



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moreira, 2021 ONCA 507

DATE: 20210714

DOCKET: C67785

Miller, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Moreira

Appellant

Margaret Bojanowska, for the appellant

Michael Fawcett, for the respondent

Heard: June 18, 2021 by video conference

On appeal from the sentence imposed on
    April 29, 2019 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, with
    reasons reported at 2019 ONSC 2648.

Paciocco J.A.:

OVERVIEW

[1]

Zaher (Zack) Noureddine died after being
    brutally beaten on December 29, 2015. A jury convicted Matthew Moreira of
    manslaughter in Mr. Noureddines death, and of robbing Mr. Noureddines
    companion, Mitchell Conery, during the same incident.

[2]

The sentencing judge imposed a global sentence
    on Mr. Moreira of 13 years imprisonment: 12 years for the manslaughter and 1 year
    consecutive for the robbery. As Mr. Moreira had already served the equivalent
    of 4 years and 7 months in pre-sentence custody, the sentencing judge imposed a
    net sentence of 8 years and 5 months.

[3]

Mr. Moreira seeks leave to appeal his sentence
    and raises numerous grounds of complaint. Most significantly, Mr. Moreira
    argues that the sentencing judge, who also presided over the jury trial in this
    case, erred in determining the factual basis for Mr. Moreiras manslaughter
    conviction and in assessing his degree of fault.

[4]

For reasons that follow, I would grant leave to
    Mr. Moreira to appeal from sentence and allow his sentence appeal on this
    ground. I would also accept his ground of appeal that the sentencing judge
    materially misapprehended the evidence in considering whether to give him credit
    for harsh conditions of pre-sentence custody, pursuant to this courts decision
    in
R. v. Duncan
, 2016 ONCA 754, [2016] O.J. No. 5255.

[5]

Based on these two errors, I would set aside the
    12-year global sentence imposed on Mr. Moreira for the offence of manslaughter.
    After rectifying both errors, I would substitute a global sentence of 10 years.
    I would not interfere with the one year of consecutive imprisonment for the
    robbery. After credit for pre-sentence custody, I would therefore substitute a
    net sentence for the two offences of 6 years and 5 months.

MATERIAL FACTS

(a)

The Attack and Key Trial Evidence

[6]

Around midnight on December 29, 2015, Mr.
    Noureddine and Mr. Conery were accosted by William Cummins, Patrick Smith, and
    Mr. Moreira. Both Mr. Noureddine and Mr. Conery were attacked in the ensuing
    altercation. Tragically, Mr. Noureddine died as the result of a savage beating.
    He suffered a ruptured artery in his neck, which caused a brain bleed that led
    to his death. Mr. Cummins, Mr. Smith, and Mr. Moreira were subsequently
    apprehended and charged.

[7]

Prior to their joint trial, Mr. Cummins fired
    his lawyer. As a result, his trial was delayed. The trial of Mr. Smith and Mr.
    Moreira went ahead. They were tried jointly by a jury on charges of first-degree
    murder in the death of Mr. Noureddine, contrary to s. 235(1) of the
Criminal

Code
, R.S.C. 1985, c. C-46, and with robbery, arising from the
    assault on Mr. Conery, contrary to s. 343(c) of the
Criminal

Code
.

[8]

During the trial, Mr. Conery testified that he
    and Mr. Noureddine had been at a bar on the night in question. After leaving the
    bar, they were walking to Mr. Conerys car when three men emerged from an
    alleyway and moved towards them. Mr. Conery said that, without warning or
    provocation, he was immediately sucker punched and knocked to the ground by
    one of the three men.

[9]

Mr. Conery and other witnesses to the incident
    confirmed that Mr. Noureddine was also set upon. They testified that he too was
    knocked to the ground, and then kicked repeatedly in the head. One witness likened
    the force of the kicking to Mr. Noureddines head to someone trying to kick a
    soccer ball across a field.

[10]

Several witnesses testified that only two of the
    three men took part in the attack on Mr. Noureddine. It is not contested that
    those witnesses were referring to Mr. Cummins and Mr. Smith, who were identified
    based on their large stature relative to the third man, Mr. Moreira. Indeed, on
    Mr. Conerys evidence, only the two larger men participated in the attack on
    Mr. Noureddine. Mr. Conery testified that during the attack on Mr. Noureddine, the
    smaller man, Mr. Moreira, tapped Mr. Conery with his foot and told him that if
    he handed over his wallet, the attack would end.

[11]

By contrast, only one witness, Michael Bruton,
    testified to having seen three men attacking Mr. Noureddine.

(b)

The Jury Charge and the Verdicts

[12]

While presiding over the trial, the sentencing judge
    instructed the jury that they could find Mr. Moreira guilty of first-degree
    murder, second-degree murder, or manslaughter. It is unnecessary to say more
    about the jury charge relating to first-degree murder.

[13]

The sentencing judge instructed the jury that
    there were three possible bases for convicting Mr. Moreira of second-degree
    murder: (1) through participation in the physical assault on Mr. Noureddine with
    the requisite intent for murder; (2) by aiding Mr. Smith in committing the
    offence of second-degree murder knowing that Mr. Smith had the requisite intent
    for murder; or (3) by common design, through agreement with Mr. Smith to
    participate in robbing Mr. Noureddine, knowing that Mr. Smith would probably
    cause the death of Mr. Noureddine with the requisite intent to commit murder.

[14]

The sentencing judge instructed the jury on two pathways
    to convicting Mr. Moreira of manslaughter: (1) through participation in the
    physical assault, without the requisite intent for murder; or (2) by aiding Mr.
    Smith in committing the offence of murder or manslaughter knowing that Mr.
    Smith would commit the unlawful act of assaulting Mr. Noureddine in a manner
    that would put Mr. Noureddine at risk of bodily harm but Mr. Moreira did not
    foresee that he would cause the death of Mr. Noureddine.

[15]

The sentencing judge did not instruct the jury
    directly on the findings they could make relating to the aid or encouragement that
    Mr. Moreira was alleged to have given Mr. Smith. However, in summarizing the
    evidence, he referred to Mr. Conerys testimony about Mr. Cummins, Mr. Smith,
    and Mr. Moreira walking in a cluster and moving in a diagonal direction in
    front of [Mr. Conery and Mr. Noureddine], immediately before Mr. Conery was
    sucker punched and knocked to the ground.

[16]

The sentencing judge also summarized the Crown
    theory at trial that, even if the jury had a reasonable doubt that Mr. Moreira
    physically participated in the attack, the evidence showed that Mr. Moreira nonetheless
    supported [Mr.] Cummins and [Mr.] Smith. The sentencing judge instructed the
    jury that the Crowns theory of support or aid was that Mr. Moreiras comment
    to Mr. Conery, give me your wallet and its all over, was an admission that
    the death of Mr. Noureddine and the robbery of Mr. Conery are clearly
    connected. In the trial Crowns submission, this admission effectively made Mr.
    Moreira a party to the killing of Mr. Noureddine by robbing Mr. Conery.

[17]

The jury returned verdicts acquitting Mr. Smith
    and Mr. Moreira of the charged offence of first-degree murder in the death of
    Mr. Noureddine but convicting them both of included homicide offences. Of
    importance to this appeal, their homicide convictions differed; Mr. Smith was
    convicted of second-degree murder, but Mr. Moreira was convicted of
    manslaughter. Also noteworthy is that only Mr. Moreira was convicted of robbing
    Mr. Conery. Mr. Smith was convicted of assaulting Mr. Conery but acquitted of
    robbing him.

(c)

Sentencing

[18]

In light of the mandatory minimum sentence for
    second-degree murder, Mr. Smiths sentencing was straightforward. He was given
    the minimum sentence of life imprisonment, and the sentencing judge set his
    parole ineligibility at 12 years.

[19]

Mr. Moreiras sentencing was more complex. A
    jury gives a general verdict without reasons and, as explained, there were
    different legal pathways to finding Mr. Moreira guilty of manslaughter given to
    this jury for consideration. It therefore fell to the sentencing judge to
    resolve the factual basis for Mr. Moreiras conviction.

The factual basis for Mr. Moreiras manslaughter
    verdict

[20]

During sentencing submissions, the factual basis
    for Mr. Moreiras manslaughter verdict was discussed. The Crown submitted that
    Mr. Moreira had been convicted of manslaughter as a principal who participated
    in the illegal attack that caused Mr. Noureddines death, but that he had played
    a different role than his associates, Mr. Cummins and Mr. Smith, who had beat
    Mr. Noureddine. The Crowns theory was that Mr. Moreira, who was present
    throughout the altercation, asserted control over the attack to make sure that Mr.
    Conery and Mr. Noureddine would be beaten so that they could be successfully
    robbed.

[21]

Mr. Moreiras defence counsel argued that the
    jury must have convicted Mr. Moreira as a party who aided the offence and not
    as a principal, because the bulk of the evidence pointed only to Mr. Cummins
    and Mr. Smith as having assaulted Mr. Noureddine.

[22]

The sentencing judge rejected both parties submissions
    regarding the basis for the verdict. He disagreed expressly with defence
    counsels submission, and in doing so offered his own conclusions about the
    factual basis for Mr. Moreiras manslaughter conviction. After describing the
    defence submission, the sentencing judge said as follows:

I disagree and find that the evidence at trial
    supports Mr. Moreiras role as principal or aider in the factual matrix.

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.

In my view, the difference is immaterial:
    whichever route is accepted, Mr. Moreira was equally culpable in Mr.
    Noureddines 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.

[23]

These same findings also disclose the sentencing
    judges rejection of the factual foundation for the manslaughter conviction
    that the Crown had advanced. Specifically, the sentencing judge stopped short
    of finding that Mr. Moreira asserted control over the attack, finding only that
    at a minimum, [Mr. Moreira]
believed
he had the power and authority to
    terminate [the attack] (emphasis added).

[24]

The subjective belief of an offender cannot
    constitute an act of aiding or abetting or satisfy the Crown theory of the
    factual basis for the conviction. As I interpret the sentencing judges
    comments, he therefore concluded that the factual basis for the jurys
    manslaughter conviction was either that Mr. Moreira had participated directly
    in the physical assault leading to Mr. Noureddines death, or that he had aided
    Mr. Smith and Mr. Cummins, providing assistance in some way or encouraging the
    attack.

Aggravating factors and range of sentence

[25]

The sentencing judge then went on to identify a
    number of aggravated features in the case, including that it was a
    pre-meditated, unprovoked, brutal assault on two unsuspecting, defenceless
    strangers outnumbered by their assailants, in which numerous blows of
    considerable force were delivered to Mr. Noureddines head, one of the most
    vulnerable parts of the body.

[26]

The sentencing judge further noted that, given Mr.
    Smiths acquittal on the robbery charge, the jury had necessarily found that he
    was not a party to Mr. Moreiras demand for Mr. Conerys wallet. This left the
    purpose of the joint attack unexplained, and therefore an apparently random
    and senseless killing. This, of course, was further repudiation of the Crowns
    alleged basis for the manslaughter conviction.

[27]

The sentencing judge then commented on an
    elevator security camera video captured shortly after the incident (the
    elevator video), calling it the most disturbing evidence in this case. He described
    the elevator video as follows:

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.

[28]

The sentencing judge found that none of the men
    knew at the time of their celebration that Mr. Noureddine had died, but knew he
    had been begging for mercy as he was repeatedly kicked.

[29]

The sentencing judge also described the powerful
    victim impact statements that had been presented.

[30]

After reviewing several authorities advanced by
    the parties, the sentencing judge decided that the range of the sentence for
    the offence of manslaughter in this case was 10 to 15 years.

Mr. Moreiras personal circumstances

[31]

Before sentencing Mr. Moreira, the sentencing judge
    considered his personal circumstances. At the time of sentencing, he noted that
    the 35-year-old Mr. Moreira had an 8-year-old daughter. He found that Mr.
    Moreira had a troubled background but that he now enjoyed the support of his
    family and life-partner, whom he met in 2016, after the attack on Mr.
    Noureddine and Mr. Conery.

[32]

The sentencing judge also noted that Mr. Moreira
    had filed character references from family, friends, and fellow inmates, and
    that since being incarcerated for this offence, [Mr. Moreira] has completed a
    number of educational courses
although, as the Crown points out, the courses
    were taken and completed since his conviction
 (emphasis added). The
    sentencing judge subsequently mentioned Mr. Moreiras rehabilitative efforts
    while incarcerated, saying, He appears to have taken educational courses
    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 (emphasis added).

[33]

Notwithstanding these positive signs, the
    sentencing judge commented that the 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. Moreiras criminal record and history of
    continually breaching probation orders. Mr. Moreiras lengthy criminal record
    included several convictions for violence, and he was on probation at the time
    of the offence. The sentencing judge ultimately concluded that Mr. Moreiras
    prospects for rehabilitation are poor, given this history.

Mr. Moreiras written statement

[34]

Of importance, the sentencing judge also expressed
    disapproval of the written statement that Mr. Moreira read out in court during
    his sentencing hearing. The sentencing judge found that the statement was not
    an expression of remorse, but, in fact, an expression of regret of the
    situation he now finds himself in after being convicted.... The statement was
    all about Mr. Moreira and his loss and inability to see his daughter.

[35]

The sentencing judge therefore found that remorse
    was not a mitigating factor in Mr. Moreiras case.

Duncan
credit and imposition of sentence

[36]

Before apportioning Mr. Moreiras sentence, the
    sentencing judge noted that the Crown sought 14 years in custody, comprised of
    10 to 12 years for manslaughter and 2 years for robbery. On the other hand, he noted
    that the defence sought a 5-year sentence for manslaughter, and a concurrent
    sentence of 18 months to 2 years imprisonment for the robbery.

[37]

At the outset of his reasons, the sentencing
    judge explained that he would first determine a suitable global sentence and
    then apportion the quantity of time between the two offences. Applying this
    approach, the sentencing judge ultimately sentenced Mr. Moreira to 12 years imprisonment
    for manslaughter and 1 year consecutive imprisonment for the robbery. During
    sentencing submissions, the sentencing judge commented, correctly, that the
    robbery of Mr. Conery could not be an aggravating factor in determining Mr.
    Moreiras manslaughter sentence where a consecutive sentence is imposed.

[38]

The sentencing judge declined to give credit to
    Mr. Moreira, pursuant to
Duncan
, for harsh conditions of pre-sentence
    custody. In support of this decision, the sentencing judge explained that he
    did not have evidence of the impact of pre-sentence custodial conditions on Mr.
    Moreira, noting that findings of misconduct had been made against Mr. Moreira during
    his time in custody.

[39]

Accordingly, after allocating the equivalent of
    4 years and 7 months for the pre-sentence custody Mr. Moreira had served to
    date, the sentencing judge imposed a net sentence of 8 years and 5 months.

THE GROUNDS OF APPEAL

[40]

Mr. Moreira raises numerous grounds of appeal.
    In summary, he contends that the sentencing judge:

(a)

erred in determining the factual basis for Mr. Moreiras conviction,
    and in assessing Mr. Moreiras degree of fault;

(b)

misapprehended the evidence of the elevator video;

(c)

misapprehended the evidence in assessing Mr. Moreiras prospects of
    rehabilitation;

(d)

erred in imposing consecutive sentences for manslaughter and robbery;

(e)

erred in not awarding Mr. Moreira
Duncan

credit;

(f)

erred in failing to consider the case of
R. v. Triolo
, 2017
    ONSC 4726, despite it being advanced by Mr. Moreiras defence counsel, and

(g)

imposed a sentence that was harsh and excessive.

[41]

As I will explain below, I would accept grounds
    of appeal (a) and (e). Those errors affected the sentence. This makes ground of
    appeal (g) moot, so I will not address it further. Similarly, I will say no more
    about ground of appeal (f), since, in substance, it is linked to moot ground of
    appeal (g); the unstated premise of ground of appeal (g) is that, had the
    sentencing judge considered the
Triolo

decision, he would have
    imposed a fit sentence, rather than a harsh and excessive one. I would reject the
    remaining grounds of appeal.

ANALYSIS

(a)

The Basis for the Manslaughter Conviction and
    Degree of Fault

[42]

In my view, the sentencing judge erred in
    determining the factual basis for Mr. Moreiras conviction and in identifying
    his level of culpability.

[43]

In
R. v. M. (C.A.)
, [1996] 1 S.C.R.
    500, at para. 73, Lamer C.J. commented that, In our system of justice, the
    ultimate protection against excessive criminal punishment lies within a sentencing
    judges overriding duty to fashion a just and appropriate punishment which is
    proportional to the overall culpability of the offender. To achieve this
    objective, the quantum of sentence imposed should be broadly commensurate with
    the gravity of the offence committed and the moral blameworthiness of the
    offender:
R. v. M. (C.A.)
, at para. 40.

[44]

There is a wide range of culpable acts of
    variable gravity and many degrees of moral fault known to the criminal law. In light
    of Lamer C.J.s guidance, to make the kind of carefully calibrated assessment
    required to determine a proportional sentence, a sentencing judge must therefore
    identify, with some precision, the criminal act or omission of the offender, as
    well as their morally culpable state of mind.

[45]

In a jury trial, the factual findings required
    to identify a proportional sentence may not be evident, as jurors give general
    verdicts without elaborating on the precise findings they have made. To assist
    in overcoming this challenge, s. 724(2) of the
Criminal

Code
applies to fact-finding for the purposes of sentencing in a jury trial, once the
    jury has rendered its general verdict. Section 724(2) provides as follows:

Where the court is composed of a
    judge and jury, the court

(a) shall accept as proven all
    facts, express or implied, that are essential to the jurys verdict of guilty;
    and

(b) may find any other relevant fact
    that was disclosed by evidence at the trial to be proven, or hear evidence
    presented by either party with respect to that fact.

[46]

In
R. v. Ferguson
, 2008 SCC 6, [2008] 1
    S.C.R. 96, at paras. 17-18, McLachlin C.J. articulated two principles governing
    the task of a sentencing judge as contemplated in s. 724(2):

First, the sentencing judge is bound by the
    express and implied factual implications of the jurys verdict:
R. v.
    Brown
, [1991] 2 S.C.R. 518, at p. 523. The sentencing judge shall accept
    as proven all facts, express or implied, that are essential to the jurys
    verdict of guilty (
Criminal

Code
, s. 724(2)(a)), and
    must not accept as fact any evidence consistent only with a verdict rejected by
    the jury:
Brown; R. v. Braun
(1995), 95 C.C.C. (3d) 443 (Man. C.A.).

Second,
when the factual implications of
    the jurys verdict are ambiguous, the sentencing judge should not attempt to
    follow the logical process of the jury, but should come to his or her own
    independent determination of the relevant facts
:
Brown; R. v. Fiqia
,
    (1994), 162 A.R. 117 (C.A.).
In so doing, the sentencing judge may find any
    other relevant fact that was disclosed by evidence at the trial to be proven
(s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the
    sentencing judge must be convinced of the existence of that fact or conviction
    beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing
    judge must be persuaded on a balance of probabilities
It follows from the
    purpose of the exercise that the sentencing judge should find only those facts
    necessary to permit the proper sentence to be imposed in the case at hand. The
    judge should first ask what the issues on sentencing are, and then find such
    facts as are necessary to deal with those issues
. [Emphasis added.]

[47]

In view of these governing principles, a judge
    tasked with sentencing an offender based on a jury verdict must attempt to
    identify the express or implied factual implications of the verdict on material
    issues. If those factual implications are ambiguous or unclear, the sentencing
    judge must make their own determination of the relevant facts, but must not
    arrive at findings inconsistent with those necessary to the jury verdicts
    rendered: see e.g.,
R. v. L.M.
, 2014 ONCA 640, 122 O.R. (3d) 257, at
    paras. 48-51.

[48]

In Mr. Moreiras case, the sentencing judge
    concluded that the jurys pathway to conviction was ambiguous. Indeed, it was based
    on the finding that Mr. Moreira either (a) participated in the physical assault
    on Mr. Noureddine, or (b) aided or encouraged Mr. Smith in the fatal attack on
    Mr. Noureddine. The sentencing judge never resolved the ambiguity he
    identified. Instead, he concluded that the difference is immaterial. In my
    view, his approach was problematic, and in error, for several reasons. I will
    explain each reason in turn.

The sentencing
    judge erred by failing to make the requisite factual findings

[49]

First, the sentencing judge erred in determining
    Mr. Moreiras sentence based on his conclusions about what the jury
may have
    found
.

[50]

Section 724(2) of the
Code
and the
    decision in
Ferguson

reflect an expectation that offenders will
    be sentenced based on factual determinations, not contingencies. In my view, it
    is therefore an error to sentence an offender based on what he
could
have been found to have done, rather than on what he
has
been found to
    have done. If the sentencing judge was correct in determining that the specific
    factual foundation for the jurys conviction could not be identified, he should
    have made his own factual determination. I would find that he erred by not
    doing so.

The sentencing
    judge erred in assessing Mr. Moreiras role in the attack

[51]

Second, even if it had been available to the
    sentencing judge to sentence Mr. Moreira without finally resolving the nature
    of his involvement, the sentencing judge erred when inferring that the jury may
    have convicted Mr. Moreira as a participant, and therefore a principal, in the
    physical assault leading to Mr. Noureddines death.

[52]

Not even the Crown supported the participant path
    to conviction during sentencing submissions, and with good reason. When the
    relative verdicts against Mr. Moreira and Mr. Smith are examined together, as
    they should have been, it is not implicit, nor even probable, that the jury
    convicted Mr. Moreira as a principal. Indeed, the prospect that the jury did so
    is extremely remote. I will explain.

[53]

The jury convicted Mr. Smith of second-degree
    murder because Mr. Smith admitted that he had participated in the physical
    attack on Mr. Noureddine, an attack which was so brutal that Mr. Smith must
    have either meant to kill Mr. Noureddine, or to cause him bodily harm that Mr.
    Smith knew was likely to cause death and was reckless as to whether death
    ensued. Had the jury found that Mr. Moreira had also participated in the
    physical assault, the same inference arising from the nature of that attack would
    have followed, and Mr. Moreira would almost certainly have been convicted of
    second-degree murder, not manslaughter.

[54]

As such, upon finding that both Mr. Smith and
    Mr. Moreira had participated in the physical assault on Mr. Noureddine, the
    only plausible way that the jury could have found Mr. Smith guilty of
    second-degree murder and Mr. Moreira guilty of manslaughter would be if the
    jury had rejected Mr. Smiths intoxication defence but accepted Mr. Moreiras
    intoxication defence. It is evident that the sentencing judge did not consider
    this to be what the jury had decided, as he did not sentence Mr. Moreira on the
    premise that he was intoxicated when his crimes occurred.

[55]

Simply put, it was not at all implicit that
    the jury may have convicted Mr. Moreira of manslaughter as a participant. The
    sentencing judge failed to recognize this because he did not consider the
    impact of the verdict against Mr. Smith in determining whether Mr. Moreiras
    manslaughter conviction was linked to a jury finding that he had participated
    directly in the physical assault.

[56]

In sum, the sentencing judges conclusion that
    it was implicit in the jury verdict that Mr. Moreira may have been convicted as
    a principal who participated in the assault was arguably in error, and it was
    certainly arrived at in error, as his analysis was incomplete.

The sentencing
    judge erred by failing to identify the aid Mr. Moreira provided

[57]

Third, even if it had been available to the
    sentencing judge to sentence Mr. Moreira without finally resolving the nature
    of his involvement, the sentencing judge erred by failing to resolve the
    precise assistance that Mr. Moreira provided in the attack on Mr. Noureddine.

[58]

A jury cannot convict an accused person as an
    aider based on a generic finding that they played some undefined part in the
    crime charged. Nor can a proportional sentence be identified without defining
    the act of aid or of encouragement that was provided. Yet, in his reasons for
    sentence, the sentencing judge said that the jury might have found that Mr.
    Moreira was an aider or an abettor,
providing assistance in some way or
    encouraging the attack
 (emphasis added). The sentencing judges subsequent
    elaboration provides no support for this statement. Recall that he said as
    follows:

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.

[59]

As I have explained, the sentencing judges
    finding about Mr. Moreiras state of belief is not an act of aiding or
    assistance; it is a subjective state of mind. What the sentencing judge did
    find, as he was entitled to find, was that Mr. Moreiras demand to Mr. Conery,
    give me your wallet and this will end, was an admission by Mr. Moreira that
    he was part of the attack on Mr. Noureddine. But what part did he play? The
    sentencing judge did not attempt to resolve this question. I would find that failing
    to do so was an error.

[60]

In my view, had the sentencing judge undertaken
    the requisite close and precise analysis of the jury verdict, he could have
    identified the implicit basis upon which the jury had found Mr. Moreira guilty
    of manslaughter. Quite clearly, by acquitting Mr. Smith of robbery, the jury
    necessarily rejected the theory of aiding that the Crown advanced at trial, namely,
    that the robbery and the attack were linked such that Mr. Moreiras demand for
    Mr. Conerys wallet aided in the attack on Mr. Noureddine.

[61]

The only remaining viable theory in play, given
    the evidence, the Crown submissions, and the jury charge, was that Mr. Moreira
    aided or encouraged the assault that caused Mr. Noureddines death by joining
    Mr. Cummins and Mr. Smith in moving in a diagonal direction in front of [Mr.
    Conery and Mr. Noureddine], so that Mr. Noureddine could be assaulted. The
    sentencing judge was alive to this theory during sentencing submissions, but
    unfortunately never alluded to it in his reasons for sentence.

[62]

Simply put, the sentencing judge either erred in
    sentencing Mr. Moreira on the basis that the jury may have convicted him as an
    aider, without resolving the nature of the aid or encouragement provided, or he
    erred by failing to give sufficient reasons that could reveal the aiding theory
    that he was relying upon in sentencing Mr. Moreira.

The sentencing
    judge erred in finding Mr. Moreira equally culpable

[63]

Finally, in my view the sentencing judge erred in
    concluding that it was unnecessary to resolve the factual basis for Mr.
    Moreiras manslaughter conviction because he would have been equally culpable,
    whether sentenced as a principal who participated in the physical assault on
    Mr. Noureddine, or as an aider.

[64]

In short, even leaving aside the other errors I
    have identified (each of which, on their own, would have precluded this line of
    reasoning) the culpability that Mr. Moreira would bear if convicted of aiding
    manslaughter would be less than he would bear if convicted of participating
    physically in the brutal assault on Mr. Noureddine. To be clear, I am not
    suggesting that an aider can never be as culpable as the principal perpetrator.
    The point is that, on this record, the finding of aiding against Mr. Moreira
    implicit in the jury verdict does not give rise to equal culpability when
    compared to a finding, if it were available, that Mr. Moreira had participated
    in the physical assault on Mr. Noureddine.

[65]

As I have explained, the available basis for finding
    that Mr. Moreira aided or encouraged the attack on Mr. Noureddine is that he
    helped Mr. Cummins and Mr. Smith intercept the two victims so that they could
    be assaulted. Of note, this act of aiding or encouraging occurred at the outset
    of the attack, before the physical assault was underway. There was no basis on
    the evidence for inferring that, when he gave this aid, Mr. Moreira would have
    been aware that such brutal force would be used by his two associates. Indeed,
    by acquitting Mr. Moreira of aiding in Mr. Noureddines murder, the jury
    foreclosed any suggestion that Mr. Moreira knew when he aided or encouraged his
    associates that they would exercise force that was likely to cause death.

[66]

There can be no doubt that Mr. Moreira bears a
    high level of culpability for aiding a planned, concerted, and unprovoked
    assault on two innocent men. However, as a matter of principle, his level of
    culpability is less than it would have been if he had joined directly in the gratuitous
    punching, kicking, and stomping of a defenceless Mr. Noureddine, even as Mr.
    Noureddine begged for his attackers to stop.

Conclusion on ground (a)

[67]

In sum, I would find that the sentencing judge
    erred in determining the factual basis for Mr. Moreiras conviction, and in
    assessing Mr. Moreiras degree of fault.

(b)

The Elevator Video

[68]

The sentencing judge considered the elevator
    video to be a significant aggravating factor in relation to both Mr. Moreira
    and Mr. Smith, calling it the most disturbing evidence in the case. He
    concluded that the elevator video depicted Mr. Moreira grinning with apparent
    approval as Mr. Cummins and Mr. Smith re-enacted their attack on Mr. Noureddine.
    The sentencing judge also found that the video showed Mr. Moreira, Mr. Cummins,
    and Mr. Smith leaving the elevator in a triumphalist fashion, seemingly well
    pleased at their handiwork.

[69]

Mr. Moreira argues that this is not a reasonable
    interpretation of his demeanour and conduct in the elevator video. He urges
    that the sentencing judge erred in making the findings he did.

[70]

I would not give effect to this ground of
    appeal. Others may not have interpreted Mr. Moreiras demeanour and actions in
    the elevator video as the sentencing judge did, but this was his determination
    to make and it is owed deference. I see no basis for interfering.

(c)

Mr. Moreiras Remorse and Prospects for
    Rehabilitation

[71]

I would also reject Mr. Moreiras ground of
    appeal regarding the sentencing judges alleged misapprehensions of evidence
    relevant to potential mitigating factors.

[72]

First, I do not accept that the sentencing judge
    erred regarding Mr. Moreiras statement during the sentencing proceedings. On
    the evidence, it was open to the sentencing judge to find that Mr. Moreira was not
    truly remorseful. I do not agree with Mr. Moreira that the only reasonable
    interpretation of his statement was that it expressed genuine remorse for his
    crimes. In that statement, Mr. Moreira expressed sorrow for what had happened
    to Mr. Noureddine, for being there when this happened, for not intervening,
    and for doing [his] own foolishness in robbing Mr. Conery. Crucially, Mr.
    Moreira did not acknowledge his role in the attack on Mr. Noureddine, nor
    apologize for it. Moreover, the written statement was heavily weighted toward identifying
    the impact of the events and the prosecution upon Mr. Moreira himself. I see no
    basis for interfering with the sentencing judges treatment of Mr. Moreiras
    written statement.

[73]

Second, I would reject Mr. Moreiras submission
    that the sentencing judge materially misapprehended the timing of his
    pre-sentence educational courses. Assuming, without deciding, that the sentencing
    judge erred in his findings relating to the courses Mr. Moreira took while in
    custody, any such error would be insignificant. At worst, the sentencing judge was
    mistaken on one occasion, but later got it right on the same point. As well, the
    timing of the coursework was not a central feature in the sentencing judges
    reasoning. As such, even if it could be said that he misapprehended the
    evidence, no miscarriage of justice occurred.

[74]

In all the circumstances, particularly given the
    absence of remorse, Mr. Moreiras lengthy criminal record, and his mature age,
    the sentencing judge was entitled to conclude that Mr. Moreiras prospects of
    rehabilitation are poor, notwithstanding his family support and his
    pre-sentence rehabilitative efforts.

(d)

Consecutive Sentences

[75]

Nor, in my view, did the sentencing judge err in
    imposing consecutive sentences for the robbery of Mr. Conery and the
    manslaughter of Mr. Noureddine. Those acts constituted separate crimes
    committed against different victims. Moreover, the sentencing judge made clear
    that he had determined Mr. Moreiras sentence by arriving at what he considered
    to be a fit global sentence, and then apportioning the quantity of time between
    the two offences.

[76]

I see no merit in this ground of appeal.

(e)

The
Duncan
Credit

[77]

Next, Mr. Moreira argues that the sentencing
    judge erred in denying him
Duncan

credit for the harsh
    conditions of his pre-sentence custody. Specifically, he contends that the
    sentencing judge erred in concluding that he had no evidence as to the effect
    of [the conditions at the Toronto South Detention Centre] and how they impacted
    Mr. Moreira. Mr. Moreira contends that there was such evidence on the record,
    and therefore that the sentencing judges decision not to give him
Duncan
credit was in error.

[78]

I agree with Mr. Moreira on this point. The
    evidence from Mr. Moreiras life partner  that on numerous occasions her scheduled
    visits to the detention centre were cancelled or cut short  provided
    circumstantial evidence of the effect of lockdowns on Mr. Moreira. Moreover,
    there were medical records before the sentencing judge supporting Mr. Moreiras
    submissions that he had been unable to access effective medical care for a
    broken hand and digestive problems while incarcerated, and that he had suffered
    a medical mishap affecting his mobility.

[79]

Of course, enhanced credit for harsh conditions
    of pre-sentence custody is a matter within the discretion of the sentencing
    judge:
Duncan
, at paras. 6-7;
R. v. Ledinek
, 2018 ONCA 1017,
    [2018] O.J. No. 6503, at para. 13. In this case, however, I would not defer to
    the sentencing judges finding. In my view, he erred in exercising his
    discretion by failing to consider relevant evidence that was before him.

DID THE ERRORS IDENTIFIED AFFECT MR. MOREIRAS SENTENCE?

[80]

An error in principle, the failure to consider a
    relevant factor, or the erroneous consideration of factors will justify
    appellate intervention only where it appears from the trial judges decision
    that such an error had an impact on the sentence:
R. v. Lacasse
, 2015
    SCC 64, [2015] 3 S.C.R. 1089, at para. 44. In my view, both of the errors I
    have identified impacted on the sentence.

[81]

First, the sentencing judges failure to resolve
    the factual basis for the manslaughter conviction undermined his ability to
    identify a proportionate sentence. Indeed, the sentencing judges conclusion
    that the factual basis for the jurys finding would not affect Mr. Moreiras
    culpability appears to have given the sentencing judge comfort in sentencing
    Mr. Moreira on the footing that he participated directly in the physical
    assault on Mr. Noureddine, without having made a finding that this was, in
    fact, the basis for the conviction. Specifically, at the end of his sentencing
    decision, just before imposing sentence, the sentencing judge summarized the
    crime for which Mr. Moreira and Mr. Smith stood to be sentenced:

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.

[82]

For the reasons I have expressed, treating Mr.
    Moreira as having participated directly in this reprehensible physical assault
    could have no other outcome but to amplify his level of culpability. In my
    view, he was sentenced as if he had physically participated, absent the
    requisite judicial determination that this was the factual basis for his
    conviction and notwithstanding that this theory of liability was almost
    certainly not the basis for the jurys verdict. As such, I would find that the
    errors the sentencing judge made in this regard were central to the sentence he
    imposed.

[83]

Second, the
Duncan

error also
    effected the outcome. As indicated, the sentencing judges explanation for
    denying
Duncan
credit was based, in material part, on a misapprehension
    of the evidence before him.

[84]

I would therefore grant leave to appeal and set
    aside the manslaughter sentence of 12 years.

A FIT SENTENCE

[85]

In my view, it is not necessary to consider
    whether to send this matter back to the sentencing judge to determine the
    factual basis for the conviction before we substitute a sentence, as in
R. v.
    Englehart
(1998), 124 C.C.C. (3d) 505 (N.B.C.A.), at pp. 510-12. As I will
    explain, the basis for the jurys manslaughter verdict can readily be
    determined on the record before us.

[86]

I have already expressed my view that it is not
    implicit in the jurys verdict that they found Mr. Moreira guilty as a principal
    for having participated in the physical assault. This prospect is so remote that
    it can fairly be disregarded. Rather, it is implicit that Mr. Moreira was
    convicted of manslaughter for having aided Mr. Smith at the outset of the
    assault by helping the assailants intercept the victims.

[87]

In sentencing Mr. Moreira, I would not give
    effect to the aggravating factors identified by the sentencing judge that do
    not bear on Mr. Moreiras crime, nor his determination of the range for a fit
    and appropriate sentence. That range was identified without a proper resolution
    of the factual basis for the conviction. Nor would I defer to the sentencing
    judges refusal to award
Duncan

credit. I would defer to all
    his other findings, and sentence Mr. Moreira for manslaughter as follows.

[88]

Mr. Moreira did not know the level of violence
    that would follow from his act of assistance. However, he was callously indifferent
    to that violence. His act of aiding an unprovoked and pointless attack on Mr.
    Conery and Mr. Noureddine reflected a total disregard for their well-being. His
    readiness to celebrate with his associates after the attack had unfolded in all
    its brutality shows just how disinterested he was in the consequences of the
    conduct he encouraged.

[89]

Mr. Moreiras crime is aggravated by his related
    criminal record, and the fact that he was on probation at the time of
    commission. Mr. Moreira has not demonstrated real remorse for his role in the
    attack. Denunciation, general deterrence, and specific deterrence are therefore
    the key sentencing goals in his case. Although Mr. Moreira did not foresee or
    participate directly in the killing of Mr. Noureddine, those relevant
    sentencing goals require a significant sentence.

[90]

Mr. Moreira played an indirect and early role in
    the attack, at a time when his mental state was mere indifference, and when he
    could not have foreseen the likelihood that his associates would use life-threatening
    force. As indicated, the sentencing judge mistakenly equated Mr. Moreiras
    moral culpability arising from this type of role with that of someone who directly
    participated in the brutal beating of Mr. Noureddine. Therefore, the 12-year
    sentence imposed for manslaughter was too high; Mr. Moreiras level of
    culpability for that offence is materially less.

[91]

Accordingly, after considering the punitive
    impact of the hardship of pre-sentence custody, pursuant to
Duncan
, I
    would impose a 10-year sentence for the offence of manslaughter, before credit
    for pre-sentence custody.

CONCLUSION

[92]

For the foregoing reasons, I would grant Mr.
    Moreira leave to appeal from sentence, set aside his manslaughter sentence of
    12 years, and impose a global sentence of 10 years for that offence. I would
    not disturb the consecutive sentence of 1 year imprisonment for robbery. This
    would result in a total global sentence of 11 years imprisonment.

[93]

Since the global sentence of 11 years I would
    impose is 2 years less than the 13-year global sentence imposed by the sentencing
    judge, the net sentence should be reduced by two years. The net sentence
    imposed on Mr. Moreira at the time of sentence, April 29, 2019, was 8 years and
    5 months. I would therefore substitute a net sentence of 6 years and 5 months,
    as of April 29, 2019.

Released: July 14, 2021 B.M.

David
    M. Paciocco J.A.

I
    agree. B.W. Miller J.A.

I
    agree. I.V.B. Nordheimer J.A.


