Sentencing Decision

Court File No.: CR-22-17514
Date: 2025-05-07
Ontario Superior Court of Justice

Between:
His Majesty the King
Counsel for the Crown: Cecilia Bouzane
– and –
J.P. Dominic Mignac
Counsel for the Accused: Mellington Godoy

Heard: March 17, 2025 at Ottawa

Sentencing Decision by: A. Doyle

Overview

[1] Dominic Mignac was found guilty of aggravated assault, assault with a weapon, assault causing bodily harm, and resisting arrest.

[2] Mr. Mignac will be sentenced on count 7, aggravated assault, as counts 1 (assault with a weapon) and count 2 (assault causing bodily harm) are stayed as a result of R. v. Kienapple, [1975] 1 S.C.R. 729 and having similar factual nexus to count 7. The principles set out in Kienapple prevent multiple convictions for the same criminal act.

[3] He will also be sentenced on count 5, resisting arrest.

Background

[4] On March 10, 2022, Mr. Mignac stabbed another customer, Jason Galarneau (“the victim”), in a Burger King restaurant in Vanier. They did not know each other before this incident.

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

[6] There was some exchange of words between the victim and Mr. Mignac and then, the victim walked over to Mr. Mignac, pushed him and then hit Mr. Mignac three or four times with a closed hand.

[7] Both the victim and Mr. Mignac had a scuffle and they both hit each other. The victim hit Mr. Mignac by upper cutting him and hitting him in the head multiple times. The victim was able to pin Mr. Mignac down on the ground and the victim eventually got up and the fight ended.

[8] The victim walked away, gathered his belongings and headed to the exit. He had his back to Mr. Mignac who then approached the victim and started stabbing him.

[9] The victim received two stab wounds to his left thigh and one to each hand. The victim said that there was a “fight for the knife” and the victim was able to wrap his legs around Mr. Mignac’s neck.

[10] When the police arrived, Mr. Mignac refused to co-operate and be handcuffed. Several officers were required to ground him in order to handcuff him.

[11] None of the victim’s injuries was life-threatening. The victim did not attend the trial and his evidence at the preliminary hearing was entered in as evidence at the trial. He also did not provide a victim impact statement.

[12] For the purposes of sentencing, the court has had the benefit of a presentence report and a section 21 mental health assessment regarding Mr. Mignac. It also had a letter from his parents, indicating the support and concern for Mr. Mignac’s mental health, psychological well-being and financial situation.

[13] In addition, the court has Mr. Mignac’s letter to the court where he apologized for the incident and expressed remorse that this had occurred. He is very worried that he might bump into Mr. Galarneau in the future.

[14] In his address to the court, he spoke of the details of the incident and wanted to provide his point of view of what happened. The court will ignore this information as not relevant and inadmissible.

Crown’s Position

[15] The Crown is requesting a 5-year prison term and ancillary orders dealing with a DNA sample, non-contact order with the victim, and a prohibition order regarding weapons under s. 109.

[16] The Crown submits that denunciation and deterrence are the primary sentencing principles.

[17] The degree of violence used by Mr. Mignac should send a message to him and the general public that this type of behaviour is not acceptable.

[18] The sentence must be punitive and rehabilitation cannot take over the primary principles of the deterrence and denunciation principles.

[19] The Crown provided a range of cases with respect to what is a fit and appropriate sentence.

[20] In R. v. Tourville, 2011 ONSC 1677, the court set out the range of sentencing. In the lower range where there is a consensual fight, and no criminal record and minor injuries, a conditional sentence could be appropriate. A mid-range sentence (higher reformatory sentences) would be imposed for first offenders where there is an element of a consent fight but excessive force was used.

[21] The Crown submits that this case falls into the high range and a federal penitentiary time is warranted. These cases involve individuals with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence.

[22] The aggravating circumstances include the fact that the fight took place in a public place, which could be a danger to the public. There were multiple stab wounds and it was not a consent fight. The court found that there was no air of reality to self-defence.

Defence Position

[23] The defence submits that Mr. Mignac is a good candidate for a conditional sentence as he can obtain treatment under the supervision of a CSO supervisor. He submits that a fit sentence is two years less a day.

[24] Mr. Mignac has demonstrated his compliance with court orders as he has been out on bail for three years and has complied with all his bail conditions.

[25] He is now 50 years old and has been a law-abiding citizen with no previous criminal record having held various forms of employment, including real estate and food delivery.

[26] This was a provoked attack and it was a finding of fact that Mr. Mignac was minding his own business.

[27] He suffers from mental health issues as set out in the section 21 assessment although these issues are not connected to the criminal conduct in this case.

[28] The defence submits that the rehabilitation of Mr. Mignac should be a sentencing principle to be considered by this Court.

Analysis

Legal Framework

[29] The court is guided by s. 718 of the Criminal Code, RSC 1985, c C-46, which sets out the principles the court must consider when sentencing an offender.

[30] It must also consider the fundamental principle of proportionality in s. 718.1, that the fitness of the sentence must reflect the gravity of the offence and the degree of responsibility of the offender.

[31] The primary principles for consideration are denunciation and deterrence.

[32] In Tourville, Justice Code aptly summarized the ranges of sentences for aggravated assault.

[27] The parties have helpfully provided me with a large number of sentencing cases, dealing with the offence of aggravated assault. That offence, contrary to s. 268 of the Criminal Code, carries a maximum sentence of fourteen years imprisonment. The cases disclose a wide range of sentences. At the bottom end is an exceptional case like R. v. Peters, 2010 ONCA 30 where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.

[28] In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira; R. v. Basilio.

[30] At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson; R. v. Pakul, [2008] O.J. No. 1198 (C.A).

[33] In R. v. Arshi, 2023 ONSC 4014, the court imposed a conditional sentence of 15 months followed by 15 months’ probation involving an offender who had mental health struggles including suffering from anxiety disorder. His lack of criminal record was a significant mitigating factor and the court found that a conditional sentence advanced the goal of rehabilitation and gave effect to the principle of restraint. The sentence could address the principal objectives of denunciation and deterrence. This case involved a single punch. The gravity of the injuries is one of many considerations in determining the seriousness of the offence (para. 77).

[34] In R. v. Ali, 2022 ONCA 736 the court replaced a prison term with a conditional sentence of 15 months. The Court of Appeal found that a conditional sentence can provide deterrence and denunciation and may be “appropriate for a crime involving violence, such as aggravated assault even when deterrence and denunciation are paramount considerations” (para. 27). Once the eligibility criteria for a conditional sentence set out in s. 742.1 are met, the imposition is not excluded because it is a crime with violence. The attack was not planned or premeditated but one victim was repeatedly kicked in the head.

[35] In Ali, the Ontario Court of Appeal stated that in cases involving violence, the court should consider the ability of a conditional sentence to meet the objectives of deterrence and denunciation and the other sentencing principles including restraint and rehabilitation. At para. 28, the court stated that: “The trial judge should have considered whether a custodial sentence or one served in the community would better address all of the relevant sentencing objectives − denunciation and deterrence and restraint and rehabilitation.”

[36] The court referred to R. v. Proulx, 2000 SCC 5, where the Supreme Court confirmed that a conditional sentence can be a fit sentence where a case calls out for an emphasis on the sentencing principles of denunciation and deterrence. At para 22 the court stated that a conditional sentence can be more effective than incarceration at achieving goals such as rehabilitation, it “is also a punitive sanction capable of achieving the objectives of denunciation and deterrence”.

[37] The court further stated that a conditional sentence can provide “a significant amount of denunciation” and “significant deterrence”: at paras. 102, 105, 107.

[38] In R. v. Sharma, 2020 ONCA 478 at para 171, the Court of Appeal stated that a conditional sentence may be imposed depending on “‘the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served’: Proulx, at para. 114, see, also, R. v. Wells, 2000 SCC 10, at para. 35.”

[39] R. v. Nguyen, 2021 ONCJ 512, involved an accused out one night with friends. When the victim approached and tried to shake hands with the accused, one of his companions sucker-punched the victim, and then the accused attacked the victim with repeated punches to the upper body and head area. The victim was then taken to the ground where he was kicked and punched repeatedly. The victim suffered a broken jaw in two places, a concussion, and cuts and bruises to his face and body. His injuries required the insertion of eight screws and two metal plates into his jaw: at para. 2.

[40] In Nguyen, the sentencing judge accepted a plea of guilty to aggravated assault, and imposed a 16-month conditional sentence. He found that there were aggravating circumstances, particularly the victim’s injuries and the fact that the accused continued the assault while the victim was on the ground. He found the plea of guilty to be a sign of remorse although he noted that the accused still blamed the victim: at paras. 17-20. He noted that the offence was out of character for the accused, who had not gotten into any trouble since it occurred. The accused had no prior criminal record, was 27 years old, and was employed at a job he would lose if incarcerated. The sentencing judge considered that the imposition of a conditional sentence, with the first 10 months consisting of house arrest with an exception for employment, was consistent with the principle of restraint and not inconsistent with other fundamental principles of sentencing such as deterrence and denunciation.

Decision

[41] For the reasons that follow, this court finds that this case falls in the mid-range of cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. This case involves Mr. Mignac, a first-time offender and initially involved a consent fight but turned into a case where he resorted to excessive force.

[42] I find that this case fits within the mid-range as articulated by Justice Code for the following reasons:

• The victim provoked the attack;
• Initially, it was a consent fight;
• Mr. Mignac used excessive force;
• No criminal record despite his 50 years of age;
• He has demonstrated during his 3 years of being out on bail compliance with the conditions of his release;
• He expressed remorse in court although not to the probation officer conducting the Pre-Sentence Report;
• He is prepared to engage to work on his mental health issues and attend counselling and had demonstrated a sufficient commitment and there is a prospect of rehabilitation. Although he is not currently engaged in counselling or therapy, his desire is to change his life path and work towards a better life in all aspects including social and financial;
• Punitive measures are attenuated when he shows remorse and is wishing to improve his life;
• Rehabilitation potential is favourable given some insight into taking responsibility for his life. His last 3 years has been in a downward spiral including ending his dating of women, gaining substantial weight and no longer attending the gym;
• He has had previous work experience, including car sales and real estate and food delivery;
• Support of his family will increase his prospects of succeeding in his rehabilitative process;
• Post offence conduct is impeccable;
• No progress to measure at this time, but his willingness to engage is a factor that should be considered. Motivation is important; and
• Specific deterrence does not factor high in the sentencing principles that the court should consider.

[43] There is no evidence that Mr. Mignac’s mental health issues were connected to the offence which could be considered in the court’s determination of moral blameworthiness. There is no connection nor temporal and causal link to the commission of the offence. (R. v. Barham, 2014 ONCA 797) and hence is not a mitigation factor in this case.

[44] However, the sentencing principle of rehabilitation requires a review of the psychiatric report prepared by Dr. Anthony Adiele. He indicates that Mr. Mignac has symptoms of paranoia, paranoid ideation, anxiety, and cannabis use disorder. (page 24)

[45] His current situation is complicated by significant financial stress, housing and instability in pending legal issues. The lack of insight into his mental health challenges poses a significant barrier to treatment. He also suggests a comprehensive treatment approach that he suggests would be helpful to Mr. Mignac.

[46] This includes community psychiatric care with antipsychotic medication to address the paranoid symptoms and regular monitoring of the medication. He also recommends cognitive behavioural therapy to help him with the paranoid thoughts and beliefs. He also recommends a structured substance use intervention program in particular to focus on his cannabis use. He also talks about social support and practical assistance that could help with respect to financial management in debt consolidation. He suggests connections with vocational rehabilitation services to help him with his employment situation.

[47] The aggravating circumstances are that it was in a public place and the victim suffered multiple stab wounds.

[48] I agree that the crime is a serious and violent one, denunciation and general deterrence increase in importance, but cannot displace the primacy of rehabilitation, which remains a paramount objective.

[49] Subsections 718.2(d) and (e) of the Code codify the principle of restraint, and direct courts to consider the least restrictive sentence necessary to achieve the objectives of sentencing, especially in cases where a federal penitentiary is being considered as a measure of last resort.

[50] The assault was serious but there is no evidence of permanent and life-threatening injuries or long-lasting effects.

[51] The court must consider all sanctions apart from incarceration, especially for first offenders. As stated in R. v. Batisse, 2009 ONCA 114, at paras. 32, 34, when sentencing a first offender, it is an error to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation.

[52] This aggravated assault is out of character for Mr. Mignac. He genuinely expressed remorse.

[53] The parents have penned a letter indicating their support for their son and concern with respect to his mental, physical and financial well-being. In their letter, his parents wish to provide their support and are hopeful that imposing conditions will provide him with assistance, even though he may need some insight into his issues.

[54] The defence indicates that it was started as a consent fight, but Mr. Mignac went and exerted excessive force. It still falls within mid-range of provincial reformatory and a conditional sentence is appropriate. For the last three years, he has complied with his bail conditions and there have been no issues.

[55] Mr. Mignac is willing to engage in the services provided in the sentence. In his speech to the court, he indicated his remorse and regrets for what has occurred.

[56] The Crown indicates that there are services provided in federal prisons to deal with the medical needs of the offender, as well as it is a consideration when he is eligible for parole. Also, there was no criminal record, but there was no exhibit of remorse until this letter was filed in defence submissions. The multiple stabs, and cuts are aggravating. This is not just a one punch and a consent fight but multiple attacks to Mr. Galarneau.

[57] The Crown states that his actions of attacking Mr. Galarneau were disproportionate, brutal, violent and an excessive use of force.

[58] In my view, taking all of the above into consideration, a fit and appropriate sentence is 2 years less a day which includes 30 days concurrent attributed to the resisting arrest offence.

[59] I now turn to whether Mr. Mignac should be ordered to serve his sentence in the community as a conditional sentence.

[60] A conditional sentence is available as this is not an offence that is enumerated in s. 742 of the Code nor does it carry a minimal sentence.

[61] I have also considered the factors set out in s. 742.1(a) which requires the court to consider whether serving the sentence in the community would endanger the safety of the community.

[62] Also, a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to s. 718.2.

[63] As stated in Proulx and Sharma, violence does not make conditional sentences per se unavailable. It was an error in principle for the trial judge in that case to rule out a conditional sentence based on the level of violence in this case without considering the extent to which a conditional sentence could provide deterrence and denunciation, especially if punitive conditions were imposed, and without weighing all of the relevant sentencing objectives that were applicable in the factual circumstances.

[64] The court is required to weigh whether the sentencing objectives favour a conditional sentence.

[65] In this case, general deterrence is a sentencing objective given the level of violence but I am required to weigh other relevant sentencing factors on the question of whether a conditional or custodial sentence should be imposed.

[66] The amount of deterrence and denunciation that can be provided by a conditional sentence may not always be enough. As stated by the trial judge in Proulx, there will be cases “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct”: Proulx, at para. 106. In Proulx, the court restored the trial judge’s imposition of a custodial sentence for an accused whose dangerous driving caused serious injury to one person and the death of another.

[67] Here, the level of violence was serious as it was not just one stab but several blows with a knife. The effects of the stabs are not life threatening. There is no evidence of whether the injuries were permanent.

[68] The sentence must address deterrence and denunciation yet, I find that I do not need to rule out a conditional sentence as it could provide significant deterrence and denunciation and if I include punitive conditions, then the other sentencing objectives are addressed.

[69] For example, in R. v. Johnson, [2005] O.J. No. 1762, was a more serious case where a conditional sentence was imposed. In that case, the accused was the instigator seeking out the victim and hit one of the victims in the head with a golf club, fracturing his skull and rendering him unconscious, and used the broken club to stab the other in the back. The accused had a criminal record, had made a decision to fight, and used a weapon and received an 18-month conditional sentence. The distinction is that the accused had plead guilty and accepted responsibility and arranged for compensation to one of the victims. He had a positive pre-sentence report, steady employment, and a supportive family. In order to ensure that the sentence also incorporated the necessary deterrence and denunciation, the sentencing judge ordered that the terms of the conditional sentence include restrictive house arrest.

[70] Here, this was an isolated incident in unusual circumstances where he was minding his own business and an irate impatient customer attacked him. Mr. Mignac overreacted and used excessive force when the fight was over.

[71] With a conditional sentence, Mr. Mignac can live in the community and work on the issues as outlined by the doctor.

[72] A conditional sentence is a jail term and conditions can be tailored to the individual.

[73] Please stand up, Mr. Mignac.

[74] I am sentencing you for the aggravated assault and resisting arrest to 2 years minus a day with 30 days concurrent assigned to the resisting arrest conviction.

[75] You will be under full house arrest for 2 years minus a day. This may be served in the community under a conditional sentence which includes the following terms:

• attending counselling and treatment as directed by the conditional sentence supervisor (“supervisor”);
• sign all consents requested by the supervisor;
• may leave your home once per week to attend any issues of necessities including medical appointments or groceries, i.e. every Friday from 3:00 p.m. to 6:00 p.m.;
• obtain approval from the CSO supervisor if you wish to leave your home to work;
• prohibition of any contact with Mr. Galarneau; and
• prohibition of any weapons pursuant to s. 109 of the Code.

[76] Moreover, a further three years’ probation would provide him access to community support services to guide him in rehabilitation. The terms of probation include the statutory terms including to report to the probation officer upon the commencement of the probationary term and as directed by the probation officer and keep the peace and be of good behaviour.

[77] A non-contact order prohibiting any contact with Mr. Galarneau will be in place during the 3 years of probation.

[78] Ancillary orders will also include a requirement to provide a DNA sample and a s. 109 prohibition from owning firearms for 10 years in total.

[79] Mr. Mignac must understand that breach of any condition of the CSO could result in him serving the remainder of his time in prison.

[80] He indicates that he spent 4 days in pretrial custody and hence he should be given credit for 1.5 each day so he will have 6 days of pretrial custody.

Date Released: May 7, 2025
The Honourable Justice A. Doyle