Court File and Parties

Court File No.: CR-20-70000125 Date: 2022-03-01

Ontario Superior Court of Justice

Between: Her Majesty The Queen - and - Mitchell Dubros

Counsel: Katherine Beaudoin, for the Crown Frank Addario, for the accused

Heard: February 1, 2022

Before: K.L. Campbell J.

Reasons for Sentence

A. Introduction and Overview

[1] The accused, Mitchell Dubros, was found guilty, by a jury, in November of 2021, on one count of wilfully attempting to obstruct the course of justice. More particularly, the jury found the accused guilty of an indictment that alleged that the accused, between February 10 and March 4, 2018, at the city of Toronto, in the Province of Ontario, did wilfully attempt to obstruct, pervert, or defeat the course of justice with respect to Cynthia Mulligan, contrary to section 139(2) of the Criminal Code of Canada.

[2] For a period of months, Cynthia Mulligan had been involved in a romantic relationship with Mike Bullard. When this relationship ended, Mr. Bullard continued to contact Ms. Mulligan, contrary to her unequivocally expressed wishes. Eventually, he was charged with a variety of alleged offences including criminal harassment, making harassing telephone calls, and breach of an undertaking. Mr. Bullard ultimately retained a lawyer, Calvin Barry, to act on his behalf with respect to these alleged offences. In turn, Mr. Barry retained a licensed and experienced private investigator, Mr. Dubros, to assist in his defence of Mr. Bullard. More particularly, Mr. Dubros was retained by Mr. Barry to “dig up dirt” on Ms. Mulligan, and the other potential Crown witnesses in the case against Mr. Bullard, and then provide that information to Mr. Barry for his potential use in court.

[3] However, rather than conduct this private investigation, as he had been retained to do, the accused approached Ms. Mulligan, at her home, as well as a number of her friends and work colleagues, in their respective homes, without warning or appointment, in an apparent attempt to ultimately persuade and/or convince Ms. Mulligan to have the pending charges against Mr. Bullard withdrawn by the Crown, and to have the criminal proceedings against Mr. Bullard end in a “peace bond”. While Mr. Dubros honestly and openly identified himself, and expressly indicated that he did not intend to threaten anyone, in fact, his verbal communications with each of these various individuals (which were all surreptitiously recorded by Mr. Dubros) were quite reasonably construed, at least impliedly, as very threatening and intimidating to them. Ms. Mulligan, for one, had a high-profile job as a reporter for Citytv. Mr. Dubros suggested to her (and to her friends and colleagues) that he was a ruthless and experienced investigator, who could easily dig up the “skeletons” in their respective closets, and “sling hearsay”, “dirt” and other “garbage” against them in a way that would badly “taint” their personal and professional reputations, if his suggestions regarding the potential disposition of the charges against Mr. Bullard were not followed. Ultimately, however, this not-so-subtle “blackmail” tactic was unsuccessful, as Ms. Mulligan remained steadfast as a Crown witness against Mr. Bullard, who ultimately pled guilty to a charge of making harassing telephone calls to Ms. Mulligan, as well as some other alleged offences.

[4] The accused now appears for sentencing with respect to this offence. He is 62 years old and has no criminal record. The parties seek the imposition of vastly different sentencing dispositions. The Crown contends that, given the need for deterrence and denunciation, the accused should be given a penitentiary sentence in the range of three-years to three-and-a-half-years imprisonment. At the opposite extreme, defence counsel argues that, because of the many mitigating circumstances of this case, the accused should be given a six-month long conditional sentence that he can serve at home, with generous exceptions permitting him to periodically be at large in the community for a wide variety of reasons.

[5] In my view, neither of these two extreme positions would lead to the imposition of a fit and appropriate sentence for Mr. Dubros in all of the circumstances of this case. Rather, those extreme positions would result in the imposition of a sentence that would wrongly focus only on certain aspects of this case. In my view, for the reasons that follow, the accused should be sentenced to a lengthy reformatory term of actual imprisonment and an even longer term of probation.

B. The Circumstances of the Offence

[6] At the trial of this matter, the parties reached an Agreed Statement of Facts, which specified, essentially, as follows:

• The accused has been a private investigator for approximately 30 years, and now owns a private investigation firm called “Investigation Hotline”.
• Private investigators and private investigation firms in Ontario are regulated by the Ministry of the Solicitor General and are subject to the Private Security and Investigative Services Act, 2005. This legislation and its accompanying regulations provided a “code of conduct” that governed the professional conduct of all private investigators (including Mr. Dubros), and which required the accused, inter alia, to respect the privacy of others by treating all information that he received as a private investigator as confidential, except where disclosure of the information was required by the work, or by law.
• On or about December 21, 2017, Michael Bullard retained Calvin Barry, a criminal defence lawyer in Toronto, to represent him on the following criminal charges: i) The criminal harassment of Cynthia Mulligan between June 13 and September 21, 2016, contrary to s. 264(2)(b) of the Criminal Code. ii) Making harassing telecommunications towards Cynthia Mulligan between June 13 and September 21, 2016, contrary to s. 372(4) of the Criminal Code. iii) Obstructing justice by indirectly contacting Cynthia Mulligan on October 12, 2016 in an attempt to have the complaint against him withdrawn, contrary to s. 139(2) of the Criminal Code. iv) Failing to comply with an undertaking to abstain from communicating with Cynthia Mulligan on October 12, 2016, contrary to s. 145(5.1) of the Criminal Code. v) Failing to comply with an undertaking to abstain from communicating with Cynthia Mulligan on October 16, 2016, contrary to s. 145(5.1) of the Criminal Code.
• In June of 2017, Mr. Bullard, with the assistance of a different lawyer at the time, scheduled a preliminary inquiry into his charges. The preliminary inquiry was scheduled to take place over April 16, 17, 19, and 20, 2018.
• In early February of 2018, Calvin Barry retained the accused, in his capacity as a private investigator, for Mr. Bullard’s case.
• On February 11, 2018, Mr. Dubros attended Ms. Mulligan’s house and had a conversation with her. He recorded that conversation. That evening, he called Ms. Mulligan’s phone and left her a voicemail.
• On February 16, 2018, Mr. Dubros attended Dave Eddy’s house and had a conversation with him. He recorded that conversation.
• On February 27, 2018, Mr. Dubros called James Tumelty on the phone and had a conversation with him. He recorded that conversation. James Tumelty also recorded the conversation, although not the entirety of it. That evening, Mr. Dubros called Mr. Tumelty’s phone and left him a voicemail.
• On February 27, 2018, Mr. Dubros called Pam Seatle on the phone and left her a voicemail. He called her a second time and had a conversation with her. He recorded that conversation.
• On March 3, 2018, Mr. Dubros attended Chris Mulligan’s house and had a conversation with him.
• During all of Mr. Dubros’ conversations with the above-named individuals, he was a licensed private investigator in the province of Ontario. The preliminary inquiry took place as scheduled on April 16, 17, 19, and 20, 2018. Mr. Barry represented Mr. Bullard at the preliminary inquiry. Both Ms. Mulligan and Ms. Seatle testified as witnesses for the Crown.

[7] Cynthia Mulligan was a journalist with Citytv for approximately 30 years and was still an “on-air reporter” at the time of trial. She worked with Ms. Pam Seatle throughout most of that time, until Ms. Seatle retired, and Ms. Mulligan noted that they had a fairly close relationship professionally. Similarly, Ms. Mulligan worked closely with Mr. James Tumelty, a cameraman with Citytv, nearly every day.

[8] Ms. Mulligan testified that, in 2015-2016 she dated Mike Bullard for about 8 months. According to Ms. Mulligan, their relationship ended in April of 2016. She explained that there was a “very challenging” end to their relationship, in that she eventually asked Mr. Bullard not to contact her anymore, and yet he continued to text her and call her on the phone. Ultimately, Ms. Mulligan went to the police to try to stop him from contacting her, but this seemed only to escalate his unwanted attentions, until he was charged with certain criminal offences.

[9] Ms. Mulligan testified at trial that she had wanted her personal life out of the news, and that was why she contacted the police in the first place. She did not want her life to be the “source” of news. However, Ms. Mulligan was going to have to testify, as a primary witness, at the preliminary inquiry in relation to Mr. Bullard’s criminal charges.

[10] Ms. Mulligan testified that, on the morning of Sunday, February 11, 2018, she had an unexpected meeting with the accused, in that he showed up at her home. When she answered the knock on her door, the accused introduced himself as Mitchell Dubros, and he said that he was working for a lawyer named Calvin Barry.

[11] Ms. Mulligan testified that, as a result of that conversation with Mr. Dubros, she felt like Mr. Dubros was “trying to manipulate” her, in that this was a “very frightening time” in her life, and yet Mr. Dubros was trying to “downplay” the events that she had been going through. When Mr. Dubros suggested to her that she did not want all this in the news again, she viewed that as a “veiled threat” to her, as he was “pushing” her to “make it go away.” Ms. Mulligan testified that, once Mr. Dubros had left her house that morning, she contacted main investigator with the Toronto Police Service, and told him what had happened. Ms. Mulligan was “very concerned” and the conversation she had had with the accused felt “very off-side” to her. She viewed the accused as just an “extension” of Mr. Bullard and it was like an “extension” of the “harassment.” It was a “terrible feeling” and the “veiled threats” from the accused “brought everything back.”

[12] Ms. Mulligan explained that she later heard a voice mail message from the accused. Ms. Mulligan interpreted this message as Mr. Dubros suggesting that he was “looking for dirt” on her, and that he would “use it if he could find it.” She thought that he was continuing to “downplay” the events in what was a “very challenging time” in her life. Ms. Mulligan explained that she felt that she was being “manipulated” by Mr. Dubros, and “pushed not to testify” against Mr. Bullard.

[13] Ms. Mulligan testified that she found this information “very unsettling” and thought that this was a “concerted effort to try to intimidate” her, and that Mr. Dubros was trying to “stop her from testifying” against Mr. Bullard. She did not think that there was any “dirt” about her, but she thought that Mr. Dubros was looking for “dirt” about her.

[14] Ms. Mulligan agreed that Mr. Dubros did not directly try to get her not to testify against Mr. Bullard. He did not tell her that directly. Further, she agreed that it was a “polite” conversation, in that he did not use any “threatening words” or “vulgarities.” He was not “hiding in the bush” at her house, and he introduced himself, and told her that he had been retained by defence counsel for Mr. Bullard. Ms. Mulligan testified, however, that the “undertone” of what he was saying was “not professional.” She felt like she was being “intimidated” into not testifying against Mr. Bullard and not proceeding with the trial. According to Ms. Mulligan, the accused seemed “incredibly off-side” to her, and “so wrong.” Ms. Mulligan testified, however, that she testified as a witness at Mr. Bullard’s preliminary inquiry, and was always going to testify, regardless of any veiled threats that were made against her, as it was the “right thing to do.” She was not going to be intimidated by anyone “no matter what.”

[15] James Tumelty, who has been a “news cameraman” for Citytv for 35 years, and who worked closely with Cynthia Mulligan her whole career, testified that he got a surprising phone call at home from the accused on the morning of February 27, 2018. Mr. Tumelty had never met the accused before. Mr. Tumelty explained that while he was not a “witness” in this matter concerning Mr. Bullard, there was a “high level of intimidation” in the conversation with Mr. Dubros that he was not comfortable with. According to Mr. Tumelty, Mr. Dubros seemed to be “threatening” to “dig up dirt” on people, including himself, Cynthia Mulligan and Pam Seatle, and transmit it “to other people.” The accused appeared to be trying to prevent Ms. Mulligan from testifying against Mr. Bullard, and “put an end” to the proceedings against him. Mr. Tumelty explained that they all lived in a “very transparent environment” and he thought that it might “impact on all of their careers.” They were all in “precarious positions” and he did not want anyone to lose their jobs or have their reputations “tarnished.” Mr. Tumelty subsequently contacted Ms. Mulligan, by text message, and told her about the telephone call from Mr. Dubros.

[16] Mr. Chris Mulligan, who had been married to Cynthia Mulligan, and who had two daughters with her, was a cameraman and satellite truck operator for CBC News. Mr. Mulligan testified that, on Saturday, March 3, 2018, the accused came to his house, with another man, around dinner time. When Mr. Dubros said that he wanted to ask him some questions about Cynthia Mulligan and their children, Mr. Mulligan abruptly ended their conversation, shutting the front door of his home and locking it.

[17] Pam Seatle, now retired, was someone who had worked as a “general assignment” television reporter for Citytv for more than 30 years. Ms. Seatle had worked with Ms. Mulligan for most of that time. They were colleagues and good friends. Ms. Seatle testified that, on February 27, 2018, she got a phone call, on her work cell phone, from Mr. Dubros while she was at work. Ms. Seatle thought it was a “relatively threatening conversation” in which the accused wanted her to speak to Ms. Mulligan and exercise some “influence” over her to make the proceedings against Mr. Bullard “all go away” and end in a “peace bond.” Subsequently, Ms. Seatle predictably told Ms. Mulligan about the call from Mr. Dubros. Subsequently, Ms. Seatle also heard a threatening voice mail message from Mr. Dubros, in which Mr. Dubros suggested that he would release information about her and “publicly embarrass her” by “digging into her personal life.”

C. The Victim Impact Statement by Ms. Mulligan

[18] Cynthia Mulligan provided a poignant “victim impact statement” in this case. In this written statement, which she read orally to the court at the sentencing hearing in this matter, Ms. Mulligan indicated that she resented having to spend a day testifying against the accused, and being in court to read her victim impact statement, while she was going through her cancer treatment, was dealing with the side-effects of her daily chemotherapy, and trying to “stay positive” while being “taken back” to a “time of stress” that she “never wanted to think about again.” Ms. Mulligan indicated, however, that she believed in our justice system, one of the “pillars of our democracy,” and that the accused was found guilty of abusing it with his actions. Ms. Mulligan explained that the accused “tried to scare [her] into silence” so that she would not testify against Mr. Bullard. The accused tried to get her to “back down” and “stop [her] from standing up for what was right” – and he “pulled the same grotesque tactics on [her] friends and colleagues.” The conduct of the accused, Ms. Mulligan suggested, was “reprehensible.”

[19] Ms. Mulligan indicated that she was “appalled” by the thought that the accused would still be able to keep his license as a private investigator, even if he were sent to jail for this offence. Ms. Mulligan indicated that her “biggest fear” was that the accused might “do this again to other victims” given his “complete and utter disregard for truth, justice and democracy.”

[20] Ms. Mulligan indicated that it was hard enough for women to come forward and “face an abuser” in the courts, but the actions of the accused “added a whole other level of stress” which was “clearly his intention.”

[21] To be “crystal clear,” Ms. Mulligan indicated that she never wanted the accused to come near her, or her family or friends or colleagues ever again, but she hoped that he would “examine his actions and be a better man in the future.”

D. The Personal Circumstances of the Offender

1. The Accused in the Early Years

[22] The accused is now 62 years old. He does not possess any criminal record. He grew up in the “Forest Hill” area of Toronto. He and his older sister grew up in a stable and rewarding home environment.

[23] The accused left the family home to live independently when he was 20 years of age. He dropped out of high school during his grade 10 year, in spite of his parent’s disapproval, in order to start his paper products delivery business called “Just in Case,” which he operated successfully for about a decade.

[24] During this time period, the accused married, but they ultimately amicably divorced, after realizing that they wanted “different things.” The accused’s ex-spouse described him to the author of the Pre-Sentence Report, as “kind, compassionate and reliable.” She was surprised to learn of his involvement in this offence.

[25] Following his divorce, the accused became involved in a serious romantic relationship with another woman, but that ended after approximately six years, when they “grew apart.”

2. The Accused is Currently a Licensed Private Investigator

[26] The accused first became involved in the investigation business in 1988. The accused indicated that he started the business, genuinely wanting to help people, and tried to help locate others. This developed into private investigation work and surveillance. However, the accused denied being motivated by money, and maintained that he continues to want to help people. The accused explained that the people that access his business are “desperate” and he tries to make suggestions to them that will resolve and mediate their problems – without resorting to surveillance. The accused maintained that he “helped shape the private investigation and security guard industry” by becoming involved in “standardizing licensing regulations.”

[27] After the commission of this offence, the accused started an online “referral agency” called “Investigation Hotline.”

[28] There is some question as to whether (or not) the accused will be able to keep his license as a private investigator. The parties made oral submissions about this issue at the sentencing hearing, and subsequently provided me with some additional written submissions on this topic. Initially, defence counsel argued that one of the mitigating circumstances of this case, that had to be considered in sentencing the accused, was that he would automatically lose his private investigator’s license. Having considered all of those submissions, my view of the matter is that: (1) the accused will not automatically lose his license as a private investigator as a result of his conviction for wilfully attempting to obstruct the course of justice; (2) but that the Registrar may ultimately revoke, or refuse to renew, his license as a private investigator as a result of his conviction for this offence.

[29] More particularly, my understanding of the relevant provincial legislation and their accompanying regulations is as follows:

• No one can hold a licence as a private investigator under the Private Security and Investigative Services Act, 2005, S.O. 2005, chap. 34, if they do not have a “clean criminal record” [ss. 10(1)(a) and 10(5)]. The term “clean criminal record” is a specifically defined term under O/Reg. #37/08, with a list of prescribed criminal offences which prevent someone from having a “clean criminal record,” but this listed definition does not include a conviction for the offence of “wilfully attempting to obstruct the course of justice” contrary to s. 139 of the Criminal Code – accordingly, the accused’s license is not automatically revoked or suspended, by operation of law, by virtue of his conviction for this offence;
• The “Registrar” of Private Investigators and Security Guards has the discretion to revoke or suspend a private investigators licence [s. 15(1)] for any reason for which a licence could be refused or not renewed under s. 13(2), including where there are “reasonable grounds to believe that the applicant will not carry on business in accordance with the law and with integrity and honesty,” or if the licensee is in breach of a license condition;
• The “Registrar” may also decline to issue or renew a private investigator’s license where an applicant “has been convicted of or found guilty of an offence under a law of Canada” for which the applicant has not been pardoned [s. 13(2)];
• The “Registrar” may also decline to issue or renew a private investigator’s license where it is “in the public interest to refuse to issue or renew the licence” [s. 13(2)].
• A person who applies to the “Registrar” for the issuance or renewal of a license must, amongst other things, provide a declaration listing all of their convictions for and findings of guilt for offences under the law of Canada for which the person has not been pardoned [s. 11(1)(c)] – also the “Registrar” may require an applicant to provide their “fingerprints,” a “clearly recognizable photograph” of themselves, and a “criminal record check” in support of any such application [s. 11(2)].
• An applicant who meets the requirements of the Private Security and Investigative Services Act, 2005 and its regulations is entitled to issuance or renewal of a licence [s. 13(1)]. However, O/Reg. #363/07, which contains the “code of conduct” for private investigators, requires the licensee to comply with, among other things, all federal laws; and
• If a licence holder is about to have their licence revoked or suspended by the Registrar, they are entitled to notice and, if they ask for it, a hearing where they may attempt to “show cause” why the Registrar should not take the proposed action [s. 16].

[30] In any event, the accused’s license as a private investigator is clearly not presently suspended or revoked, but that situation may (or may not) change in the future, depending upon any future actions that may (or may not) be undertaken by the Registrar.

[31] Perhaps needless to say, however, I cannot now impose a sentence upon the accused in light of some future potential circumstance that may (or may not) eventually come to pass. Rather, I must impose a sentence upon the accused based upon the facts as they now are – the accused is now a licensed private investigator, notwithstanding his conviction for this offence.

3. The Accused More Recently – His Accident and His Mental Health Challenges

[32] As the author of the Pre-Sentence Report noted, the accused is now single and surrounds himself with close and supportive friends. He has no children.

[33] The elderly parents of the accused passed away in 2020, within a few weeks of each other. The accused had been their “caregiver” prior to their deaths. The fact that his sister distanced herself from their parents prior to their deaths, put a strain on the relationship between the accused and his sister, and they “no longer speak” to each other.

[34] In the fall of 2020, the accused was involved in a serious motorcycle accident, suffering a broken shoulder, eight broken ribs, various lacerations over his body, and a “brain bleed.” Since the accident, the accused has endured two shoulder operations, and he experiences “memory issues and sudden mood changes such as anger and frustration.” He also has experienced trouble sleeping and headaches. He has had the benefit of treatment from an occupational therapist.

[35] Due to his “anxiety and depression” the accused has been in receipt of financial benefits from the Ontario Disability Support Program (ODSP) for the past 10 years. According to the accused, this is now his “main source” of income. The accused explained to the author of the Pre-Sentence Report that his financial circumstances are “strained” in that he is some $1.5 million in debt, largely due to the expenses he incurred in caring for his parents, and in getting corrective eye surgery in 2018.

[36] The accused has been seeing a psychiatrist for approximately the past decade for “depression and anxiety.” The accused has recently been taking “mood stabilizers” to help him sleep. According to the author of the Pre-Sentence Report, the psychiatrist described the accused as a “good man” who was “pleasant and kind” and not as a “threat to society or a violent man.” The accused has required some “extra support” due to his involvement with the courts.

[37] The accused’s psychiatrist prepared a written report dated January 28, 2022. In this report, the psychiatrist indicated that the accused had been “previously diagnosed with Bipolar Disorder in 2009” and that he “presented with symptoms which met the criteria for Bipolar Disorder.” The psychiatrist also indicated that the accused presented with the “flourished symptomology of anxiety and panic attacks and was diagnosed accordingly with Generalized Anxiety Disorder and Panic Disorder.” According to the psychiatrist, the accused complained of “poor appetite, poor sleep, poor energy and poor concentration” and “rapid mood swings and switching among irritability, joy and sadness,” and “panic attacks accompanied by shortness of breath, palpitations and tremors.”

[38] As to the “current condition” of the accused, the psychiatrist reported that the accused has been “deteriorating” since he has been under “severe stressors,” including “legal stressors” and “other life stressors leading to poor compliance and poor treatment and follow up plan.” The psychiatrist confirmed that the accused “lives with a number of mental health conditions, including bipolar disorder, a generalized anxiety disorder and a panic disorder.”

[39] The psychiatrist thought that it was likely that these mental illnesses “contributed to his behaviour at the time of the offence,” in that, in a manic episode, the accused may exhibit impulsive and erratic behaviour, with an impairment of his “insight and judgment,” having a “direct negative impact on his decision-making ability.”

[40] The psychiatrist concluded that the accused was a “good candidate for outpatient treatment in a community setting.” The psychiatrist also expressed the view that “any other disruptions” in the accused’s life and living arrangements, such as incarceration, would be “very counterproductive” to the therapeutic process, the psychiatric condition of the accused, the treatment plan, and the overall mental health and wellbeing of the accused. Of course, in determining the imposition of a fit and appropriate sentence, I must be concerned about myriad factors, and cannot focus solely on whether a sentence of imprisonment, if otherwise required, might temporarily interfere with the therapeutic process. In my view, the therapeutic process can, in this case, continue during the reformatory term of imprisonment imposed upon the accused, and can certainly continue thereafter during and after the probationary term imposed upon the accused.

[41] The accused described himself to the author of the Pre-Sentence Report as a “kind” and “considerate” man, who “used to be smart” before the motorcycle accident. The accused indicated that, while he had been involved in the private investigation business for some 30 years, he “had never had a complainant” about his conduct. With respect to the current offence, the accused maintained that “his heart was in the right place” but that his “mouth” was not. The accused expressed some remorse for “upsetting” the victim and stated that he “accepts full responsibility” for the offence.

[42] The accused recently learned to “fly drones” and has obtained his “beginners pilot license,” which hobbies he hopes he may be able to expand into a business in the future. The accused is concerned about a pending review of his private investigation license as a result of his criminal conduct in this case.

4. The Prior Good Character of the Accused

[43] Defence counsel also submitted a number of “character reference” letters drafted on behalf of the accused. In this collection of letters from the friends of the accused, he is described as a “good friend” who is “very loyal, kind, smart and helpful to other people.” He was also described as a “reliable, trustworthy and decent person” who is a man of “good character and integrity.” As a private investigator, the accused is described as “professional, empathetic, efficient and actually cares about his clients and their best interests.” It seems that the accused would rather do work “pro bono” when they cannot afford his services, than “not help the client.” In this regard, he may be “too honest,” given his “big heart.” “Ethics and truth are at the core of his operating standards.” The accused is described in these letters as being “courteous, very polite, patient, friendly, kind, efficient, knowledgeable, very helpful, competent and quick to solve” a client’s issue. The accused was also described as a wonderful “mentor” to others starting out or working in the private investigations business. The conviction of the accused, for wilfully attempting to obstruct the course of justice, seems to be an “isolated incident” not to be repeated, and contrary to his generally described good character.

E. The General Sentencing Principles

[44] According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[45] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[46] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles, including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

F. Analysis – The Appropriate Sentence

[47] As I have indicated, taking into account all of the circumstances of this case, in my view, the accused should receive a reformatory sentence of 18 months imprisonment. Such a sentence, in my opinion, appropriately balances the two fundamental competing considerations in this case, namely: (1) the need to focus upon the promising rehabilitative prospects of the accused, given that he is a first offender, with certain mental health challenges, and who will now be serving his first period of incarceration; and (2) the need to proportionally reflect the sheer gravity of the serious “obstruction of justice” offence committed by the accused, denounce such crimes, and deter others from their commission.

[48] The accused is a first offender with excellent prospects for rehabilitation. His involvement in this offence is clearly out-of-character for him. The accused has no history of such offences – or any offences for that matter – and appears to pose no future threat to the community. I am optimistic that, in the years to come, the accused will continue to work on his ongoing mental health issues, and will try to, once again, become a productive and contributing member of society, who will eventually be able to look back on his participation in this crime as a shocking aberration from his usual professional conduct. In these circumstances, rehabilitation and individual deterrence are generally considered to be the main sentencing considerations, and usually shorter terms of imprisonment are imposed, followed by helpful probationary assistance. See: R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont.C.A.); R. v. Vandale (1974), 21 C.C.C. (2d) 250 (Ont.C.A.); R. v. Demeter (1976), 32 C.C.C. (2d) 379 (Ont.C.A.); R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.).

[49] These are, however, not the only considerations. At the same time, the accused has been found guilty, by a jury of his peers, of wilfully attempting to obstruct the course of justice. Rather than properly perform his investigative responsibilities, as he had been retained to do, and as he has done in the past, the accused decided, for his own reasons, to embark upon a course of conduct that amounted to a clear attempt to effectively “blackmail” Ms. Mulligan into staying “silent” in relation to the misconduct of Mr. Bullard, and to be accepting of a “peace bond” as an end to the pending criminal proceedings against him. As the jury unanimously concluded, the accused wilfully attempted to obstruct the course of justice in relation to Ms. Mulligan. This was a serious criminal offence, committed against the administration of criminal justice, and committed by someone who should have known much better.

[50] Defence lawyers are responsible for engaging in any good faith negotiations with the Crown with respect to the potential resolution of criminal charges against their clients. It is clearly not the responsibility of any retained private investigator to personally threaten and intimidate (even impliedly) any Crown witness in a pending criminal case against an accused, so that they will not testify, or will try to end the criminal proceedings against the accused. To the extent that this important message needs to be sent to private investigators, and clearly heard and fully understood by Mr. Dubros, the sentence imposed upon this accused must proportionally reflect the gravity of his offence and must express the necessary level of denunciation and deterrence in relation to his wayward criminal conduct.

[51] As Nordheimer J.A. stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Hopwood, 2020 ONCA 608, 152 O.R. (3d) 643, at paras. 22-26:

I begin with the principle that efforts by accused persons (whether directly or through others) to interfere with witnesses strike at the very heart of our justice system. There are already very serious concerns regarding the willingness of people, who observe crimes, to come forward and offer themselves as witnesses. Concerns around the “code of silence”, and possible repercussions from being considered a “rat” or a “snitch”, often lead persons to remain silent when they ought to be coming forward and assisting the authorities to properly investigate and prosecute criminal activities.

Against that backdrop, interference with persons who are prepared to be witnesses only serves to exacerbate the problem. It must be clear to all accused persons that attempting to interfere in any way with a witness represents conduct that will not be tolerated. In that regard, I respectfully adopt what the British Columbia Court of Appeal said in R. v. Hall, [2001] B.C.J. No. 560, 2001 BCCA 74, per Saunders J.A., at para. 12:

Obstruction of justice or attempting to obstruct justice strikes at our system of a lawful society. The message must be clear that this type of interference with the community system for handling criminal offences will not be tolerated. It is for this reason that the courts must act firmly to express society's disapproval and denunciation of such conduct.

While there may be other conduct that would constitute an attempt to obstruct justice that would warrant a minor sentence of the type that was imposed here, attempting to interfere with a witness does not fall into that category. Indeed, I would say that, as a general proposition, attempting to interfere with a witness should normally attract a penitentiary term of imprisonment. I find support for that position in the fact that penitentiary terms of imprisonment are often imposed for persons who refuse to testify: R. v. Yegin, [2010] O.J. No. 1266, 2010 ONCA 238. If a person's personal choice not to give evidence can attract such sentences, then it seems to me that a person's choice to interfere with another person's right to testify should draw, at least, equal condemnation. In this case, therefore, the sentence sought by the Crown of two and one-half years was entirely appropriate.

On that latter point, I note that this court upheld a two-and-one-half year sentence for obstruction of justice in R. v. Williams, [2016] O.J. No. 6633, 2016 ONCA 937. That case was provided to the sentencing judge. The sentencing judge attempted to locate the trial judge's reasons for sentence, but he was unable to. This inability then led the sentencing judge [page650] to conclude [at para. 34] that "the appellate ruling in Williams is of no use to me in sentencing" the respondent.

With respect, it was not open to the sentencing judge to dismiss this court's decision in Williams in that fashion. While the particulars underlying the sentence may not have been available to the sentencing judge, he nonetheless had a decision of this court suggesting that the sentence being sought by the Crown with respect to the respondent was clearly one that was open to him. He also had this court's view of the seriousness of these types of offences.

[emphasis added throughout]

[52] In trying to reconcile these competing sentencing principles in the circumstances of the present case, however, I must reject the position advanced by the Crown. A three-year to three-and-a-half-year penitentiary term of imprisonment in this case would simply focus too much emphasis upon the need for denunciation and general deterrence, without sufficiently recognizing the “first offender” status of the accused, his mental health challenges, his previous good character, and his excellent prospects for rehabilitation. I say this acknowledging the serious aggravating circumstances of this case, and the clear need in the present case, as R. v. Hopwood makes plain, for denunciation and deterrence.

[53] At the same time, I must also reject the equally extreme position advanced by the defence. I accept, of course, that a conditional sentence under s. 742.1 of the Criminal Code may, in some circumstances, provide the necessary elements of general deterrence and denunciation. See: R. v. Proulx, 2000 SCC 5, [2000] 2 S.C.R. 61, 140 C.C.C. (3d) 449, at paras. 22, 41, 102-107; R. v. Daniels, 2015 ONSC 2520, [2015] O.J. No. 1917, at paras. 33-38. However, while most of the legislative elements of s. 742.1 of the Criminal Code are met in this case, a conditional sentence would not be “consistent with the fundamental purpose and principles of sentencing” in all of the circumstances. The imposition of a short, six-month conditional sentence in the present case would simply not have that important effect in all of the circumstances of this case. Sending the accused home, to serve a short sentence of “imprisonment” in the community, especially with the broad and far-ranging exceptions suggested by defence counsel, would only serve to inappropriately minimize the sheer gravity of the offence committed by the accused, and would send entirely the wrong message to private investigators practicing in Ontario about their important professional responsibilities.

[54] As I have indicated, in my view, an 18-month-long period of actual, reformatory imprisonment, followed by a lengthy period of probation, would more appropriately balance all of the relevant sentencing considerations in this case, including its various mitigating and aggravating circumstances. In the result, the accused is now sentenced to an 18-month term of reformatory imprisonment.

G. The Probation Order

[55] When the accused is released from this 18-month term of imprisonment, he will be subject to the terms of a probation order for a period of three additional years. In my view, such an order is in the best rehabilitative interests of the accused, as it will provide him with continued guidance and supervision following the conclusion of his sentence of imprisonment.

[56] As part of this probation order, the accused shall be subject to all of the following statutory conditions prescribed by s. 732.1(2) of the Code, namely, that the accused shall:

• Keep the peace and be of good behaviour;
• Abstain from any communication, direct or indirect, with Cynthia Mulligan (or any member of her immediate family), Chris Mulligan, Pam Seattle and/or James Tumelty, and refrain from attending within 250 meters of their places of residence, or their places of business;
• Appear before the court when required to do so by the court; and
• Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

[57] As part of this probation order, the accused shall also be subject to all of the following additional conditions, pursuant to s. 732.1(3) of the Code, namely, that the accused shall:

• Report to a probation officer within two working days of his release from his period of imprisonment, and thereafter at least once a month, when and where required by the probation officer and in the manner directed by the probation officer;
• Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
• Abstain from owning, possessing or carrying any weapon; and,
• Perform 180 hours of community service over a period not exceeding 18 months, at a rate of not less than ten hours per month.

H. Ancillary Sentencing Orders

[58] In addition, as the parties have agreed, the following two ancillary sentencing orders are appropriate in the circumstances of this case.

[59] First, as the accused has been found guilty of a “secondary designated offence,” namely, wilfully attempting to obstruct the course of justice, and is thereby liable to imprisonment for a period not exceeding ten years pursuant to s. 139(2) of the Criminal Code, under s. 487.051(3) of the Criminal Code I order the taking of bodily substances from the accused for forensic DNA analysis. To the extent such an order is not mandatory, I am satisfied that, having regard to all of the circumstances of this case, including the gravity of the offence committed by the accused, the absence of any criminal record possessed by the accused, and the minimal impact the order will have on the privacy and security interests of the accused, that the order should be made, as it is in the best interests of the administration of justice. Further, such an order would not be in any way disproportionate to the public interest in the protection of society and the proper administration of justice.

[60] Second, pursuant to s. 743.21 of the Criminal Code, I order that the accused shall be prohibited from communicating, directly or indirectly, with Cynthia Mulligan, and her immediate family, her ex-husband, Chris Mulligan, Pam Settle, and/or Mr. Tumelty during his period of imprisonment.

I. Conclusion

[61] In the result, the accused is convicted on the one count of the indictment upon which he was found guilty by the jury. He is hereby sentenced to an 18-month term of reformatory imprisonment. The accused will also be subject thereafter to the conditions of the three-year term of probation that has been imposed, and the various ancillary sentencing orders that have been made.

Kenneth L. Campbell J. Released: March 1, 2022