



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2017 ONCA 217

DATE: 20170316

DOCKET: C58614

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Moore

Appellant

Mark Moore, by videoconference

Amy Ohler, duty counsel

Michael Fawcett, for the respondent

Heard and released orally: March 8, 2017

On appeal from the conviction entered on February 3, 2014
    and the sentence imposed on March 26, 2014 by Justice Ian MacDonnell of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of a number of offences arising out of a
    robbery at a jewellery store. He advances three grounds of appeal on conviction
    and argues that the sentence imposed was too long.

[2]

First, he argues that the verdict is unreasonable as the evidence at
    trial was equally consistent with the appellant being a fence as opposed to one
    of the robbers.

[3]

We disagree. The trial judge specifically considered this theory, which
    was advanced by the appellant at trial. He set out 14 items of circumstantial
    evidence that pointed to the appellant having perpetrated the robbery. As the
    Crown submits, several of those items are not consistent with the appellants
    role being limited to that of a fence. As explained by the trial judge:

when all of the circumstances are considered together it is
    manifest that he was more than a fence. Considered cumulatively and as a whole,
    the circumstantial evidence admits of only one rational inference, namely that
    Mr. Moore was one of the two masked men who committed the Arax robbery.

[4]

The second error advanced by the appellant is that the trial judge
    failed to recognize that Mr. Khan was an unsavoury witness deserving of a
Vetrovec
caution.

[5]

We disagree. As his reasons show, the trial judge was alert to Mr.
    Khans background and the inconsistencies in and other concerns with Mr. Khans
    testimony. In his review of Mr. Khans evidence, the trial judge in effect carried
    out the
Vetrovec
analysis, including looking for confirmatory
    evidence. In these circumstances, in this judge alone trial, a formal
Vetrovec
caution was not, in our view, required.

[6]

The third error alleged by the appellant is that the trial judge
    misapprehended the evidence in several respects.

[7]

We do not give effect to this submission. Our role is not to retry the
    case. In his comprehensive reasons, the trial judge properly dealt with the areas
    of concern raised by the appellant on appeal. He was aware of the
    inconsistencies and explained the basis of his factual findings. We see no
    error in these findings.

[8]

The appellant places particular emphasis on the trial judges findings
    concerning the appellants sweater on which a logo appears in the corner. A
    comparable sweater was seen to be worn by one of the perpetrators of the
    robbery and is shown on the video of the robbery. The trial judge was well
    aware of the uncertainties concerning the colour of the sweater. However, the
    importance of the sweater rested not on the colour, but rather on the steps
    taken by the appellant to dispose of it immediately upon learning of the arrest
    of the other two participants in the robbery. We see no error in the trial
    judges treatment of this evidence.

[9]

With respect to sentence, in our view, the sentence of 12 years was
    entirely fit in the circumstances of this case. Specifically, we see no error
    in how the trial judge dealt with the appellants involvement in the shooting
    of Mr. Khan when fashioning an appropriate sentence.

[10]

For these reasons, the conviction appeal is dismissed, leave to appeal
    sentence is granted, but the sentence appeal is dismissed.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


