Court File and Parties

COURT FILE NO.: CR-22-17514 DATE: 2024-08-13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Cecilia Bouzane, Counsel for the Crown

– and –

J.P. DOMINIC MIGNAC Mellington Godoy, Counsel for the Accused

HEARD: June 17-18, 20-21, and 24, 2024 in Ottawa

DOYLE J.

Decision

[1] The accused, Dominic Mignac, has been charged with seven counts, including aggravated assault, assault causing bodily harm, attempted murder, and resisting arrest.

[2] It is not disputed that on March 10, 2022, Mr. Mignac stabbed another customer, Jason Galarneau (“the victim”), in the Burger King at 199 Montreal Road in Vanier. They did not know each other before this incident.

[3] The victim was waiting to order food at the counter, and no one had served him. He was hungry and was unhappy that the accused, a Skip the Dishes delivery man on that day, was placing a personal order after he picked up his delivery at another area of the counter.

[4] There was some exchange of words and the victim walked over to the accused.

[5] The victim said the accused pushed him and then the victim hit the accused three or four times with a closed hand. He was in “fight mode”. The victim and the accused had a scuffle and they both hit each other. The victim hit the accused by uppercutting him and hitting him in the head multiple times. The victim was able to pin the accused down on the ground and he eventually got up.

[6] The victim walked away and headed to the exit, and gathered his belongings.

[7] The accused then went to the victim and stabbed him. The complainant had two stab wounds to his left thigh and one to each hand. The victim said that there was a “fight for the knife”, and that the accused was trying to stab him in the chest and throat at least 30 times. The victim had his legs around the accused’s neck.

[8] When the police arrived, the allegation is that the accused refused to co-operate and be handcuffed. Several officers were required to ground the accused in order to handcuff him.

[9] The defence admits the following:

• identification;
• a brown-handled folding knife was seized at the scene and was submitted to the Centre of Forensic Sciences for forensic analysis and was not contaminated during the transport; and
• the victim’s medical records, the photos taken by Detective Jose Barahona, and the other photos entered into exhibits are admissible.

Crown’s position

[10] The Crown submits that the accused uttered “you are going to die” before the stabbing, and that his intent was to stab and kill the victim.

[11] There is no reality to self-defence, as the victim was walking away, putting on his hat and coat, and about to leave at the Hannah Street exit of the restaurant.

[12] The accused came after him and made stabbing attacks towards his neck and abdomen. The accused stabbed him in the thigh and hands.

Defence’s position

[13] Defence indicates that the accused was defending himself. The victim approached the accused and threw a few punches at him. As the victim was walking away, the accused suggests that the victim was uttering threatening language and the accused felt threatened by him.

[14] The stab wounds were inflicted in self-defence and there was no threat to kill the victim.

[15] Since the accused did not know why he was being arrested, he was not prepared to be handcuffed by the police.

Legal framework

[16] The Crown has the onus to prove each of the elements of the alleged offences beyond a reasonable doubt.

[17] Mr. Mignac is presumed to be innocent unless and until the Crown proves his guilt beyond a reasonable doubt.

[18] The obligation never shifts; Mr. Mignac does not have to present evidence.

[19] A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence or lack of evidence.

[20] It is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. However, in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, the Supreme Court stated that the standard of proof beyond a reasonable doubt falls “much closer to ‘absolute certainty’ than to ‘a balance of probabilities’.”

Discussion

Counts 1, 2, and 7

[21] I will first deal with the following counts:

• Count 1 (assault with a weapon);
• Count 2 (assault causing bodily harm); and
• Count 7 (aggravated assault).

[22] These counts, along with Count 6 (attempted murder) capture the stabbing incident to which the accused’s self defence arguments apply.

[23] In arriving at the decision, the court will examine the evidence of the victim, the witnesses present at the time of the incident, the available video-camera surveillance footage, and the medical evidence setting out the victim’s injuries.

[24] The court must assess credibility, which has to do with the honesty or veracity, and reliability, which has to do with the accuracy of the testimony of the witness.

The victim’s evidence

[25] Central to this case is the testimony of the victim, who could not be located to be served with a summons to attend this trial. On consent, the court permitted the transcript and audio recording of the victim’s evidence from the preliminary hearing, dated June 2023, to be admitted at trial.

[26] Although the victim’s evidence was admitted on consent, the lack of opportunity by the accused to have the victim fully cross-examined at a trial can affect its weight and determine if the court accepts some, all, or none of his evidence.

[27] The focus at the preliminary hearing is whether there should be a committal. Defence at this stage may not have had complete disclosure, his examination was exploratory and certainly had a different perspective than one at trial.

[28] Some of the core allegations of the victim’s evidence is supported by other evidence at trial.

[29] The victim testified that he had been waiting to place an order at the counter of Burger King and had not been served. In the video footage, you can see him fidgeting and pacing back and forth, and he testified that he was “starving”. The footage shows him looking at the other end of the counter at the location of the accused.

[30] He said he was upset when he saw the accused make a personal order after he picked up his delivery. They exchanged words. The victim said that he “wasn’t havin’ it ... I said ‘No. I want my food before this guy gets his personal food’”.

[31] He testified that he told the cashier that there was “no way this guy’s getting personal food ahead o’ me”. In cross-examination, he testified that he said “Fuck this. I’ve had enough o’ this shit and I’m not gonna let this guy fuckin’ like take advantage of me. I’ve had enough of this.”

[32] The victim said the accused was calling him names and the victim was telling him to “shut up”. He went over to the accused at the other end of the counter. He went over to him to say “If you have a problem we can go outside”, but before he could say anything, the accused pushed him four or five feet.

[33] What is not contentious is that both of them hit the other in the head, scuffled, and moved over to one of the benches and tables in the restaurant. The victim testified that he uppercut the accused. Ultimately, the victim was on top of the accused, and the victim testified that he did not want to get into further trouble, so he got up.

[34] The accused went back to the counter and the victim picked up his items on the floor and headed to the side exit door opening onto Hannah Street. The victim testified that he could hear the accused say “I’m gonna kill you”, and he was going to grab his knife in his coat if the accused came at him, but the knife was not taken out.

[35] As the victim walked away, the accused tackled him and he testified that the accused stabbed him approximately 30 times and that the accused was aiming for his neck and abdomen. He stated that the attack stopped when “I got my legs around his neck”.

[36] What is in dispute is who started the fight and what words were exchanged after the scuffle, just before and during the stabbing. In cross-examination at the preliminary hearing, the victim denied that he told the accused that he would “kill you next time” or called him a “bitch” or an “idiot” as he walked away.

[37] However, there is reason to doubt the reliability and credibility some of the victim’s evidence.

[38] First, I found the victim was combative with the defence. He called the defence a “liar”. A couple of times during cross-examination, he laughed and appeared to find the proceeding amusing.

[39] The audio recording of the evidence from the preliminary hearing confirms that defence counsel posed his questions in a calm and matter-of-fact manner. He was not aggressive with the victim.

[40] The victim showed some frustrations, was at times hostile, indicated that the whole procedure was “ridiculous”, and stated he wanted to leave.

[41] At p. 38 of the transcript from the cross-examination, he said, “I’ve just had enough of this court. I think it’s ridiculous. I think this whole thing is ridiculous.” The court was required to ask him to calm down and answer the questions. At p. 42, he said of the proceeding, “this is a farce”.

[42] At pp. 39-40 of the cross-examination, in answer to a defence question of whether contact was made at his neck, he said, “Why would you suggest that? Were you there?” and then, later, “Okay. Well you weren’t there so you don’t know”.

[43] Second, the victim seemed to have a “birds eye view” or “outside perspective” of the evidence, as if he was judging the situation. At p. 45, he proclaimed that his sweater (which he said had holes in it from the stabbing) is “inadmissible at this point”.

[44] At times, rather than answering the question posed by defence counsel, the victim provided his observation that this would be hearsay or comment by opining on how events were unfolding on video surveillance footage shown in court.

[45] Although this concern does not significantly diminish the weight of his evidence, nevertheless the court is concerned that his attitude affected his testimony.

[46] Third, he was not prepared to admit that his memory would have been better closer to the event than today. This in my view is not a logical inference. There was no explanation why he believed his memory improved over time.

[47] At pp. 44-45, he admitted that when he spoke to the police on March 10, 2022, he did not remember some of the stuff that the accused was saying to him before the victim confronted him.

[48] Next, he exaggerated the role of the accused. He said the accused attempted to stab him 30 times, and this is not confirmed by the footage.

[49] Channel 8 ----1655 and ------1726 of the video surveillance footage does not show 30 stabs to the victim. At the most there were half a dozen stabs.

[50] In addition, during his testimony at the preliminary hearing, the victim attempted to minimize his role in the scuffle. As discussed below, he admitted to throwing the accused’s phone on the floor, but then backtracked on that. Certainly, the victim attempts to portray himself as blameless in this incident and exaggerates the accused’s aggression. This detracts from his reliability and the credibility of his evidence.

Real evidence

[51] Mike Ross is a video media examiner with the Ottawa Police Service (“OPS”). On March 15, 2022, he collected the data from the cameras at the Burger King. He downloaded it onto a USB flash drive and he indicated that the timestamp on the video camera is 1 hour, 4 minutes, and 58 seconds ahead of the true time on March 10, 2022. He did not obtain the video camera events and surveillance up to 20 hours and 30 seconds, which was his instructions as per the forensic video extraction technical data sheet.

[52] The defence does not dispute that the footage in evidence was taken from the surveillance cameras from the Burger King on the night of the stabbing. Defence complains that not all footage was obtained, so that critical segments showing the initial contact between the victim and the accused and the arrest of the accused is not in evidence. The court accepts the Crown’s position that it is not the Crown’s responsibility to ensure that all events are captured on video camera.

[53] Since there is no audio, there is no confirmation of the words exchanged, nor is it in evidence (as suggested by defence) that the victim was threatening the accused.

[54] The defence admits that the accused could have said to the victim after the stabbing words to the effect of “I hope you die” or “bleed out” but this was not meant to be taken literally.

[55] The footage shows the victim waiting at the counter to be served and the accused entering the restaurant with his delivery bag to pick up his delivery. We also see the victim heading over to the spot where the accused is waiting.

[56] The footage shows the two of them engaging in some pushing and hitting each other in the head. It is not apparent on the video who struck who first.

[57] It is certainly clear that both were punching each other in the head and falling down over the bench in the restaurant. Also, on the video footage, one can see that the accused is pinned down on the ground by the victim.

[58] The footage shows the victim on top of the accused and getting up. The accused walks away towards the counter and the victim walks to the Hannah Street exit door. He picks up his coat and hat and has placed something on a table so he can put his coat on.

[59] We then observe the accused walk up to him and attack the victim with a knife.

[60] After the attack, the accused placed his knife on the counter and the blood on the knife matched the blood of the victim. This was confirmed by Dr. Brian Peck, forensic scientist from the Centre of Forensic Sciences, who was qualified as an expert on the issue of “body fluid identification and DNA analysis and interpretation” on consent of the parties.

[61] Dr. Peck examined the blood and the knife that was used in the stabbing. He confirmed that there is a very high probability that the blood on the knife matched the DNA profile of the victim.

[62] Dr. Sandra Rainbow, an emergency room doctor at the Ottawa Hospital at the time, treated the victim’s wounds on the night of the incident. Medical reports were filed indicating that the victim had two stab wounds to his left thigh and a superficial wound, one laceration to his left hand, and one laceration to the fifth digit on the right hand. None of these wounds was life-threatening. The bleeding was in control and he was not transferred to the trauma department.

[63] Detective Barahona is in the forensic identification section of the OPS. He showed photos of a number of stains within the Burger King, including on a bench, the floor, the wall near the garbage can, the kickplate of the door frame, the side door of the Hannah Street entrance, tiles, interlocking stone outside the door, and snow. He also exhibited photos of the victim’s pants and cuts in his pants caused by the paramedics and stains on his pants, as well as the colour of his coat and the inside, neck area, and chest area.

Other Witnesses

[64] Stephanie Danis was outside in her car on Hannah Street and heard the accused saying to the victim “you’re going to fuckin’ die” after the stabbing.

[65] On that evening, Ms. Danis was driving around with her partner in Vanier and they were heading over to the parking lot across the street from the Burger King to smoke cigarettes. Her window on the front passenger side was open and she could hear loud yelling.

[66] She noticed someone coming out of the Burger King and her partner, who was driving, said that there was “some action” so they slowed down. They slowed down as they were going south to Montreal Road. She saw someone exiting the Burger King from the Hannah Street door and he was struggling.

[67] She says she was 40 feet away from the guy exiting the Burger King and 50 feet from the accused. She said that she heard the accused say “I hope you fucking die” after the stabbing as the victim was about to leave. He sounded angry. She described the two men as follows: the victim was stockier, and the accused had a full beard, was heavily set, and looked like Santa Claus. It is noted that, in the video, the accused only has a goatee and mustache.

[68] No other witnesses testified as to exactly what was said between the accused and victim.

[69] Keith Marien, an Uber driver, was driving his car on Hannah Street and was rolling to a stop on Montreal Road. He says he saw the stabbing.

[70] He did not hear anything being said by either the victim or the accused.

[71] Mr. Marien said that the victim was facing the door and the accused came from behind. Mr. Marien saw the accused’s arm around the victim’s throat. The victim tried to push the accused away and turned around, fighting back.

[72] Mr. Marien testified that he saw the victim’s lower left leg and foot raised to push away the attacker’s chest. He saw the blade flashing from the light in the Burger King. He was using his right hand. The victim was being stabbed in the abdomen and leg areas. Mr. Marien assisted the victim. He admitted it was dark outside.

[73] In cross-examination, while watching the replay of the footage, he said he saw the accused “go for the throat.”

[74] The Burger King supervisor, Sabitri Karki, was in the restaurant at the time of the incident. She was working in the back and at the drive-through window and was not able to see how the fight started. She saw the victim hitting the accused with his fist and his arm cocked up. The accused was receiving many punches from the victim.

[75] She testified that the videos that were shown were surveillance videos from that evening. She heard the word “help” come from the victim after the stabbing took place. She did not hear anything else being said between the accused and victim.

[76] In summary, the evidence establishes that the accused applied force to the victim without his consent, that the accused knew that the victim did not consent, and that the victim sustained injuries.

Self-defence

[77] Is there an air of reality to self-defence?

[78] In applying the air of reality test, the court must consider the totality of the evidence and assumes the evidence the accused relies on is true. There must be evidence upon which one could reasonably draw the inferences necessary to acquit the accused. The evidence must convey a sense of reality to the defence and move “beyond fantasy”: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 74.

[79] At para. 98 of Cinous, the Supreme Court stated “the question is whether, if the jury were to accept the construction of the evidence most favourable to the accused’s position, the requisite inferences could reasonably be drawn.”

[80] For the reasons that are elaborated below, I find that there is no air of reality to self-defence.

[81] The framework for determining whether self-defence is available is set out in the Criminal Code, R.S.C. 1985, c. C-46:

34(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[82] The Supreme Court of Canada in R. v. Khill, 2021 SCC 37, 462 D.L.R. (4th) 389, set out the three relevant inquiries at paras. 51-71:

• The court must inquire with respect to the catalyst. On the evidence, I must determine whether the accused believed on reasonable grounds that force was being used or threatened against him or another person.
• A review of the evidence indicates that after the scuffle, the victim walked away from the accused; was putting his coat on; and picked up a chocolate bar that had fallen from his coat, a bag, and the phone that was on the floor.
• The victim was moving towards the Hannah Street exit door. The accused followed him to the door with a knife.

[83] The court stated the following at para. 54:

The test to judge the reasonableness of the accused’s belief under the self-defence provisions has traditionally been understood to be a blended or modified objective standard. Reasonableness was not measured “from the perspective of the hypothetically neutral reasonable man, divorced from the appellant’s personal circumstances” (R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, at para. 18). Instead, it was contextualized to some extent: the accused’s beliefs were assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused’s belief or actions (Lavallee, at p. 883).

[84] The court does not find that there was force being placed by the victim on the accused at this time. However, it does appear from the video that the victim may have said something to the accused.

[85] At the highest, the victim could have used threatening language to the accused, but the evidence confirms that he was walking away.

[86] Next, the court must then consider motive, that is, the accused’s personal purpose in committing the act that constitutes the offence. The court must consider whether, in this case, the stabbing undertaken by the accused was to defend or protect himself from the use or threat of force. This is a subjective inquiry that goes to the root of self‑defence. If there is no defensive or protective purpose, the rationale for the defence disappears.

[87] Again, the victim was walking away. Moving towards the victim when the scuffle is over and the victim is leaving the restaurant does not require the accused to defend himself or protect himself from the use of force.

[88] The inquiry ends here, as I find that the accused did not have to protect himself.

[89] In any event, even if the court were to find that there was a catalyst and a motive to the accused’s actions, the court finds that the accused’s response to the use or threat of force was not reasonable in the circumstances. I find that a reasonable person in the circumstances of the accused was not required to stab the victim. The accused’s response was, as the Supreme Court said in Cinous, “hot‑headedness and unnecessary resorts to violent self‑help” (Roach, at pp. 277‑78).

[90] In reviewing the factors set out in s. 34(2), the court finds the following:

• there was no force or threat by the victim on the evidence;
• there was no imminent force from the victim;
• the accused followed the victim when he was moving towards the exit and stabbed him;
• the victim has been described as bigger than the accused and, in fact, won the scuffle;
• there is no prior relationship; and
• there is evidence that words were exchanged between them before the scuffle.

[91] In conclusion, the court does not find that the accused had a reasonable belief that force was being used or threatened against him, that he had the purpose of defending or protecting himself, or that his response was reasonable in the circumstances as he knew or reasonably believed them to be.

[92] The accused’s stabbing was not a proportional response to the victim, who, at the time of the stabbing, was heading to the door.

[93] Based on the evidence, the court finds that the accused has not established an air of reality to self-defence.

[94] The court finds that the Crown has proven beyond a reasonable doubt the following elements: the accused applied force directly on the victim who did not consent and the accused knew he did not consent, as can be seen on the video footage and gathered from the evidence of the victim. The victim sustained injuries and wounds to his thigh and hands.

[95] There is ample evidence to show that the accused stabbed and caused injury to the victim.

[96] The Crown has proven beyond a reasonable doubt that the accused committed the assault with a weapon – i.e., a knife.

[97] Also, the court finds that the accused committed assault causing bodily harm beyond a reasonable doubt.

[98] Finally, the court finds that the accused is guilty of aggravated assault, that force was intentionally applied to the victim without his consent, and that accused knew that he did not consent and that the force caused wounds.

Count 6: Attempted murder

[99] Attempted murder requires proof beyond a reasonable doubt that the accused intended to kill, and the conduct of the accused was for the purpose of carrying out that intention: see R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432. The other elements have been made out.

[100] At para. 49 of Boone, the court stated that the conduct must amount to “some act more than merely preparatory”.

[101] For the court to find a specific intent to kill, the court must find that either the accused committed an act believing to a virtual certainty that it would be the actual cause of death of another, or committed an act for the purpose of killing another.

[102] As stated in R. v. Seymour, [1996] 2 S.C.R. 252, at para. 19, the court can draw an inference from the commonsense notion that a sane and sober person intends the natural consequences of their actions. In R. v. Spence, 2017 ONCA 619, 353 C.C.C. (3d) 446, at para. 45, the court stated that the trier of fact should consider any evidence that rebuts this inference.

[103] As stated in R. v. Ryan, 2008 ONCJ 350, at para. 47, the court must look at the facts, including, in this case, “the nature of the weapon, the extent of its use [(attempted stab wounds at the victim’s body)], the manner in which it is used on the victim, the area of the victim’s body that is attacked, the results of the attack and any other surrounding circumstances that may form strands in the process of inference leading to a conclusion on the question of intention.”

[104] For the reasons that follow, I find that the Crown has not proven beyond a reasonable doubt that the accused had the intent to kill.

[105] The Crown conceded that there is a high threshold to meet when proving the mens rea of attempted murder.

Words spoken

[106] The court has a reasonable doubt with respect to whether the accused threatened to kill the victim before and during the stabbing. There is no corroboration of the victim’s evidence on this point. The victim did not testify a trial, and the accused did not have an opportunity to cross-examine him.

[107] At the preliminary hearing, the victim said, in chief, that the accused was saying “you’re going to die” when he was coming to him with a knife. His evidence changed in cross examination. When the court specifically asked him, he said that the words were spoken after he was stabbed. This is an inconsistency which cannot be further explored here at trial.

[108] No witness heard those words spoken to the victim before or during the stabbing. The only independent witness, as indicated earlier, was Ms. Danis, who said she heard “I hope you fuckin’ die” after the stabbing. Although there were other customers and staff present in the restaurant, they were not called and hence there is an absence of evidence regarding the events leading up to the stabbing.

Location of the stabs

[109] The second area of concern that raises a reasonable doubt is the location of the stab wounds on the victim. The court has viewed the video footage of the stabbing several times. The video camera is some distance from the actual stabbing incident and the angle does not provide a clear view of the altercation. Even when the Crown zoomed in and slowed down the incident, the image was blurry and the court did not have a clear view of the stabbing.

[110] The physical evidence of the medical reports shows that the injuries were to the victim’s thighs and his hands. There are no marks to his throat or neck or abdomen, which would be indicative of an attempt to provide fatal or debilitating blows, which could lead to death. The victim said his sweater had holes from the stab wounds inflicted by the accused, but he refused to hand it over to the police, so it is not in evidence.

[111] It is clear from the reports from the hospital as well as Dr. Rainbow’s evidence that the blows were not fatal, that the victim was in stable condition, and that he was not brought to the trauma unit as they were not serious injuries.

[112] The Crown seems to suggest that the injury to the victim’s left hand, in his finger area, was a defensive wound as he attempted to stop the accused from stabbing him in the throat. Certainly, this is one inference that the court can make with respect to the accused attempting to aim for the throat so that he could kill the victim. However, the court is very concerned that the video does not clearly show what was actually happening between the two men, and whether the accused was aiming at the victim’s throat. It certainly does show a scuffle and, certainly, a raised hand in the area, but the court does not have a clear view of where the accused was aiming.

Inconsistencies in the victim’s testimonies

[113] There were some inconsistencies in the victim’s evidence. At p. 23 of the cross-examination transcript, he agreed that he slapped the accused’s phone “outta the way” from the accused’s hand, although that cannot be physically seen. However, further into the cross-examination, he backtracked and said he was not sure and he could not remember. He stated, at p. 32, that he “may or may not have slapped it out of his hand”. And then he says, also on p. 32, “everything but the cell phone is in [his statement] because it’s irrelevant to what happened”. Then, on p. 33, “Maybe I slapped it out of his hand. I’m – unfortunately I don’t know”.

[114] On p. 32 of the transcript, he says it “may or may not have” happened.

[115] On p. 49, he says he does not know if anything was said when he walked away.

[116] However, we do have Mr. Marien, who seems to say that he saw the accused going for the victim’s throat and abdomen. Mr. Marien did not mention the neck in his examination-in-chief.

[117] Certainly, Mr. Marien’s evidence has some frailties to it in that it was dark, there was a door between himself and the parties, and he was in a vehicle with a window between himself and the parties.

[118] In cross-examination, when the scuffle was over, the victim admits to saying “you shouldn’t’ve fuckin’ started this nonsense” and calling the accused a “pussy”.

Conclusion regarding attempted murder

[119] The court finds that there is a reasonable doubt that the accused threatened the victim before the stabbing or during the stabbing. As discussed above, the only witnesses who reported hearing words are the supervisor, who was in the restaurant and heard the victim saying “help” after the stabbing, and Ms. Danis, who heard the accused say “I hope you die” after the stabbing.

[120] Given my findings, Count 6, attempted murder, is dismissed.

Count 4

[121] Given my findings above, regarding the timing of the utterances by the accused with respect to killing the victim, the court is dismissing Count 4, which alleges that the accused uttered a death threat. The words spoken after the stabbing were after the fact and the court has a reasonable doubt that it was a threat, as the conduct had already occurred.

Count 3

[122] The accused is also charged with carrying a weapon for a purpose dangerous to the public peace contrary to s. 88(2) of the Criminal Code.

[123] The Crown has established that the accused possessed a weapon.

[124] The issue is whether the accused had a purpose dangerous to the public peace.

[125] Counsel provided very little argument or law on this count.

[126] The leading case on s. 88 is R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371, where the Supreme Court stated the court must determine the accused’s purpose. This is a subjective determination. The purpose is intention rather than desire.

[127] In this case, the victim approached the accused. The court finds that the accused did not have an intention or purpose to use the knife when entering the restaurant or while in the restaurant.

[128] There is very little evidence as to what the accused knew would probably flow from his possession of the knife, or what he desired from the possession of it.

[129] Given that I have found that there is no air of reality to self-defence, this is not a relevant consideration here.

[130] I must consider in all the circumstances if it was reasonably foreseeable that the intended purpose would have been to endanger the public peace.

[131] Given the circumstances in this case and having considered the evidence of the footage, the witnesses, and the victim, I have reasonable doubt that the accused possessed this knife for the purpose of endangering the public.

[132] This count is dismissed.

Count 5

[133] The accused is also charged with resisting Constable Mark Talbot, a peace officer, in the execution of his duty contrary to s. 129(a) of the Criminal Code.

[134] In R. v. Yussuf, 2014 ONCJ 143, at para. 52, Paciocco J. (as he then was) described the necessary elements of the offence of obstruction of a peace officer in the execution of his duty:

Element 1 – There must be a peace officer who is in the execution of a lawful duty as a peace officer;

Element 2 – The accused person must know or be willfully blind to the fact that this person is a peace officer and must know or be willfully blind to the act the officer is executing;

Element 3 – The alleged obstructive conduct must be an intentional act by the accused person, or an intentional omission by the accused person constituting a failure by the accused to comply with a legal duty;

Element 4 – That act or omission must make it more difficult for a peace officer to carry out their duties; and

Element 5 – The accused person must intend to make it more difficult for the police to execute their duty.

[135] Constable Talbot accompanied Constable Jean Benoit to the scene at the Burger King that evening. Constables Benoit and Talbot first entered the restaurant and saw the accused at the counter with the knife with blood on it on the counter. They had been directed to him by other people at the scene.

[136] The accused was not cooperative. The accused told Constable Benoit that it was self-defence. He told them that “you are not police. You are not handcuffing me.” He tensed his arm, making it difficult for them to handcuff him behind his back.

[137] Other officers had to surround the accused to bring him down so they could handcuff him on the ground. Constable Talbot participated in the arrest of the accused when he had to be brought to the ground.

[138] Constable Renee Mathieu is a police officer who was called to Burger King. She helped with the takedown to the ground of the accused. She took out her taser as she could not see the accused’s hands, and she was worried that he had something in his hands. The taser was not used. The accused had put his hand in a fist and stiffened up his arms, making it difficult to handcuff him. She identified the accused in the court room.

[139] Constable Mathew Bowen assisted with take down of the accused to the ground. This officer held the accused’s left arm and he felt the accused tensing it up.

[140] Constable Nicholas Tessier was handed the accused from Constable Talbot. He brought the accused to the OPS. He had given him his caution and his rights. He searched him, identified him, took photos of his injuries, and arranged for him to talk to his lawyer.

[141] The defence is not raising any breaches of the Canadian Charter of Rights and Freedoms, but suggests that the accused did not know why the officers were arresting him. He first questioned whether they were police officers, even though they were in uniform.

[142] I make the following findings:

• The police had a lawful basis to arrest the accused as he was the person that staff said had stabbed the victim.
• The accused’s knife which had blood on it was on the counter.
• The police lawfully attempted to effect the arrest of the accused.
• The accused tensed his arm, making it difficult for them to handcuff him.
• The accused also failed to show his hands when directed.
• Constable Mathieu did not use the taser despite her concern for officer safety.
• In the circumstances, given the accused’s lack of cooperation, Constables Talbot and Benoit were required to obtain other officers to assist and had to place the accused on the ground.
• The police’s response to the accused’s resistance was reasonable and proportional, and they were justified in putting him to the ground to effect the arrest as someone had just been stabbed and was bleeding and the weapon was in view.

[143] I find that the Crown has proven this count beyond a reasonable doubt and a conviction is entered.

Conclusion

[144] Accordingly, I find the accused guilty of the following counts: 1, 2, 5, and 7. The remaining counts are dismissed.

Released: August 13, 2024 The Honourable Justice A. Doyle