that he did not have any time to engage Mr. Plummer with his own firearm. Within a split second, both vehicles were window to window, and there was a gun pointing at Staff Sgt. Moscall. All he could do was move his head and attempt to bend down into the opening between the driver’s seat and the passenger’s seat. As he did so, Staff Sgt. Moscall heard the firearm discharge, and felt the muzzle blast and the heat of the round go past his face, ultimately hitting the inside of the police vehicle’s passenger door.

31His evidence was that the time between seeing the firearm and moving his head was less than a second. And on cross examination, Staff Sgt. Moscall confirmed that the first time he saw the firearm was when the vehicles were door handle to door handle, with the firearm discharging hundredths of a second later.

32When asked if he knew when the firearm was situated on the door window frame, whether that was a half second or five seconds before it was discharged, Staff Sgt. Moscall’s response was that he would not have seen the firearm five seconds before the vehicles were side by side.

Surrender to Police

33Sergeant Penfold (“Sgt. Penfold”) provided evidence on what happened when Mr. Plummer surrendered himself to police.

34Approximately 2 hours after Mr. Plummer left the Vehicle and ran into the forest, Sgt. Penfold was driving in a police vehicle with lights activated on the highway. After coming around a corner, he saw an individual approximately 1 kilometre away at the top of a hill. Sgt. Penfold originally thought the individual was another police officer stationed on the highway doing containment on the lookout for Mr. Plummer, who had not yet been located. However, as he approached, Sgt. Penfold realized it was Mr. Plummer that he was approaching.

35Sgt. Penfold testified that when he initially saw the individual, it appeared that Mr. Plummer was walking in circles. His evidence was that he eventually believed it was a male trying to hitchhike. The evidence of Sgt. Penfold continued with content consistent with the Agreed Statement of Facts entered as Exhibit 1.

[Sgt. Penfold] observed an individual in the middle of the eastbound lane of the highway. [Sgt. Penfold] thought it was an officer but then saw an orange or red SUV drive around the person. The person, was later identified as [Mr. Plummer].

As [Sgt. Penfold]’s vehicle came to a stop, [Mr. Plummer] laid face down in the eastbound lane of the highway and dropped a cell phone on the road. He crossed his legs, put his hands behind his head, and said something along the lines of “I give up”. [Mr. Plummer]’s clothing was dirty and wet, and he had snow stuck in between his sock and shoe on his left foot and snow on his sock on his right foot.

36Sgt. Penfold also testified that after stopping his police vehicle in front of Mr. Plummer, he exited his vehicle with his firearm drawn because he knew that Mr. Plummer had used a firearm previously. As Mr. Plummer told Sgt. Penfold that he was surrendering, he also appeared to be speaking to whomever was on his cell phone – which turned out to be Mr. Plummer’s mother – stating that he thought the officer was going to shoot him.

37Sgt. Penfold made it clear to Mr. Plummer that he was not going to shoot him, instructing him to lay still on the pavement and be compliant until additional police backup arrived.

38Shortly after Mr. Plummer was engaged with Sgt. Penfold on the pavement, Constable Trevisan arrived on the scene, and he asked Mr. Plummer for the location of his firearm. Mr. Plummer told him that it was on the shoulder of the highway, and that is where Constable Trevisan found the firearm. Sgt. Penfold stated that the firearm was located a lane’s width away from Mr. Plummer – a distance of approximately 6 to 8 metres – and that at no time during his vehicle’s approach to Mr. Plummer did Sgt. Penfold see the firearm, nor did he see Mr. Plummer throw the firearm towards the shoulder of the highway.

39The relevant issue raised by the Crown in these circumstances was whether or not Mr. Plummer was hitchhiking or attempting to secure a ride in order to continue his efforts to flee and evade the police.

40In asking questions to clarify why Sgt. Penfold thought Mr. Plummer was hitchhiking, he said that while Mr. Plummer was walking in circles in the eastbound lane, he appeared to walk towards a red or orange SUV (“the SUV”) which was traveling easterly along the highway. Sgt. Penfold thought that Mr. Plummer was trying to get out of there and that he wanted to get a ride. Mr. Plummer then walked towards the SUV which caused it to go into the westbound lane of traffic to get around Mr. Plummer.

41When asked how Mr. Plummer approached the SUV, Sgt. Penfold stated that Mr. Plummer was in the eastbound lane, near the shoulder, and walked into the lane towards the passenger side of the SUV. While not entirely sure, Sgt. Penfold estimated that Mr. Plummer got within 2 or 3 feet, or a metre, of the SUV.

42During his cross examination, Sgt. Penfold stated that he did not see Mr. Plummer stick out his hand with his thumb up in a manner which suggested he was hitchhiking. Sgt. Penfold admitted that he did not hear any conversation between Mr. Plummer and the SUV, nor did he see any attempt by Mr. Plummer to open the passenger door of the SUV. Sgt. Penfold simply confirmed that his impression of Mr. Plummer hitchhiking was based upon the fact that after seeing Mr. Plummer walk in circles, he changed direction and walked towards the SUV.

Decision

43Based upon the evidence which was presented through Sgt. Penfold and Staff Sgt. Moscall, I am able to make the following findings.

Hitchhiking and Surrender

44While I accept the evidence of Sgt. Penfold, I do not find that the Crown has established beyond a reasonable doubt that Mr. Plummer was hitchhiking.

45Sgt. Penfold first observed Mr. Plummer from a distance of a kilometre away such that he was mistaken to be a police officer. What he eventually saw was Mr. Plummer walking in circles, and then changing directions and walking towards the SUV. There is no evidence that he was extending his hand and his thumb to suggest he was attempting to secure a ride. There is no evidence as to any verbal exchange between the occupants of the SUV and Mr. Plummer. There is no evidence that Mr. Plummer was waving at the SUV to stop, or that he attempted to impede its progress along the highway so that he could get into the SUV.

46It is possible that he was attempting to get a ride. It is also possible that after spending over two hours in the snow covered forest, without a shoe, that Mr. Plummer was cold and suffering from the effects of exposure and wanted to get into a vehicle and get warm. The evidence led does not overwhelmingly support one version or the other, or any other probable scenarios to explain what Sgt. Penfold saw.

47It is also apparent, on a balance of probabilities, that Mr. Plummer did not have the firearm which he had previously used when he approached the SUV. Sgt. Penfold clearly saw that he was using a cell phone, and that he placed the cell phone on the highway before Mr. Plummer surrendered. Sgt. Penfold did not see Mr. Plummer handle the firearm, and it was eventually found on the shoulder of the highway after Mr. Plummer directed the police officers to its location. As such, before venturing onto the highway, before walking in circles, before walking towards the SUV, and before surrendering, Mr. Plummer had decided to place his firearm on the shoulder of the highway and was not in possession of the firearm during the time period Sgt. Penfold observed his activity.

First Roadblock

48I do not find that beyond a reasonable doubt, Mr. Plummer was in the back seat of the Vehicle at the time that Ms. McKenzie was driving, including when she stopped and exited the Vehicle.

49I accept the evidence of Staff Sgt. Moscall that he did not see Mr. Plummer until he noted movement within the car. However, the evidence does not convince me that beyond a reasonable doubt, Mr. Plummer was hiding in the back seat.

50Staff Sgt. Moscall’s evidence was that he did not know where Mr. Plummer was, but his focus when the Vehicle stopped was on Ms. McKenzie, especially with the issue of the firearm being in play. The events of her tossing the keys and getting out of the Vehicle occurred quickly, including the movement which Staff Sgt. Moscall eventually noted behind Ms. McKenzie. There was no opportunity for any officer to examine the back seat of the Vehicle, and in the seconds it took for Ms. McKenzie to exit the Vehicle and for Mr. Plummer to grab the keys and turn the Vehicle around, the focus of the officers was on the action which they could see happening in front of them.

51The configuration of the seats in the Vehicle were described to leave little room for Mr. Plummer to move through. Staff Sgt. Moscall twice described it taking only seconds for Mr. Plummer to get through this space, and admitted that Mr. Plummer was a large man. I accept that Mr. Plummer was only noticed in the background to Ms. McKenzie when he began to move. At the time, Staff Sgt. Moscall’s attention was fixed on Ms. McKenzie and not Mr. Plummer. With it only taking seconds for Mr. Plummer to allegedly get from the back seat to the front seat, and seconds later be able to exit the Vehicle to secure the car keys, the physical layout of the Vehicle would not facilitate these movements in a period of only seconds.

52Therefore, the evidence is insufficient to find beyond a reasonable doubt that Mr. Plummer climbed into the front seat from the back seat of the Vehicle at the time it stopped at the first roadblock.

Attempted Murder of Staff Sgt. Moscall

53Again, I accept the evidence of Staff Sgt. Moscall, and determine beyond a reasonable doubt that he felt the heat of the muzzle blast and the bullet in front of his face after Mr. Plummer’s firearm was discharged.

54I also accept Staff Sgt. Moscall’s evidence that, within a period of time measured in less than a second, as both the Vehicle and Staff Sgt. Moscall’s police vehicle were inches away from exchanging paint, the firearm of Mr. Plummer was resting on his open window frame approximately one third back from the front of the Vehicle.

55While it is likely that the firearm was in a similar position 2 seconds before it was discharged, there was no evidence presented which establishes beyond a reasonable doubt the firearm’s location at 3, 4, 5 or more seconds beforehand.

The Hon. Mr. Justice S. J. Wojciechowski

Released: March 26, 2026

CITATION: R. v. Plummer, 2026 ONSC 1873