COURT FILE NO.: CR-22-093 DATE: 20240419
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – CODY MOREAU Defendant
Counsel: Kathryn Ginn for the Crown James Mencel and Fiona McNestry for Mr. Moreau
HEARD: February 1, 2024
REASONS ON SENTENCING
C. BOSWELL J. (Orally)
This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written Ruling that is to be relied upon.
[1] Mr. Moreau entered a guilty plea on July 24, 2023 to one count of aggravated assault. Sentencing was adjourned to December 7, 2023 to enable the preparation of a Gladue Report.
[2] On November 30, 2023, the court received a letter from Aboriginal Legal Services (“ALS”) indicating that they were unable to prepare a Gladue Report for Mr. Moreau. In short, ALS concluded that they were unable to confirm Mr. Moreau’s Indigenous ancestry, other than a possible distant connection seven generations back. ALS was careful to clarify that they were not taking the position that Mr. Moreau was not Indigenous, nor were they suggesting that there were no relevant Gladue principles in play in this case.
[3] On December 7, 2024, Mr. Moreau’s counsel requested an order that a conventional Pre-Sentence Report be prepared in light of the fact that there would be no Gladue Report prepared. I acceded to counsel’s request and a PSR was prepared and delivered to the court on January 29, 2024. Sentencing submissions proceeded on February 1, 2024.
THE OFFENCE
[4] An Agreed Statement of Fact was filed at the time of the plea and a two-minute video recording of the offence was played in evidence. I have since reviewed the video multiple times.
[5] The offence unfortunately reflects an all-too-common occurrence in downtown Barrie – an alcohol-fueled, post-closing time brawl.
[6] Mr. Moreau attended the Alley Nightclub at 34 Dunlop Street East on February 28, 2020, as did Stephen Millen. Both consumed alcohol.
[7] At 2:08 a.m., Mr. Moreau and Mr. Millen exchanged words outside the side door of the nightclub. Mr. Moreau began to walk away down the adjoining alleyway. Mr. Millen followed. Moments later, Mr. Millen is observed on a security video walking, then running, the opposite direction down the alley. He was being chased by Mr. Moreau and another male, Jacob Wallis.
[8] Mr. Moreau caught up to Mr. Millen. He kicked him once from behind then grabbed him about the head. He appears on the video to have thrown one or more punches at Mr. Millen’s head. Mr. Millen went to ground. Mr. Wallis proceeded to stomp on Mr. Millen’s head multiple times in rapid succession. Watching the video, I counted at least ten stomps by Mr. Wallis. He then walked away. Mr. Millen was not moving at the time.
[9] Mr. Moreau paused for a moment. Then he stomped on Mr. Millen’s head four times, as Mr. Millen lay helpless on the ground. He then grabbed Mr. Millen by the upper body and began to drag him down the alley. Two bystanders approached and ushered Mr. Moreau away, leaving Mr. Millen lying face down in the snow in the alley, where he was attended to by security personnel from the nightclub moments later.
[10] It is agreed that Mr. Moreau was intoxicated at the time he assaulted Mr. Millen. He has no recollection of the events in issue but acknowledges, having reviewed the security video, that he did assault Mr. Millen and, in the course of that assault, stomped on his head a number of times while Mr. Millen was unresponsive on the ground.
[11] It is conceded that the offence was an aggravated assault.
THE OFFENDER
[12] Mr. Moreau is 30 years old. He grew up in Midland Ontario. He has twin siblings, but he does not maintain a close relationship with them. He identifies as Indigenous though, as I indicated, ALS was unable to confirm his Indigenous ancestry.
[13] Mr. Moreau was raised by his mother. He reports that she suffered from drug addiction. She was far from a model parent and children’s protective services were involved with the family. His mother died in 2023.
[14] He had a difficult time in school as a youth. He was suspended numerous times for fighting. He reports that he was “kicked out” of school in grade 12 for non-attendance. He subsequently did complete his grade 12 education through an alternative learning program.
[15] Mr. Moreau has worked in construction and roofing. He is presently employed with a boat cleaning business, where he has worked for three years. His employer filed a very positive letter with the court on his behalf, describing him as a “great asset” to the company.
[16] He has been in a committed relationship for over two years with Kirsten Coghill. They live together in a basement apartment at Ms. Coghill’s grandmother’s home. She describes the relationship as positive.
[17] Mr. Moreau has an acknowledged history of substance abuse. He reports being addicted to cocaine at age 16. He started to experiment with alcohol at age 12 and was drinking heavily by age 15 or 16. At the time of the index offence, he was drinking a 26 oz. bottle of liquor every night after work. As I noted, he reports being intoxicated at the time of the index offence, on a combination of alcohol and cocaine.
[18] That said, Mr. Moreau reports that he has significantly curtailed his use of alcohol, to the point where he now almost never drinks. He came to appreciate, he says, that his drug and alcohol use were ruining his life and endangering others.
[19] He has taken ownership of his actions on the occasion in issue and has expressed remorse for them.
[20] Mr. Moreau has a youth criminal record and an adult criminal record. For the purposes of sentencing, I am considering only his adult criminal record. It consists of two entries. On August 16, 2012, Mr. Moreau was convicted of uttering threats and failing to comply with a probation order. A suspended sentence was imposed with 12 months of probation.
[21] On June 10, 2019, Mr. Moreau was convicted of assault causing bodily harm. A six-month conditional sentence was imposed, together with six months of probation. Mr. Moreau was on probation for this offence at the time the index offence was committed.
THE CONSEQUENCES OF THE OFFENCE
[22] Security employees of the Alley Nightclub attended to Mr. Millen after the assault and they called 911. Mr. Millen was conveyed by ambulance to the Royal Victoria Hospital (“RVH”) where he was diagnosed with a severe closed head injury. It is agreed that his life was endangered as a result of the injuries he suffered. He was unconscious for three days. He remained at RVH until April 1, 2020 when he was discharged to an acquired brain injury rehabilitation program, where he remained for the better part of a month.
[23] He has had a long road to recovery since the offence. He was unable to return to work for more than a year following it. His balance, equilibrium and co-ordination were impacted for months. He had difficulty concentrating and holding a conversation. His sleep was disturbed. He lost his ability to drive.
[24] Mr. Millen reports feeling a great deal of anger and confusion about the incident. He says he lost a year of his life. He experienced depression and has been prescribed an anti-depressant. He is particularly upset about how the incident affected his parents.
[25] His mother, Elizabeth Millen, recalls receiving a phone call in the middle of the night advising her that her son was in the trauma unit. She was horrified to see her son struggling to regain consciousness and being advised he had suffered a serious brain injury. She suffered along with her son throughout the ordeal of his recovery.
[26] His father, Jeff Millen, recounted seeing his son in the emergency department at Royal Victoria Hospital and having a difficult time recognizing him due to the swelling in his face. He could count eight distinct tread marks on his head. He detailed the painstaking and difficult road to recovery for his son. He took early retirement from a position at deHavilland Aircraft Company in order to assist in his son’s care.
SENTENCING PRINCIPLES AND OBJECTIVES
[27] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence (both general and specific), the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.
[28] The importance of these individual objectives, and how they interact, varies from case to case. In cases involving aggravated assault, the objectives of denunciation and deterrence take center stage. Having said that, Mr. Moreau remains a relatively young man who has never been sentenced to a term of imprisonment. The objective of rehabilitation and the principle of restraint must be given due consideration in the crafting of a fit and just sentence.
[29] Identifying the principal objectives engaged in any given case is only the first step. The next step is to assess what sentence is necessary to meet those identified objectives. In making that assessment the court is guided by the fundamental principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[30] Proportionality engages two concepts: censure and restraint. See R. v. Ipeelee, 2012 SCC 13, at para. 37. As LeBel J. observed, a sentence must promote justice for victims and enhance public confidence in the administration of justice. At the same time, it should not exceed what is appropriate in light of the moral blameworthiness of the offender. The restraint principle directs the court to impose the least intrusive sentence and the shortest duration necessary to achieve a just, fit and proportionate sentence. See R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.) at paras. 95-96.
[31] Inherent in the concept of proportionality is the principle of parity. Imposing sentences proportionate to the gravity of offences and the moral blameworthiness of offenders requires the court, on the one hand, to recognize where there are material differences between different offenders and different offences. On the other hand, any sentence imposed must be similar to those imposed on offenders who have committed similar offences with equivalent moral blameworthiness. See s. 718(2)(b) of the Criminal Code. Parity, in other words, is an expression of proportionality. See R. v. Friesen, 2020 SCC 9, at para. 32.
[32] Having said all of that, it is important to recognize that sentencing remains a highly individualized exercise. A sentencing court must focus on tailoring the sentence to the gravity of the offence, the moral blameworthiness of the offender and the harm caused by the offences. See R. v. Nur, 2015 SCC 15, at para. 43. In doing so, the sentencing court must pay careful attention to the unique circumstances of the offender and of the offence, with regard to any aggravating and mitigating circumstances present.
THE PARTIES’ POSITIONS
[33] Pursuant to s. 268(2) of the Criminal Code of Canada, the maximum sentence applicable upon conviction of aggravated assault is fourteen years imprisonment. There is no applicable minimum sentence.
[34] Crown counsel seeks a sentence of three and a half years imprisonment, together with an order requiring Mr. Moreau to provide a sample of his DNA and a s. 109 weapons prohibition for ten years.
[35] Crown counsel – accurately in my view – characterizes this attack as a shocking demonstration of extreme violence on a helpless victim. It had a significant and long-lasting impact on the victim and his family. The Crown urges the court to send a strong signal on behalf of the community denouncing this type of behaviour and submits that a penitentiary sentence is the only way to do so.
[36] Defence counsel submits that an appropriate sentence in all the circumstances of this case is one in the high reformatory range – in other words, something just under two years. He further submits that this is an appropriate case – despite the level of violence involved – for the imposition of a conditional sentence. He proposes that most, if not all, of that conditional sentence involve house arrest in order to make it more forceful, as well as 100 hours of community service.
[37] Mr. Moreau is prepared, his counsel says, to make restitution to Elizabeth Millen for two weeks wages she lost while caring for her son immediately after the offence.
DISCUSSION
The Applicable Range
[38] Sentencing judges frequently begin their assessment of a fit and just sentence with the search for an established range of sentences applicable to the subject offence. Ranges are helpful guidelines. They assist courts in adhering to the parity principle – ensuring that like cases are treated alike. Ranges are not, however, meant to be fixed or inflexible: see R. v. D.D., [2002] O.J. No. 1061 (C.A.). They must play a servient role in the individualized sentencing process: see R. v. Nasogaluak, 2010 SCC 6, at para. 43.
[39] In R. v. Tourville, 2011 ONSC 1677 (S.C.J.) Code, J. described sentencing ranges for aggravated assault as falling into three general tiers. At the low end are cases with exceptionally mitigating circumstances, where modest punishments are typically imposed. Mid-range cases, frequently involving consensual fights where excessive force is used, typically result in sentences in the upper reformatory range, roughly 18 months to 2 years less a day. At the high end are cases involving seriously aggravating circumstances, such as extreme violence, pre-meditation, an absence of provocation and/or involve offences committed by a violent recidivist. Upper end cases tend to attract more significant penitentiary sentences, in the four-to-six-year range.
[40] Aggravated assault is an offence that may be committed in a wide range of circumstances. While I find Justice Code’s “three tier” approach to be helpful, not all cases fall neatly into one tier or another.
[41] The fight involved here was not consensual. I accept that Mr. Millen appears to have engaged with Mr. Moreau in an arguably provocative way. But it does not appear to me that the physical fight was consensual, nor have counsel made any suggestion that it was.
[42] This was a two-on-one attack. The violence used was extreme and entirely gratuitous. Mr. Moreau was on probation, having just served a conditional sentence for a conviction for assault causing bodily harm. In these circumstances, I believe the appropriate sentence straddles the upper mid-range and the lower high-end range described by Justice Code. Where it falls more precisely depends on a more detailed consideration of the aggravating and mitigating circumstances of the offence.
[43] Before I address those circumstances in more detail, I will consider defence counsel’s submission regarding the application of the Gladue principles.
Gladue Principles
[44] In 1996 the Criminal Code was amended to codify the fundamental purpose and principles of sentencing. One of the provisions added was s. 718.2(e) which provides that the court should consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders. This amendment was grounded in a concern about the overrepresentation of Indigenous people in the Canadian criminal justice system. (See R. v. Ipeelee, 2012 SCC 13, at para. 58).
[45] In R. v. Gladue, [1999] 1 S.C.R. 688, the Supreme Court held that s. 718.2(e) signalled Parliament’s intention that the sentencing of Indigenous offenders was to be undertaken differently than other offenders in order to achieve truly fit and proper sentences in the particular circumstance of each case. An altered method of analysis was necessary to give effect to what the court described, at paras. 33-34, as “the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system.”
[46] At para. 93 of Gladue, the court summarized a number of principles associated with the altered method of analysis to be applied to sentencings involving Indigenous persons. It is unnecessary for me to review those principles in detail here. Suffice it to say that the intent of the altered method of analysis is to address: the unique circumstances of Indigenous offenders in the Canadian criminal justice system; the serious problem of overrepresentation of Indigenous people in Canadian prisons; and the unique systemic or background factors which may have played a part in bringing the particular offender before the courts.
[47] When sentencing an Indigenous offender, a judge must take judicial notice of the broad systemic and background factors affecting Indigenous people including the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Indigenous peoples. Again, see Ipeelee at para. 60.
[48] An application of the Gladue principles does not, of course, immediately translate into a lower sentence for an Indigenous person. What those principles do is provide significant context in which to evaluate case-specific information about the offender provided to the court at the sentencing hearing. See Ipeelee, para. 60.
[49] Mr. Moreau’s counsel advised the court that Mr. Moreau identifies as Indigenous. He urged the court to apply the principles enunciated in Gladue.
[50] It is difficult to determine what to make of Mr. Moreau’s self-identification as an Indigenous person. The law does not appear to be clear about how to interpret Indigeneity for the purpose of engaging the Gladue principles.
[51] The evidentiary record before the court is not sufficient in this case to support a finding that Mr. Moreau is biologically Indigenous.
[52] Mr. Moreau advised ALS that his mother had a Metis Nation of Ontario citizenship card. ALS could not confirm that statement. They were only able to confirm that he had a paternal grandmother (x 7) – in other words, a great, great, great, great, great, great, great grandmother – who was Indigenous. On the basis of that information, which is all ALS could confirm, Mr. Moreau would be 1/128th Indigenous. I would not, in the circumstances, characterize him as biologically Indigenous.
[53] There appears to be little jurisprudence on the question of whether or in what circumstances the Gladue principles apply to offenders who self-identify as Indigenous but who are not biologically Indigenous. Counsel did not refer me to any caselaw on the point.
[54] In R v. Young, 2021 B.C.J. No. 72, affirmed 2021 BCCA 462, Patterson J. of the British Columbia Provincial Court addressed the question head-on.
[55] Mr. Young was convicted of possession of cocaine for the purpose of trafficking. His counsel advised the court that he identified as Indigenous.
[56] Mr. Young was born in Germany. His father was a non-Indigenous Canadian soldier stationed in Germany. His mother was a German national. His parents separated when he was a child. His mother subsequently began a relationship with another Canadian soldier stationed in Germany, who was a biologically Indigenous man. This man became Mr. Young’s step-father. The family relocated to Haida Gwaii when Mr. Young was 12. He resided in a Haida community continuously from age 12 to the time of the offence. He was in his early 60s at the time of the sentencing.
[57] Justice Patterson reviewed the Gladue principles in detail and the purposes associated with those principles. He concluded that they do not automatically apply to an offender who is not biologically Indigenous just because the offender self-identifies as Indigenous. Instead, he held, there is both a subjective and objective component to determining if an offender is an Indigenous person for the purpose of s. 718.2(e) of the Criminal Code and the Gladue analysis.
[58] He held that a sentencing judge must consider a number of factors, including, amongst others:
(a) the personal circumstances of the offender, including the unique systemic or background factors which may have played a part in bringing the offender before the courts;
(b) the statutory purpose and principles of sentencing; and,
(c) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of their particular heritage or connection to an Indigenous community.
[59] I am not bound to follow Justice Patterson’s decision, but I find it persuasive.
[60] I accept that Mr. Moreau self-identifies as Indigenous. I find no objective evidence, however, to support his subjective view.
[61] Mr. Moreau has no apparent connection to any Indigenous community. Apart from his unconfirmed statement that his mother had a Metis Nation of Ontario citizenship card, there is no evidence that his mother identified as Indigenous or that Mr. Moreau was raised in an Indigenous household or in an Indigenous culture. There is really no means of determining whether or how his experience or his family’s experience of living as an Indigenous person in Canada affects his moral blameworthiness for the index offence.
[62] As ALS indicated, they are unable to address how being an Indigenous person, or even identifying as one, has affected his life circumstances.
[63] In the result, I am unable to apply the Gladue principles to the sentencing of Mr. Moreau.
[64] Having said that, the PSR provides information about Mr. Moreau’s unique circumstances and the background factors that may have played a part in bringing him before the court. While Mr. Moreau may have no Indigenous heritage or connection to an Indigenous community, the PSR does provide significant context. It is case-specific evidence I must consider in crafting a fit and just sentence.
[65] Mr. Moreau came from a broken home and was raised by a mother with substance-abuse problems. These features are certainly consistent with the experience of many Indigenous people impacted by the history of colonialism, displacement, and the residential schools system. But they are not unique to Indigenous people.
[66] Mr. Moreau’s upbringing assists the court in understanding how he came to have his own substance abuse problems, how he had a difficult time in school, and why he has acted in an anti-social way on a number of occasions, including the one that brings him before the court.
Aggravating and Mitigating Circumstances
[67] I have already touched upon some of the aggravating circumstances in this case. They include:
(a) This was an offence of extreme violence, involving two attackers against one victim;
(b) The violence appears to have been largely gratuitous. Mr. Moreau’s actions, in stomping on Mr. Millen’s head, were performed at a time when Mr. Millen was prone, likely unconscious, on the ground;
(c) Mr. Millen was very seriously injured as a result of the assault. It had a serious impact on his physical and mental health;
(d) Mr. Moreau has previously been convicted of an assault causing bodily harm; and,
(e) Mr. Moreau was on probation at the time of the offence.
[68] By way of mitigation:
(a) Mr. Moreau entered a guilty plea. It was not entered early in the process but it did avoid a trial and the need for Mr. Millen to testify;
(b) Mr. Moreau, in entering the plea, accepted responsibility for his actions. Moreover, he expressed remorse to Mr. Millen and his family;
(c) Mr. Moreau had a difficult upbringing, including being raised by a single parent with substance-abuse issues. In turn, he has experienced his own substance-abuse issues; and,
(d) Mr. Moreau has worked hard to turn his life around. He has largely abstained from alcohol use. He is in a committed relationship and has solid employment with a supportive employer.
Parity
[69] As I have noted, Mr. Millen was attacked by two men. Mr. Moreau is one; Mr. Wallis the other. For reasons not made clear to me, the Crown elected to proceed summarily against Mr. Wallis. He entered an early guilty plea to assault causing bodily harm. He was sentenced to 15 months in prison.
[70] The Crown elected to proceed by indictment against Mr. Moreau. They seek a sentence of 42 months, some 27 months more than was imposed on Mr. Wallis. Mr. Moreau’s counsel expressed the concern that the Crown’s position ignores the principle of parity.
[71] The parity principle is, as I noted, codified in s. 718.2(b) of the Criminal Code. It is a principle of fairness. See R. v. Downes, 2015 ONCA 674 at para. 10. It does not, however, require that that all co-accused receive the same sentence, or even that they be treated similarly for sentencing purposes. See R. v. Courtney, 2012 ONCA 478 at para. 4.
[72] As LeBel J. explained in Ipeelee, at paras. 78-79, “similarity” is sometimes an elusive concept. No two offenders, he said, “will come before the court with the same background and experiences, having committed the same crime in the exact same circumstances.” What is important is that any disparity in sentences imposed on co-accused be justified.
[73] There are meaningful differences between Mr. Moreau and Mr. Wallis. Mr. Wallis was considerably younger at the time of the offence, being 22 years of age. He had no criminal record. He was convicted, on a guilty plea, of the less serious offence of assault causing bodily harm. And his plea was entered at an early stage in the proceedings.
[74] By contrast, Mr. Moreau was older, at age 26. Significantly, he did have a criminal record. He was convicted in August 2012 of uttering threats and failing to comply with a probation order. More significantly, he was convicted in June 2019 with assault causing bodily harm. He was, as I noted earlier, on probation in relation to that conviction at the time the index offence was committed.
[75] Mr. Moreau’s role in the offence was also, in my view, more aggravating. He is the one who initiated the physical attack on Mr. Millen. Moreover, he applied four heavy stomps to Mr. Millen’s head at a time when Mr. Millen was incapacitated on the ground. The fight was over. Mr. Millen was utterly defenseless. He stopped his assault on Mr. Millen only when bystanders intervened.
The Appropriate Sentence
[76] Crown and defence counsel each provided the court with a number of cases that they submitted as supportive of their respective positions.
[77] Crown counsel referred the court to R. v. R.S., 2023 ONCA 608; R. v. Brouillard, 2016 ONCA 342; and R. v. Mirza, [2006] O.J. No. 1806 (S.C.J.).
[78] R.S. was offered for the limited purpose of confirming that recent amendments to the conditional sentencing regime, and in particular, s. 742.1(e) of the Criminal Code, have the effect of expanding the availability of conditional sentences. They do not have the effect of signalling that a conditional sentence is appropriate in any particular type of offence.
[79] Brouillard and Mirza were offered to support the length of sentence urged upon the court by the Crown.
[80] Jessie Brouillard was one of two managers of a nightclub who assaulted a male they evicted from the club. Steven Taing was the other. They were each convicted, following a trial, of aggravated assault. Each accused had punched the victim once in the head after ejecting him from the club. He suffered severe and life-altering head trauma. The Court of Appeal upheld the trial judge’s imposition of a sentence of 42 months on Mr. Brouillard and 36 months on Mr. Taing. Aggravating circumstances included that the co-accused acted in concert, they attacked the victim when he was defenceless, and the victim suffered severe head injuries.
[81] David Mirza pleaded guilty to one count of aggravated assault. He was one of about 1,000 people who attended a News Year’s party at a campus pub at the University of Waterloo on December 31, 2002. A fight occurred outside of the pub at roughly 1:00 a.m. The victim attempted to prevent a group of individuals from assaulting his friend. The victim did not strike anyone. Mr. Mirza, however, punched the victim, who fell to the ground. Mr. Mirza and others kicked the victim in the torso and head. The victim suffered severe head trauma and very nearly died.
[82] The sentencing judge imposed a sentence of 30 months imprisonment. He found the following to be aggravating factors: this was a vicious assault, committed by a group. Mr. Mirza kicked the victim in the head when he was helpless and had no opportunity to defend himself. The kick to the head was not pre-meditated but was not spontaneous.
[83] Defence counsel referred the court to R. v. Tourville, 2011 ONSC 1677; R. v. Kavinsky, 2017 ONSC 3792; R. v. Ali, 2022 ONCA 736; R. v. Arshi, 2023 ONSC 4014; R. v. Nguyen, 2021 ONCJ 512; and R. v. Hunter, 2015 ONSC 325.
[84] I have referred to Tourville earlier. It is the decision where Code J. described sentences for aggravated assault as following into low-, mid-, and high-end ranges depending on the circumstances of the offence.
[85] Mr. Moreau’s counsel characterized the circumstances here as falling within the mid-range described in Tourville. Code J. suggested, at para. 28, that mid-range cases “generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.” Mid-range sentences, he said, fall within the upper reformatory range between 18 months and 2 years less a day.
[86] I consider the circumstances here to be more serious than the types of cases that Code J. described as generally falling within the upper reformatory range. The circumstances here tend to share more of the characteristics of cases at the high-end of the range. Extreme violence was used. While there may have been some measure of provocation, the fight was not consensual. I would not find it to have been pre-meditated but it was also not spontaneous. The fight was, as I noted, over at the point when Mr. Moreau elected to stomp four times on Mr. Millen’s head. Finally, Mr. Moreau’s proximate conviction for assault causing bodily harm is a significant aggravating feature of the case.
[87] Most of the balance of the cases submitted by defence counsel were offered to support the appropriateness of a conditional sentence despite the extent of the violence used.
[88] The submission of a conditional sentence was grounded largely in the Court of Appeal’s decision in Ali.
[89] Mr. Ali and his brother were convicted of aggravated assault following a trial. They had jointly attacked the victim, who was punched, knocked to the ground and kicked in the head. The trial judge imposed sentences of 15 months plus 2 years probation on each offender. On appeal, the Court of Appeal varied the custodial sentence to a 15-month conditional sentence.
[90] Zarnett J.A. instructed that conditional sentences are available even in cases where the principal sentencing objectives are denunciation and deterrence, including cases where serious violence has been used. In the circumstances of Ali, the trial judge had not, he held, sufficiently accounted for the principles of restraint and rehabilitation.
[91] Ali was relied on by Dawe J., as he then was, in Arshi, where he imposed a 15-month conditional sentence, together with 15 months probation, on an offender convicted of aggravated assault, following a trial. Mr. Arshi was a bar owner. He fought with a patron over a bar tab on New Year’s Eve 2017. He punched the patron once. The patron fell to the floor and may have struck his head. He suffered broken bones in his face and a brain bleed. Five years on, he was still experiencing memory problems and other cognitive deficits.
[92] Dawe J. considered a number of factors as mitigating of Mr. Arshi’s moral blameworthiness. For instance, he punched the victim only once. He did so spontaneously, after some measure of provocation. And he had no criminal record.
[93] Nguyen pre-dated the Court of Appeal decision in Ali and was referred to in Ali by Zarnett J.A. as an example of an offence of serious violence where a conditional sentence was found to be appropriate.
[94] Mr. Nguyen and two others assaulted the victim after an altercation outside a restaurant on Spadina Avenue in Toronto. One male sucker-punched the victim from behind. Mr. Nguyen then repeatedly punched the victim. The victim went to ground, where he was repeatedly punched and kicked. He suffered a broken jaw in two places, a concussion, and various cuts and bruises.
[95] Mr. Nguyen was 27, with no record. The Crown sought a sentence of 18-24 months. The defence proposed a conditional sentence. The trial judge imposed a conditional sentence of 16 months. He found the offence out-of-character for the accused. The accused pleaded guilty and demonstrated some measure of remorse. He had a job he would lose if a custodial sentence was imposed.
[96] Mr. Moreau’s counsel took the position that, even if a conditional sentence was not favoured by the court, the appropriate range of sentence remained an upper reformatory one. To that end, he cited Kavinsky.
[97] Mr. Kavinsky was 21 years old at the time of the offence. He attended a birthday party for a young, female friend. When he attempted to drive after consuming alcohol, he was prevented from doing so by the friend’s father. An argument ensued during which Mr. Kavinsky repeatedly stabbed the father, resulting in potentially life-threatening injuries.
[98] Mr. Kavinsky was convicted following a trial during which he unsuccessfully argued self-defence. The Crown sought a sentence of 18-24 months. The defence urged the court to impose a suspended sentence with probation. The trial judge, noting that Mr. Kavinsky was a young, first-time offender, who had committed an act entirely out-of-character and was remorseful, imposed a custodial sentence of 21 months plus a 2-year period of probation.
[99] It is not surprising that the caselaw offers examples of sentences ranging from house arrest to penitentiary time. As I noted, aggravated assault is an offence that may be committed in a very wide range of circumstances. And sentencing is a particularly individualized exercise.
[100] It is important to carefully assess the gravity of the offence in issue and the moral blameworthiness of the offender.
[101] The gravity of the offence here was extremely serious. This was a vicious, two-on-one attack. Stomping on a person’s head when they are unconscious and defenceless is a vicious and cowardly act. It has predictably traumatic results. Indeed, it had very traumatic results in this instance, for both Mr. Millen and his family.
[102] In my view, the gravity of the offence here is more significant than in any of the cases cited by defence counsel that led to the imposition of conditional sentences. In Ali, for instance, the victim suffered far less serious injuries, which included swelling around his right eye, swelling of his lips and cheek and a cut on the right side of his face. In Nguyen, the injuries were more serious than in Ali, but less serious than the severe head injury suffered by Mr. Millen. In Arshi, the violence was substantial less severe.
[103] Here, Mr. Millen was left in a coma, his face unrecognizable from the swelling, and covered in boot prints. His parents did not know whether he would live or die. He had a lengthy and arduous recovery period.
[104] The gravity of the offence here is more consistent, in my view, with the gravity of the offences committed in Mirza and Kavinsky. Recall that Mr. Mirza was sentenced to 30 months imprisonment and Mr. Kavinsky 21 months, together with 2 years probation.
[105] It is difficult to conclude that Mr. Moreau’s moral blameworthiness is anything but at the high end. Again, this was a joint attack on someone who was clearly not fighting back. And, as I have noted, the fight was over and Mr. Millen prone and helpless on the ground when Mr. Moreau stomped repeatedly on his head.
[106] Mr. Moreau was on probation at the time of the attack. The reason he was on probation was that he had fairly recently been convicted of assault causing bodily harm. For that offence, a conditional sentence had been imposed. It evidently did not deter him from engaging in further violent offending.
[107] I appreciate that Mr. Moreau recognized that his substance abuse issues were a source of significant difficulty in his life. His intoxication on the occasion in issue likely contributed to his violent actions and the terrible decisions he made. He has taken active steps to address those issues and I commend him for that. He has maintained steady employment and has kept out of trouble since the offence was committed some four years ago. I commend him for that as well. These factors certainly tend to mitigate the sentence I would otherwise impose.
[108] That said, the same mitigating circumstances were present in both Mirza and Kavinsky. Both of those offenders were, moreover, youthful, first-time offenders.
[109] In my view, an appropriate sentence, in all the circumstances, is 30 months imprisonment. It is the sentence I impose. It is double the sentence imposed on Mr. Willis, but I am satisfied that the differences between the two offenders and the roles they played in the assault justify the difference. Given the length of the sentence, it is unnecessary to examine whether it should be imposed conditionally. A conditional sentence is only available where the sentence imposed is less than 2 years.
Ancillary Orders
[110] Crown counsel sought an order that Mr. Moreau provide a sample of his DNA and that a s. 109 weapons prohibition be imposed for a period of ten years. Defence counsel did not oppose those orders and I consider it appropriate to impose them.
C. Boswell J. Released: April 19, 2024