COURT OF APPEAL FOR ONTARIO

DATE: 20230623 DOCKET: C70349

Simmons, Lauwers and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

Mitchell Dubros Appellant

Counsel: Frank Addario and Wesley Dutcher-Walls, for the appellant Jeremy Streeter, for the respondent

Heard: February 21, 2023

On appeal from the conviction entered by Justice Kenneth L. Campbell, on October 16, 2021, of the Superior Court of Justice, sitting with a jury and the sentence imposed on March 1, 2022, with reasons reported at 2022 ONSC 1165.

Simmons J.A. :

Introduction

[1] A jury found the appellant guilty of wilfully attempting to obstruct justice while he was working as a private investigator for a criminal defence lawyer in early 2018. The trial judge sentenced the appellant to 18 months’ imprisonment and three years’ probation. The appellant appeals against conviction, seeks leave to appeal sentence and applies to introduce fresh evidence on appeal relating to sentence.

[2] Concerning the conviction appeal, the appellant submits that the trial judge erred in responding to jury questions about intent and reasonable doubt and further erred by failing to instruct the jury on the relevance and permissible uses of a regulation addressing private investigators’ conduct – O. Reg. 363/07 enacted under the Private Security and Investigative Services Act, 2005, S.O. 2005, c. 34 (the “Code of Conduct” or “Code”).

[3] Concerning sentence, the appellant submits that the trial judge erred by over‑emphasizing general deterrence and by refusing to consider the employment consequences of a conviction, resulting in a sentence that was disproportionate.

[4] For the reasons that follow, I would dismiss the conviction appeal, but grant leave to appeal sentence, allow the sentence appeal, and substitute a two‑years‑less-one-day conditional sentence for the sentence of imprisonment imposed by the trial judge.

Background

[5] The appellant was 58 years old at the time of the offence, had been a private investigator in Toronto for over 30 years and was licensed under the Private Security and Investigative Services Act, 2005. In February 2018, a criminal defence lawyer (the “defence lawyer”) hired him to assist with preparation for a preliminary inquiry scheduled for April 2018.

[6] The defence lawyer was representing a client (the “client”) facing charges of criminal harassment, harassing telecommunications, obstructing justice, and two counts of failing to comply with an undertaking. The complainant in relation to those charges was the client’s former girlfriend, who held a job that placed her in the public eye. The defence lawyer hired the appellant to interview and investigate the complainant and four of her colleagues and friends (collectively “the witnesses” [1]).

[7] The appellant called or visited each of the witnesses in February and March 2018 and recorded his conversations with them.

[8] At the appellant’s trial, the Crown alleged that the appellant attempted to obstruct justice by making what the Crown characterized as threatening statements to the witnesses aimed at bringing pressure to bear on the complainant to seek a resolution of the charges by way of peace bond or at dissuading the complainant from testifying against the client.

[9] The content of the appellant’s conversations with the witnesses was not in dispute at trial. The appellant’s audio recordings of his conversations with the witnesses and an Agreed Statement of Fact, including transcripts of the recordings, were filed at trial. The witnesses also gave evidence about their perceptions of their interactions with the appellant, which in general, they found intimidating. Nonetheless, the witnesses scheduled to testify at the client’s preliminary inquiry did so and he ultimately pleaded guilty to some of the offences with which he was charged.

[10] Among other things, the recordings and transcripts disclosed that the appellant had made statements to the witnesses such as the following:

• to the complainant: “Is there any way to simplify this and make it go away so it doesn’t get any worse – any – any more stories, any more garbage coming out?”
• later the same day in a telephone message to the complainant: “if you could talk to me for a couple of minutes, or [the defence lawyer]. I don’t know if uh there’s something that can be concluded, maybe nothing wrong with accepting a peace bond and just moving on”;
• to one of the complainant’s co-workers: “I can talk to anyone. I can find out any dirt. I can sling hearsay that would come out and taint all of your – your professional careers. Just – just – just the murmurs of it. So, again [name of co-worker] I’m a straight shooter. I’m – I’m, trying to help resolve this situation that just got a little bit outta hand and nobody deserves to go to jail and have criminal records”;
• to another co-worker of the complainant: “you know, I can be – I can be ruthless. I can go and I can expose all kinds of stuff. I could dig every skeleton of you and her and [name of another co-worker] and everybody, and the ex-husband and I – I – I don’t wanna do it. But – but you know, after tomorrow, or after tomorrow’s pre-hearing or if this – if this continues, I’m gonna have to do my job”.

[11] The primary issue at trial was the appellant’s intent when speaking to the witnesses.

[12] The appellant testified and denied that he intended to intimidate the witnesses into pressuring the complainant to resolve the case or pressure the complainant into not testifying. He claimed that, after reviewing defence counsel’s brief, he concluded it made no sense that the charges had not been resolved in some way as no violence or threats had been involved. He believed a peace bond was already on the table and wanted to find out from the witnesses what was standing in the way of a resolution.

[13] The appellant said he did not intend to convey to the witnesses that he would release to the public any information he found out about them. Rather, he intended to explain that he was working for the defence lawyer, and it was the defence lawyer who could potentially use information the appellant discovered to discredit the witnesses in court and thus make the information public. Any failure to properly communicate what he would do with information he discovered was a result of using the wrong words or an error in judgment. He intended only to make the witnesses aware of the process; he did not intend to obstruct justice.

The Code of Conduct

[14] At the close of the Crown’s case, the Crown requested that the Code of Conduct be admitted into evidence. The Code of Conduct is a professional code for licensed private investigators outlining the principles to be followed and obligations to be complied with. Over a defence objection [2], the trial judge ruled the Code admissible as a matter of judicial notice under s. 17 of the Canada Evidence Act, R.S.C., 1985, c. C-5. [3]

[15] Among other things, the Code of Conduct includes the following three provisions to which the trial judge referred in his instructions to the jury at trial:

2(1) Every individual licensee, while working as a private investigator or security guard, shall,

a) act with honesty and integrity; b) comply with all federal, provincial and municipal laws; h) respect the privacy of others by treating all information received while working as a private investigator or security guard as confidential, except where disclosure is required as part of such work or by law.

The Jury’s Questions

[16] The jury asked several questions during the trial: four during the evidentiary portion of the trial; one during the trial judge’s original jury instructions; and two approximately 24 hours after they began deliberating.

[17] The latter two questions, which the jury asked during their deliberations, are the subject of the first two grounds of appeal. The first question addressed the trial judge’s jury instructions on intent. The second question addressed his instructions on reasonable doubt. These two questions are reproduced below:

[18] The trial judge completed his recharge to the jury on October 16, 2021, at 3:46 p.m. The jury returned with its verdict less than an hour and a half later, at 5:10 p.m.

Analysis

(1) The Conviction Appeal

[19] As the content of the appellant’s conversations with the witnesses was not in dispute, the only real issue at trial was whether the appellant intended to obstruct justice when speaking to the witnesses. The appellant submits that the trial judge made three errors in instructing and recharging the jury that prejudiced his defence in relation to that issue. I will address each alleged error in turn.

(i) Did the trial judge err in responding to the jury’s question about intent?

[20] The appellant submits that the trial judge erred by failing to clarify the jury’s first question, which related to intent. The appellant says that, as a result of this failure, the trial judge gave a confusing and incomplete answer about the elements of the offence, creating a risk that the jury could conclude that intent to obstruct justice was not an essential element of the offence.

[21] The appellant notes that the jury’s first question referred initially to “line/paragraph 155” of the jury instructions and subsequently to “line 155 to 157 inclusive” but asked only whether “that” is “a necessary condition of guilt?”

[22] However, paras. 155 to 157 of the jury instructions addressed three distinct points:

i) using foreseeability of consequences as a method of inferring intent (para. 155); ii) the categories of evidence to be considered in determining intent [e.g. what the appellant did or did not do, said or did not say] (para. 156); and iii) the requirement of finding intent to obstruct justice to convict (para. 157).

[23] The appellant submits that the jury’s question was ambiguous because it referred to all three paragraphs but did not specify whether the jury was asking whether using foreseeability of consequences to infer intent as referred to in para. 155, the requirement of finding intent to obstruct justice as referred to in para. 157, or both, were a necessary condition of guilt. Moreover, the trial judge’s answer was incomplete because he focused on para. 155.

[24] The appellant acknowledges that the trial judge recharged the jury correctly in telling them that para. 155 of his charge did not set out an essential element of the offence. However, the trial judge said nothing substantive about paras. 156 and 157 but merely repeated them. Thus, says the appellant, the trial judge failed to clarify any possible confusion the jury may have had about whether those paragraphs, in particular para. 157 that sets out the requirement of finding an intent to obstruct justice, constituted an essential element of the offence.

[25] According to the appellant, the trial judge compounded this error by making the following concluding statement suggesting none of paragraphs 155‑157 were a necessary condition of guilt:

So, that’s I think what I can say about those paragraphs . It’s not a necessary condition of guilt …. [Emphasis added.]

[26] The appellant submits that, in the result, in response to what was an ambiguous question from the jury, the trial judge failed to clarify that para. 157 sets out an essential element of the offence and made a misleading statement suggesting that it did not.

[27] I would not accept these submissions for two reasons.

[28] First, I reject the submission that the jury’s first question required clarification or could realistically have been referring to the requirement set out in para. 157 of the jury instructions of finding that the appellant wilfully intended to obstruct justice in order to convict.

[29] As a starting point, I note that not only the trial judge but also the trial Crown and defence counsel at trial interpreted the jury’s question as being directed at para. 155. While not conclusive, the trial participants’ views are an important factor in assessing whether the jury’s question was in any way ambiguous.

[30] Further, although the jury’s first question goes on to refer to “line 155 to 157 inclusive” of the charge after referring to line/para. 155, the structure of the question makes it clear that the focus of the questions was para. 155:

[31] Equally important is the fact that, when considered in context, it is obvious that para. 157 is repeating an earlier instruction that intent to obstruct justice is an essential element of the offence and a finding the jury must make in order to convict.

[32] Paragraphs 155 to 157 of the jury charge, referred to in the jury’s question, appear in the section of the jury charge addressing the elements of the offence. This section of the charge began at para. 132, where the trial judge instructed the jury that to find the appellant guilty the Crown had to prove two essential elements of the offence beyond a reasonable doubt:

(1) that [the appellant] engaged in conduct that had a tendency or tended to obstruct, pervert or defeat the course of justice with respect to [the complainant]; and (2) that [the appellant] wilfully intended, by his conduct to obstruct , pervert, or defeat the course of justice with respect to [the complainant]. [Emphasis added.]

[33] The trial judge began discussing intent, the second essential element of the offence, at para. 152 of the charge, where he framed this second element in the form of a question: “did [the appellant] wilfully intend to obstruct the course of justice with respect to [the complainant]?” (emphasis in the original).

[34] At para. 155 of the charge, the trial judge explained that if a person foresees that their conduct is substantially certain to obstruct justice with respect to the complainant it may be reasonable to conclude that the person intended to obstruct justice with respect to the complainant.

[35] At para. 156, the trial judge explained the evidence the jury should consider to determine the appellant’s state of mind.

[36] Para. 157 of the charge, addressing the requirement of a finding of intent, reads as follows:

If you are not satisfied beyond a reasonable doubt that [the appellant] wilfully intended to obstruct , pervert, or defeat the course of justice with respect to [the complainant] you must find [the appellant] not guilty . However, if you are satisfied beyond a reasonable doubt that [the appellant] wilfully intended to obstruct , pervert, or defeat, the course of justice with respect to [the complainant], you must find [the appellant] guilty of the alleged offence of wilfully attempting to obstruct the course of justice with respect to [the complainant]. [Emphasis added.]

[37] Particularly when considering this instruction in the context of the immediately preceding instructions, which the jury had before them in writing, I fail to see any realistic possibility that the jury could have been confused about whether they had to be satisfied beyond a reasonable doubt that the appellant intended to obstruct justice as “a necessary condition of guilt”. Paragraph 157 makes it clear that they did. Their question was directed to whether para. 155, addressing using foreseeability of consequences to infer guilt, formed a part of that “necessary condition of guilt.”

[38] Second, I am satisfied that when read in its entire context, the trial judge’s concluding statement to the jury could not have misled them into thinking intent was not “a necessary condition of guilt.”

[39] In response to the jury’s first question the trial judge told them that para. 155 was not a “necessary element of guilt” and that “it” was found in the discussion of the second essential element of the offence: did the appellant “wilfully intend to obstruct … the course of justice with respect to [the complainant]”.

[40] The trial judge then re-read to the jury para. 132 of the jury instructions, which set out the two essential elements of the offence, as set out above, and said:

So, the – the second element of this is focused upon what intention [the appellant] may have had at the time he engaged in – in the conduct in question.

[41] The trial judge told the jury that, with that context, he would go back and read out the paragraphs mentioned in their question. First, he re-read para. 155 of the jury instructions and then explained,

[B]y the language in that paragraph it’s clear that … it’s not an essential element, it is a mechanism that is designed to try and help you assess what intention [the appellant] may or may not have had.

[42] Next, the trial judge re-read paras. 156 and 157, the other paragraphs the jury mentioned in their question. He then concluded:

So, that’s , I think, what I can say about those paragraphs . It’s not a necessary condition of guilt, it’s in the discussion of the second essential element , and it’s designed to focus you on the question of - of - of [the appellant’s] intention at the time and what intention he had to have in order for you to find him guilty of the alleged offence . [Emphasis added.]

[43] When these instructions are read as a whole and read in the context of the jury’s question, I have no doubt that the jury understood that para. 155 of his instructions was not an essential element of the offence but that the Crown was required to prove beyond a reasonable doubt that the appellant intended to obstruct justice to find him guilty.

(ii) Did the trial judge err by failing to provide guidance to the jury in response to a question about reasonable doubt and by discouraging further jury questions about the issue?

[44] For ease of reference, I repeat the jury’s second question:

Question 2: Can you provide us clarification on what is reasonable doubt? Examples would be helpful.

[45] The trial judge gave the jury standard instructions on reasonable doubt in his original charge in accordance with Lifchus [4] and Starr [5]. Rather than attempting to clarify his original instructions on reasonable doubt the trial judge told the jury that the language of the instruction had “been the subject of some controversy over the course of time” and that the concept was not easy and something that jurors had “wrestled with”.

[46] He said the language he used was “the articulation of the standard that has been recognized by the courts in this land for years” and it was “not a good idea for [him] to try and reinvent the wheel”. He explained that examples would not be helpful and said he could not “clarify this at all”. All he could do was repeat what he had said in his original charge. After doing so, he said:

So, that’s what I told you about this standard before, and that’s, I think, all I can tell you about it again. I appreciate that that may not be of the greatest of assistance to you, but it’s – it’s, I think, all I can – I can do in the circumstances.

[47] The trial judge then exhorted the jury to reach a verdict in response to their comment, as part of their first question, that they had reached an impasse.

[48] The appellant argues that the trial judge committed three errors in responding to the jury’s question.

[49] First, the trial judge failed to provide counsel with a meaningful opportunity to make submissions on his response to the jury’s second question but instead advised counsel that he was “not inclined” to provide examples or “weigh in” on what reasonable doubt might be.

[50] Second, the trial judge failed to even attempt to provide the jury with assistance by using different language to help clarify the concept of reasonable doubt. Especially since the jury had the jury charge in writing and had been deliberating for about 24 hours, the trial judge should have provided some assistance to the jury in terms of additional language that could help clarify the concept.

[51] Finally, the trial judge’s repeated statements that he could not further clarify the concept or provide examples undoubtedly discouraged the jury from returning to the court if they had further questions.

[52] I would not accept these submissions.

[53] Although I acknowledge that the trial judge displayed early reluctance to do more than repeat his original instructions, trial counsel for the appellant did not suggest he adopt a different approach but rather endorsed his decision to repeat his original instructions. Had trial counsel shared the concern expressed on appeal about the trial judge’s approach, I am confident he would have voiced it.

[54] In my view, the trial judge did not err in repeating his original instructions to the jury. As the trial judge recognized, it is not uncommon for juries to raise questions about the standard instructions on reasonable doubt. The jury asked for clarification and examples. They did not say they did not understand any of the concepts involved, which would have required an explanation [6]. The trial judge’s response clarified for the jury that they were not missing anything – they simply had to accept his instructions and apply the concept to evidentiary record before them. As the trial judge explained:

• a reasonable doubt is not a far-fetched or frivolous doubt;
• it is not based on sympathy or prejudice, but rather on reason and common sense;
• probable guilt is not sufficient;
• while absolutely certainty is nearly impossible and a standard that is impossibly high, proof beyond a reasonable doubt is much closer to absolute certainty than to probable guilt; and
• if at the end of the case and after considering all of the evidence the jury was sure the appellant committed the offence, they should find him guilty. However, if, based on all the evidence or the lack of evidence they were not sure he committed the offence, they should find him not guilty.

[55] Considered in light of these instructions, I fail to see how alternate wording such as has been suggested by the appellant – e.g. firmly convinced of guilt; very, very sure of guilt – would have assisted the jury.

[56] Finally, I am not persuaded that the trial judge’s instructions would have dissuaded the jury from asking a question about a specific concept if it had such a question or wanted more assistance from the trial judge. The appellant does not suggest that the trial judge should have tried to provide examples. Such efforts have led to difficulties in the past: see for example, R. v. Bisson, [1998] 1 S.C.R. 306, at pp. 310-311; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 98. The jury in this case demonstrated, by asking questions both during the evidentiary portion of the trial and while the jury instructions were being delivered, that they had no hesitation in seeking clarification of matters it did not fully understand. If the jury required additional help, I have no doubt they would have asked an additional question.

(iii) Having admitted the Code of Conduct, did the trial judge err by failing to instruct the jury on its relevance and permissible uses in assessing the Crown’s case?

[57] As I have said, the trial judge admitted the Code of Conduct into evidence at the conclusion of the Crown’s case. The Crown subsequently cross‑examined the appellant about his familiarity and compliance with the Code . However, the Crown did not refer to the Code in her closing address to the jury. In his closing address, defence counsel at trial said only that the appellant did not violate it.

[58] In his jury charge, the trial judge explained that the Code of Conduct is a regulation that governed the appellant’s conduct as a licensed private investigator and highlighted the three provisions set out above (the obligations of honesty and integrity, to comply with laws, and the obligation to respect the privacy of others by treating information as confidential except where disclosure is required as part of the work or by law).

[59] Further, at the request of defence counsel at trial, the trial judge provided the jury with two specific instructions concerning the Code of Conduct.

[60] First, during his instructions on the essential element of intent; the trial judge confirmed that a simple error in judgment or breach of an applicable code of ethics would not be enough to establish an intent to obstruct justice:

It is not enough that what [the appellant] did accidentally obstructed … justice with respect to the complainant. Nor is it enough that what [the appellant] did had the effect of obstructing … justice with respect to the complainant. Nor is it enough that [the appellant] made a simple error in judgment or breached an applicable code of ethics .

The requirement that the actions be done “wilfully” means that [the appellant] must know that what he is doing with these other individuals obstructs … justice with respect to the complainant], and he intends that it do so . [Italics in the original, underlining added.]

[61] Second, when subsequently explaining the Code of Conduct, the trial judge confirmed, in his concluding instructions on the issue, that breaching the Code would not automatically mean the appellant was guilty of the alleged offence:

Any breach of [the Code of Conduct] will not, of course, automatically mean that [the appellant] is guilty of the alleged offence of wilfully attempting to obstruct the course of justice with respect to [the complainant].

…[T]here is no dispute between the parties that [the Code of Conduct] governed the conduct of [the appellant] as a private investigator, at all relevant times. Although nobody gave evidence about it, you must treat [the Code of Conduct] as proven. Consider [the Code of Conduct] together with all of the other evidence, in reaching your decision in this case. [Emphasis added.]

[62] On appeal, the appellant argues that the trial judge made three errors in his instructions to the jury concerning the Code of Conduct.

[63] First, the appellant submits that the trial judge erred in failing to explain how the Code of Conduct related to the elements of the alleged offence. Having admitted the Code of Conduct by way of judicial notice, the appellant contends it constituted evidence. In a jury trial, a trial judge is obliged to explain how the evidence relates to the elements of the offence. This was not a case where the appellant’s obligations under the Code overlapped with the elements of the offence. In the absence of an explanation concerning how the jury should use the Code to assess the appellant’s guilt or innocence, it was no more than an irrelevant distraction that could prejudice their deliberations.

[64] Second, having left the Code of Conduct with the jury, the trial judge erred by failing to instruct them it was necessary that they determine, as a factual matter, whether the appellant breached, or intended to breach, his obligations under the Code and by failing to give the jury instructions that would permit them to make this determination. The appellant was cross-examined about his compliance with the Code of Conduct. He explained his understanding that releasing information about the witnesses to the defence lawyer would not breach his confidentiality obligation under s. 2(1) (h) of the Code . However, without any instruction from the trial judge concerning the meaning of that provision, the jury may have assumed that the appellant intended to breach his confidentiality obligation. The trial judge should have instructed the jury that they had to determine whether the appellant breached, or intended to breach, his confidentiality obligation and should have provided them with instructions on the meaning of s. 2(1) (h) that would have permitted them to do so.

[65] Third, the trial judge erred by failing to instruct the jury that if they found the appellant breached, or intended to breach, his obligations under the Code of Conduct that was not decisive of the issue of intent. Rather, even if they made such a finding, it was necessary that they go further and determine whether the appellant intended to obstruct justice.

[66] I would not accept these submissions.

[67] When the Crown asked that the Code of Conduct be admitted into evidence it was unclear whether the appellant would testify and, if he did, what he would say. In their submissions on the admissibility of the Code of Conduct, trial counsel acknowledged that any potential breach of the Code by the appellant would not mean he was guilty of the alleged offence.

[68] The trial judge admitted the Code of Conduct to provide context for the jury. Without this evidence, in his view, the jury would have been left to form their own views concerning the professional obligations and responsibilities of a private investigator or act on the statements concerning the same made by the appellant in recorded conversations with the witnesses. The jury could be instructed in a manner that would avoid any potential prejudice to the appellant.

[69] Particularly given the appellant’s evidence at trial, the provisions of the Code of Conduct highlighted by the trial judge ultimately had limited relevance to the live issues in the case that the jury had to determine. The appellant acknowledged he was bound by the Code of Conduct and said he was somewhat familiar with it. He stated his understanding that he was entitled under the Code to disclose any information he discovered to the defence lawyer and maintained that he did not intend to publicly disclose such information or convey to the witnesses that he intended to do so. The issue for the jury concerning the appellant’s statements to the witnesses was not whether he breached, or attempted or intended to, breach his confidentiality obligation under the Code of Conduct. Rather, it was whether he intended to intimidate the witnesses through his statements and thereby obstruct justice. The Code of Conduct provided context to assist the jury in evaluating the evidence relating to that issue.

[70] I see no basis on which to conclude that the trial judge made any error in his instructions to the jury about the Code . He gave the jury clear instructions on the elements of the offence and cautioned them, in the manner requested by defence counsel at trial, that a breach of any code of ethics would not be sufficient to demonstrate an intention to obstruct justice. Nor would a breach of the Code of Conduct mean automatically that the appellant was guilty of the alleged offence. I observe that the Crown did not rely on a breach of the Code of Conduct to support a finding of guilt in her closing submissions to the jury. A finding that the appellant breached the Code was not an element of the offence and the trial judge was not obliged to instruct the jury they had to make such a finding to make a finding of guilt.

[71] I would not give effect to this ground of appeal.

(2) The Sentence Appeal

[72] At the sentencing hearing, the Crown sought a sentence of three to three‑and-a-half years imprisonment. The defence sought a six-month conditional sentence. The trial judge characterized the two positions as “extreme” and said neither would constitute a fit and appropriate sentence.

[73] Before turning to his analysis, the trial judge reviewed the circumstances, of the offence, the complainant’s victim impact statement, the circumstances of the offender and general principles of sentencing.

[74] While discussing the circumstances of the appellant, the trial judge rejected a defence submission that the appellant would automatically lose his private investigator’s licence as a result of his conviction. In regulations under the Private Security and Investigative Services Act, 2005 [7], wilfully attempting to obstruct justice is not in a list of prescribed offences which prevent someone from holding a private investigator’s licence. However, the trial judge recognized that the Registrar of Private Investigators and Security Guards nonetheless has discretion to revoke, suspend or refuse to renew the appellant’s private investigator’s licence for several reasons arising from his conviction.

[75] However, as the appellant still had his licence at the time of sentencing, the trial judge held he could not sentence the appellant in light of some future circumstance that may or may not come to pass.

[76] In his analysis, the trial judge noted the appellant was a first offender with “excellent prospects for rehabilitation”. He said the offence was clearly out‑of‑character for the appellant who appeared to pose no future threat to the community. The trial judge also expressed confidence that the appellant would continue to work on his mental health issues to which the trial judge had alluded when reviewing the circumstances of the offender. The trial judge observed that these considerations would generally make rehabilitation and individual deterrence the main sentencing considerations, which would usually lead to shorter terms of imprisonment to be followed by helpful probationary assistance.

[77] However, the trial judge went on to note that the offence of which the appellant had been convicted was a serious criminal offence, committed against the administration of justice, by someone who should have known much better. He said it is “clearly not ” the responsibility of a retained private investigator to “threaten and intimidate (even impliedly)” so they will not testify or try to end the prosecution against an accused. To the extent this important message needed to be sent to private investigators and clearly heard by the appellant, the sentence imposed had to proportionally reflect the gravity of the offence and express the necessary level of denunciation and deterrence.

[78] The trial judge cited this court’s decision in R. v. Hopwood, 2020 ONCA 608, 152 O.R. (3d) 643, as making clear the need for denunciation and deterrence. Although he acknowledged that most of the legislative requirements for imposing a conditional sentence were met and that a conditional sentence may in some circumstances provide the necessary elements of general deterrence and denunciation, he concluded that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing in all the circumstances of this case. In particular, imposing a short six-month conditional sentence as requested by the defence, would send “entirely the wrong message” to private investigators in Ontario.

[79] The appellant seeks to file fresh evidence on appeal confirming that he has now lost his private investigator’s licence and relating to certain health issues.

[80] I would accept the appellant’s submission that the trial judge erred in principle in overemphasizing deterrence and in imposing a sentence that was disproportionate and manifestly unfit in the circumstances of this case. I would also admit the fresh evidence concerning the appellant’s loss of his private investigator’s licence and conclude that it is a relevant collateral consequence that I may take account of in considering the appropriate sentence to impose. In all the circumstances, I consider it unnecessary to decide whether the balance of the fresh evidence should be admitted.

[81] This was not what might be described as a typical case of obstructing justice in which the appellant had any form of personal interest in the outcome of the case against the client. Rather, the appellant had no connection to the case he was hired to investigate but, perhaps because of his limited experience in conducting investigations involving criminal offences [8], his conduct far exceeded the boundaries of the task he was hired to perform.

[82] While the sentencing judge emphasized the need to send a message to private investigators, and to the appellant in particular, that the appellant’s conduct was completely unacceptable and would not be tolerated, there was no evidence of, nor did the trial judge refer to local familiarity with, the prevalence of this form of misconduct among private investigators. Moreover, as the trial judge observed, the appellant, a 62-year-old man at the time of sentencing, had an unblemished criminal record, excellent prospects for rehabilitation and appeared to pose no future threat to the community.

[83] The fresh evidence demonstrates that the appellant has lost his private investigator’s licence, and in my view, that was a foreseeable circumstance which the trial judge could have taken into account for two purposes. First, it shows he is unlikely to ever be in a position again to commit the offence of which he was convicted. Second, it is a collateral consequence of the conviction which the trial judge could have recognized when imposing sentence: see for example, R. v. Chung, 2019 ONSC 660, at para. 40. Although the Crown argues that the appellant has avenues of recourse to regain his private investigator’s licence, because of the nature of the offence of which he was convicted, I see no real possibility of that occurring. Similarly, I conclude that the trial judge should have recognized that the appellant losing his private investigator’s licence was a virtual certainty. [9]

[84] Taking account of all the circumstances of this case, in particular, the appellant’s status as a 62-year-old first offender, in my view, the “real jail” sentence of 18-months’ imprisonment imposed by the trial judge was disproportionate and manifestly unfit.

[85] I would substitute a conditional sentence of two-years-less-one-day for the 18-month jail sentence imposed by the trial judge.

[86] Prior to releasing these reasons, we asked the parties to make submissions on the appropriate terms of a conditional sentence if we allowed the sentence appeal.

[87] The parties agreed that, if the sentence appeal is allowed, a conditional sentence of two-years-less-one-day would be appropriate. They also agreed on proposed terms for the conditional sentence, save for the period of house arrest.

[88] The appellant submitted that a six-month period of house arrest would be fit. The Crown submitted that house arrest should be imposed for the full duration of the conditional sentence. In the alternative, if house arrest is imposed for less than the full duration of the conditional sentence, the Crown submitted that it should be replaced by a strict curfew of 7 p.m. to 7 a.m. for the remainder of the conditional sentence. The Crown asserts that because of the serious nature of the offence, a conditional sentence with a strong denunciatory impact is required.

[89] I agree that the nature of the offence makes denunciation a significant sentencing factor. I conclude that a twelve-month period of house arrest, combined with a 7 p.m. to 7 a.m. curfew for the remaining duration of the conditional sentence will impose an appropriate measure of denunciation.

[90] For the reasons I have explained, this was not a typical case of obstructing justice, and the appellant has also experienced significant collateral consequences from his conduct. In addition to the sentence of imprisonment, the trial judge imposed a three-year period of probation that included a requirement that the appellant complete 180 hours of community service. In all the circumstances, I am satisfied that the combination of terms I propose, plus the probation order, will accomplish the sentencing goals of denunciation, deterrence and rehabilitation: see for example R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 161, at para. 130. The other terms of the conditional sentence order agreed upon by the parties are appropriate.

Disposition

[91] Based on the foregoing reasons, I would dismiss the conviction appeal, grant leave to appeal sentence and substitute a conditional sentence of two‑years‑less-one-day imprisonment for the 18-month jail sentence imposed by the trial judge on the terms set out in the amended proposed conditional sentence order attached. I would order that all other terms of the sentence imposed by the trial judge remain in full force and effect.

Released: June 23, 2023 “J.S.” “Janet Simmons J.A.” “I agree. P. Lauwers J.A.” “I agree. B. Zarnett J.A.”

APPENDIX “A”: PROPOSED CONDITIONAL SENTENCE ORDER [10]

C70349

COURT OF APPEAL FOR ONTARIO THE HONOURABLE JUSTICE SIMMONS THE HONOURABLE JUSTICE LAUWERS THE HONOURABLE JUSTICE ZARNETT

____DAY THE ____ DAY OF ____, A.D. 2023

IN THE MATTER OF MITCHELL DUBROS (D.O.B.[OMITTED]) , convicted on the 16 th day of October 2021 at the City of Toronto by the Honourable Justice K. Campbell, sitting with a jury, for the following offence: obstruct justice (s. 139(2));

ADULT CONDITIONAL SENTENCE ORDER Criminal Code, ss. 742.1 and 687

IT IS ORDERED THAT the Appellant, Mitchell DUBROS, is subject to a Conditional Sentence Order of two years less one day commencing the date of this order and on the following conditions:

1. Keep the peace and be of good behaviour;
2. Appear before the Court when required to do so by the Court;
3. Report in person within three working days of the date of this Order to a conditional sentence supervisor at Don Mills Probation and Parole Office, 109 Railside Road, Suite 200, Toronto, Ontario, and thereafter report when required by your supervisor and in a manner directed by the supervisor;
4. Remain in Ontario unless you obtain prior written permission from the Court or your supervisor to leave Ontario;
5. Notify the Court or your supervisor in advance of any change of name or address;
6. Promptly notify the Court or your supervisor of any change of employment or occupation;
7. Sign any consents necessary to permit your supervisor to monitor your compliance and provide proof of compliance to your supervisor upon request;
8. Reside at [OMITTED] or another residence approved in advance by your supervisor and do not change residence without obtaining approval in advance from your supervisor;
9. For the first TWELVE MONTHS of the Conditional Sentence Order remain on the property of your residence at all times, and for the balance of the Conditional Sentence Order remain on the property of your residence between the hours of 7:00 p.m. to 7:00 a.m., EXCEPT: a. For medical emergencies involving you or a member of your immediate family; b. For medical treatment or appointments with your medical doctor, physiotherapist, occupational therapist, counsellor/psychologist, psychiatrist, or other health professional(s) you have identified in advance to your supervisor; c. For meetings with your lawyer; d. For acquiring the necessities of life between 11am and 5pm on Saturdays; e. For travelling directly to, attending, and returning directly from employment approved in advance by your supervisor; and f. For the purposes of complying with this Conditional Sentence Order;
10. Do not contact or communicate with [OMITTED] in any way, directly or indirectly, by any physical, electronic, or other means;
11. Do not attend within 250m of anywhere [OMITTED] live, work, attend school, or any place you know them to be; and
12. Do not possess any weapons as defined by the Criminal Code.

Variation

You or the Prosecutor may propose changes to the Conditional Sentence Order upon notice to the other party and the Court in accordance with the procedures in Criminal Code s. 742.4.

Warning

Be warned that refusal or failure, without reasonable excuse, to comply with any condition of this Conditional Sentence Order may result in arrest or imprisonment for the remainder of your sentence. The Court may change or suspend the conditions of the Conditional Sentence Order.

[1] Some but not all of the colleagues and friends to whom the appellant spoke were scheduled to be witnesses at the proceeding against the client. The term “witnesses” is used for convenience only. [2] Defence counsel at trial did not argue that the Code of Conduct could not be introduced at trial. Rather he asserted it could not simply be filed as part of the Crown’s case without expert evidence explaining how it applied. In the alternative, if the appellant testified, the Crown could use it to cross-examine him. [3] Section 17 reads: Judicial notice shall be taken of all Acts of the Imperial Parliament, of all ordinances made by the Governor in Council, or the lieutenant governor in council of any province or colony that, or some portion of which, now forms or hereafter may form part of Canada, and of all the Acts of the legislature of any such province or colony, whether enacted before or after the passing of the Constitution Act, 1867. [4] R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39. [5] R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at paras. 241-243. [6] See, for example, R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, in which the jury asked for clarification of the difference between the standards of proof beyond a reasonable doubt and proof on a balance of probabilities. [7] O. Reg. 37/08: Eligibility to Hold a Licence – Clean Criminal Record. [8] Mr. Dubros’ evidence was that he typically did a lot of insurance fraud work and issues relating to child custody. He testified that he did not do many criminal investigations. He received this assignment from the defence lawyer only a few weeks before the preliminary inquiry. [9] Private Security and Investigative Services Act, 2005, ss. 13(2)2, 13(2)5. [10] This proposed order has been redacted to omit private information.