Court File and Parties
Ontario Court of Justice
Date: 2018-09-24
Court File No.: Central East Region, Durham Region 16-A36802
Between:
Her Majesty the Queen
— and —
Shawn Folkes
Before: Justice Susan C. MacLean
Hearing Dates
Charter Application Heard on: June 13, 16, July 7, 13, 14, September 6, 7 and 8, 2017
Charter Ruling Dismissing the Application released on: November 15, 2017
Written Reasons for Charter Ruling released on: January 26, 2018
Trial Heard on: December 7, 2017, January 17, 18, 26, February 12, 22, April 4, 24, May 8, and June 1, 2018
Judgment Convicting Accused provided on: June 19, 2018
Reasons for Judgment released on: September 24, 2018
Sentencing Hearing scheduled for: September 24, 2018
Counsel
Lara Crawford — Counsel for the Crown
The Defendant Shawn Folkes — on his own behalf
Judgment
MacLean, J.:
Overview of the Case
[1] Shawn Folkes was charged with posting threatening messages on Facebook in which comments are made threatening to kill police officers. The focused issues on the trial were: 1) whether the Crown can prove beyond a reasonable doubt that it was Shawn Folkes who posted these messages; and 2) whether the Crown can prove beyond a reasonable doubt that the messages amount to Threatening Death, including an intent to threaten. I find that the Crown has proven all elements of this charge beyond a reasonable doubt and therefore Mr. Folkes is found guilty. The parties were advised of this decision on June 19, 2018 with written Reasons to follow. These are my Reasons for coming to this decision.
[2] The trial commenced with a lengthy Charter Application which was heard at the beginning of the trial (which focused primarily on issues relating to the circumstances of Mr. Folkes' arrest). Written Reasons dismissing the Application were released on January 26, 2018. None of the 8 days of evidence from the Charter Application became evidence at the trial. The evidence at trial and submissions lasted 10 days. The trial was greatly lengthened by the cross-examinations of the Crown witnesses by Mr. Folkes, who, as a self-represented person, took a great deal of time to question witnesses in minute detail. He had to be redirected or refocused by me on many occasions. The Crown called as witnesses the officer-in-charge, Det. Cst. Paul Grigoriou of the Durham Regional Police Service (D.R.P.S.) (an officer with 17 years experience), and the civilian witness, Russell Sturgess, who had reported to the police seeing the messages which had been posted on Facebook. Shawn Folkes elected not to testify on the trial, but did call his friend, Ms. Jan Godfrey, to testify primarily about issues relating to her personal experiences with identity theft on Facebook. Mr. Folkes also called P.C. Sheryl Delaney regarding the evidence gathered from Russell Sturgess' computer.
The Alleged Threat Posted on Facebook
[3] Shawn Folkes is charged with Threatening Death to police officers by posting messages on Facebook. It is alleged that he is the author of a series of messages posted and exchanged with others on October 4, 2016 under the Profile of a person with a "vanity name" (display name) of "Shawn Folkes (Shawn Campbell)". Det. Cst. Grigoriou testified that in fact "saiyanshawn" was the unique Facebook username which is a specific identifier for that account. While a vanity/display name can be changed, the unique username cannot. Many people can have the same vanity name, but only one person can have the unique username (in this case "saiyanshawn").
[4] Exhibit 1 is the photograph of Russell Sturgess' computer monitor, taken by Scenes of Crime Officer (S.O.C.O) P.C. Rowley when she attended with P.C. Sheryl Delaney in the early morning hours of October 4, 2016 at Russell Sturgess' home. Russell Sturgess had first seen the following messages posted on Facebook at approximately 3:00 a.m. The photograph was taken by the police officer at 5:05 a.m. based on the time displayed in the bottom right corner of the monitor.
[5] The message which was posted on Facebook at 2:59 a.m. reads as follows (see Exhibit 1):
Shawn Folkes
October 4, 2016 at 2:59 a.m.
I'm sorry but I'm not afraid to say it…time to start killing some cops.
The next one that fucks with me illegally…fuck it…I'm gonna set the example and hunt him or her down and eliminate them.
I was looking for two in particular who threatened to break my neck. If I see either, like in a grocery store with their families…I'll stab their children right in their throats and then kill them next…right in aisle 4
[6] Following the posting of those messages, other Facebook users posted comments several hours later, and Shawn Folkes replied to some of them. When Det. Cst. Grigoriou was able to access the Shawn Folkes (Shawn Campbell) account on October 9, 2016 shortly after 9 a.m. (with Russell Sturgess' assistance logged into Mr. Sturgess' account), the following additional comments were obtained (see Exhibit 2 page 24, NOTE: Exhibit 2 must be read in reverse chronological order with the most recent posts appearing on the pages before earlier posts/messages):
Reply by Steve Scott
October 4, 2016 at 4:02 p.m.
Ya you need to delete this shyt and keep your thoughts in your cranium, dig?
Shawn Folkes
October 4, 2016 at 4:30 p.m.
Freedom of Speech mang (speaking our [sic] against a tyrannical arm of the government is my right and this doesn't identify any individual or specific police department). And is my right to fuck up anyone who AS I SAID fucks with me illegally…and this shit aint public.
This doesn't change the fact that I've had cops already threaten me when they definitely had NO REASON whatsoever…After assaulting me.
So let them try. I've smashed them in court over Facebook comments already, next time I'll sue the pants off them.
Reply by Steve Scott
October 4, 2016 at 5:27 p.m.
The best fight is the one that nobody sees coming. Keep your hand.
Shawn Folkes
October 4, 2016 at 5:51 p.m.
But I like saying "I told you so"
It shows I'm a man of my word.
I.fear.no.evil.
Marco Brayley
October 4, 2016 at 5:51 p.m.
Its not the kids fault that there fathers R douce bags
[7] As part of his defence evidence Mr. Folkes presented a document in which he claims that the messages on Facebook continued as follows. It should be noted that the police screen captures from Facebook in Exhibit 2 do not contain some portions of these messages because Det. Cst. Grigoriou did not expand the comments before capturing the messages from Facebook. These expanded comments were filed through the defence witness, Jan Godfrey as Exhibit 19. They can also be seen in an enlarged font size in Exhibit 4. They commence with the last comment posted above:
Reply by Marco Brayley
October 4, 2016 at 6:38 p.m.
It's not the kid's fault that there fathers R douce bags
Shawn Folkes
October 4, 2016 at 6:44 p.m.
Yah.
Shawn Folkes
October 4, 2016 at 6:45 p.m.
I DO apologize Marco Brayley…I'm just pissed and venting and tired of all this BS.
Marco Brayley
October 4, 2016 at 6:45 p.m.
Don't apologize bro. I understand ur frustration. When do the racism stop. Its crazy.
Shawn Folkes
October 4, 2016 at 6:46 p.m.
And guess what…maybe it aint their fault. but them white kids can go to the same hospital as black kids and receive better medical care and compassionate treatment. Ain't no one changing that fact. and no one intends to so…force everyone on a level playing field.
[8] For the context in which the alleged threat was posted, it should be noted that in the hours prior to posting the alleged threat, Shawn Folkes had been posting his concerns about police racism against black persons. Exhibit 2 page 25 shows that Shawn Folkes had shared a video described as "Police the Police's video". This was shared at 2:51 a.m., just 8 minutes before the alleged threat. It displays words on the image of the video stating "THIS IS EXACTLY WHY PEOPLE PROTEST THE POLICE". The posts immediately preceding this suggest that its contents are with respect to police racism. One of the messages posted later that day by Shawn Folkes (on October 4 at 9:36 a.m.) in response to comments about this video states "Sooner or later bkaxk people are gonna say enough is enough and…well…start doin crazy shit". This particular comment is posted after the alleged threat. On page 26, October 4 at 12:32 a.m., two and a half hours before the alleged threat, Shawn Folkes had also shared a different video from "Police the Police" with the words on the video image stating, "WHAT BEING AN AMERICAN LOOKS LIKE IN POLICE STATE 2016". A few minutes after this at 12:55 a.m. Shawn Folkes posted "I ain't gonna lie. I've spent the last month…silently reading and watching shit. I ain't gonna lie. If a race war breaks out…" There are other messages in which Shawn Folkes posts messages or shares images/videos involving his concerns about police brutality and racism by white people towards black people, and the Black Lives Matter movement. These were posted in the hours and days after the alleged threat (see for example, Exhibit 2 pages 8, 10, 11, 13, 17, 18, and 23, which should be read in reverse chronological order, with the more recent posts being on the earlier pages).
Presumption of Innocence, Reasonable Doubt and Credibility
[9] It is trite law but a fundamental principle to state that Shawn Folkes is presumed to be innocent unless the Crown can establish his guilt beyond a reasonable doubt. In assessing the evidence in this case, I have also instructed myself to apply the law with respect to reasonable doubt in relation to credibility as set out in R. v. W. (D.), [1991] S.C.J. No. 26 (S.C.C.). In that case Mr. Justice Cory writing for the majority states at paragraph 27 that:
27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole…
28 …A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself, whether on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[10] I have instructed myself that the Crown must prove each element of the Threatening charge beyond a reasonable doubt.
The Evidence that Shawn Campbell Posted the Facebook Messages
[11] Shawn Folkes argues that the Crown has failed to prove beyond a reasonable doubt that he was the person who posted these messages on Facebook. I do not accept this argument and find that the Crown has proven his identity as the poster of these messages beyond a reasonable doubt. The Crown's case in this regard turned on several pieces of circumstantial evidence as well as the direct evidence of the defence witness, Jan Godfrey.
[12] The most obvious pieces of evidence establishing Shawn Folkes' identity as the person who posted the messages are the numerous photographs of him contained on Facebook for the Shawn Folkes (Shawn Campbell) account where the alleged threats were posted (Exhibit 2). In using these photographs, I have instructed myself to follow and apply the law of proof of identification from images and recognition evidence, as set out in the Supreme Court of Canada's decisions in R. v. Leaney, [1989] S.C.J. No. 90 (S.C.C.), and R. v. Nikolovski, [1996] S.C.J. No. 122 (S.C.C.) as well as the Ontario Court of Appeal's decision in R. v. Berhe, [2012] O.J. No. 5029 (O.C.A.). In Nikolovski, the Supreme Court gave clear direction regarding how a judge must deal with a situation where they are making a comparison between the appearance of a person on a videotape and the appearance of an accused person in court. The degree of quality and clarity of the images in question, as well as how long the person can be seen (in videos), will affect how much weight should be placed on the evidence. The appellate courts have written extensively about the inherent frailties of eyewitness identification evidence, and I have instructed myself to consider and apply this to the identification issues in Mr. Folkes' case. The Supreme Court in Nikolovski, however, stated that even if the perpetrator is only seen in a few frames of a video, if it clearly shows the person, it can be sufficient to establish identification beyond a reasonable doubt. A trier of fact must, however, take care, in concluding that identification has been established beyond a reasonable doubt, where it is based solely on videotape. A jury or Judge sitting alone must ask themselves if the video is of sufficient clarity and quality, and the person has been seen for a sufficient period of time, to be satisfied that the identification has been proven beyond a reasonable doubt. In cases where the video is of this type of quality, there is no need for corroboration of the identification. By analogy, the same standard of proof and cautious approach must be applied where the Crown seeks to establish identification through still images.
[13] I have examined the numerous photographs on Facebook and while some are better quality images than others, in totality, having looked at all of the images, I have no doubt whatsoever that they are images of the Shawn Folkes who appeared before me. These photographs can be seen throughout Exhibits 2, 6 and 8. I place greater weight on those images which are larger where the clarity and quality permits me to see the face of the person, which in my view, clearly show Shawn Folkes. In some images, such as the smaller thumbnail-sized one of the male on the mountain bike, I have difficulty making out the facial features, so I place much less weight on those with respect to identification. I have the benefit, however, of the corroborating evidence of the defence witness, Jan Godfrey, who identified all of the relevant images on Facebook (including the smaller one with the mountain bike) as being images of her close friend Shawn Folkes.
[14] Jan Godfrey clearly confirmed that these Facebook images are all, in fact, photos of Shawn Folkes, the person before me. Jan Godfrey described herself as Shawn Folkes' close personal friend/best friend whom she has known for over 20 years. She has been Facebook friends with him for a few years. So, given her familiarity with Mr. Folkes, and applying the law as set out in Berhe, supra, I place a great deal of weight on her recognition evidence identifying Shawn Folkes in the photographs filed in this trial. She identified the photo at the top of the first page of Exhibit 2 (a Timeline photo) as one of Shawn Folkes and a close friend, Brian Sills. Sadly, Mr. Sills has since passed away. A larger copy of this photo is also seen in Exhibits 6 and 8. Ms. Godfrey also identified the inset photograph (on Exhibit 2) of a male with a bike as being Shawn Folkes. This inset photo is seen throughout the messages posted in Exhibit 2. She also identified other photographs in Exhibit 2 as Shawn Folkes. She testified that Mr. Folkes is a world-class athlete and she identified the many photographs of him engaged in athletic activities, including him displaying medals he had won.
[15] Ms. Godfrey also testified that at one time she had been friends with the specific Shawn Folkes (Shawn Campbell) account (the one in Exhibit 2 where the alleged threat was posted). In spite of testifying at length about her own problems with identity theft of her Facebook accounts, and her concerns about the legitimacy of various Shawn Folkes accounts, Ms. Godfrey eventually agreed in cross-examination that "the one actual account" that she thought was the true Shawn Folkes account was this particular account where the alleged threats were posted in Exhibit 2 (but she was quick to add, "but I can't say beyond a reasonable doubt"). Consistent with Ms. Godfrey's evidence that she believed this to be his genuine account, she identified on page 27 of Exhibit 2 the 3 separate comments which she had posted on this account (On October 2, 2016 at 5:27 p.m., October 3, 2016 at 12:14 p.m., and 1:12 p.m.). This is within one to two days preceding the alleged threat. This is significant, since Ms. Godfrey spent a great deal of time testifying about her experiences with identity theft on Facebook and cloned accounts. Given her experiences, if she had believed the Shawn Folkes (Shawn Campbell) account to be a fake/cloned account, it would be illogical for her to be posting comments on it. Jan Godfrey also indicated in Re-Examination that she was also friends with the separate Shawn Cornell Folkes Facebook account.
[16] I have some very serious concerns about Ms. Godfrey's general credibility and reliability, especially with respect to her claim that there have been several fake Shawn Folkes Facebook accounts. She was a highly emotional witness who was very difficult to control and had to be redirected by me several times. Ms. Godfrey was very scattered in her thoughts at times and lost focus. She also launched into "rants" and frequently attempted to use the courtroom as a platform for making speeches about several issues regarding her concerns about identity theft on Facebook and other issues. Mr. Folkes also asked her some very leading questions on very key issues especially about the legitimacy of the Shawn Folkes (Shawn Campbell) account. I place little weight on those responses. In particular, I place no weight on her response to a leading question in re-examination that from messages she had read on the account that she believed the Shawn Folkes (Shawn Campbell) account was not a legitimate account. I believe she was prepared to say anything to assist her friend, Mr. Folkes and was simply agreeing with his suggestion. Nevertheless, in spite of my concerns about much of her evidence, I completely accept Ms. Godfrey's evidence identifying the photos as being those of the Shawn Folkes who is appearing before me, as well as her response in cross-examination that the Shawn Folkes (Shawn Campbell) account was Mr. Folkes' legitimate account.
[17] I also had the evidence of Russell Sturgess on the issue of identity. He identified Shawn Folkes as the person who regularly posted messages to the same Facebook account in which the alleged threats were posted. Given the challenge to his evidence raised by Mr. Folkes, I will deal with Mr. Sturgess' evidence under a separate heading below. In summary, I place no weight on his identification of Shawn Folkes as the person connected to the Facebook account in question, as he had only seen him in person briefly on one occasion. He is in no better position than I am to compare the photos to the person who is in court. I do not rely on his evidence in coming to the conclusion that the Crown has proven Mr. Folkes' identity beyond a reasonable doubt. I do rely on his evidence in others areas as described below.
[18] Another piece of evidence establishing identity is the prior withdrawn charge against Mr. Folkes. Earlier in the trial I ruled, over the objection of the Defence, that the Crown could introduce into evidence the fact that on April 9, 2014 the Crown had withdrawn Threatening charges against Shawn Folkes. Mr. Folkes had been charged that on August 29, 2012 he had used his Facebook account to threaten death to government employees. The certified copy of the Information (Exhibit 15) and the fingerprints and accompanying photograph (Exhibit 16) clearly prove that the person who had been charged at that time was the Shawn Folkes who is before me. I accept that Mr. Folkes was never tried or found guilty of that offence and that the presumption of innocence applies to that charge. I completely ignore any potential bad character aspects of this evidence. More specifically, the fact that Shawn Folkes was previously charged with Threatening in relation to Facebook posts is not being used by me in any way to suggest he is more likely to have committed the offence before me.
[19] The sole purpose for which this evidence was admitted at this trial was to establish the identity of Shawn Folkes as the person who posted the messages on October 4, 2016. The link between the past case and this one arises in the portion of the posting on the Shawn Folkes (Shawn Campbell) Facebook account on October 4, 2016 at 4:30 p.m. where Shawn Folkes is replying to Steve Scott's comments. That post reads: "I've smashed them in court over Facebook comments already, next time I'll sue the pants off them." The fact that Shawn Folkes had been charged regarding Facebook comments and that those charges were withdrawn is part of the circumstantial case proving his identity as the person who posted the alleged threatening messages. The fact of those earlier charges being withdrawn is very specific information that would be known to Shawn Folkes. I have no evidence that this information was known to others.
[20] Another piece of circumstantial evidence of identity which the Crown tendered through Det. Cst. Grigoriou was the fact that following the officer communicating with Shawn Folkes' parents, they had sent their son an email on October 9, 2016 and Det. Cst. Grigoriou had also emailed him but received no response (see Exhibits 7, 10 and 11) alerting him to the police concerns about a post on Facebook threatening to kill the police. Shortly after that, the officer's access to the Facebook account was suddenly denied. There are several hearsay aspects to this evidence since I never heard evidence from Mr. Folkes' parents. I have no direct evidence that the Shawn Folkes before me ever received the email. So, while the timing of when the Shawn Folkes (Shawn Campbell) account became unavailable to the police in relation to when the email was sent may be suspicious, I do not place any weight on this evidence with respect to proof of identity in this case as most of it relies on hearsay from Mr. Folkes' parents.
[21] I heard a great deal of evidence during the trial about how Facebook works. Shawn Folkes submits that I should have a reasonable doubt that the Crown has established that he was the person who owned the Shawn Folkes (Shawn Campbell) account and who posted the alleged threats on Facebook. I have heard evidence and accept that a person can have their Facebook account compromised/hacked/cloned by identity thieves who make those accounts look legitimate. I have no direct evidence that this occurred with the account in question. It is Mr. Folkes' submission that someone could have posted images of him on a cloned/hacked account, so argued that the Crown can't prove beyond a reasonable doubt that this account in question was his or that he posted the messages. Mr. Folkes' elected not to testify (as is his right and I draw no adverse inference from this), so there is no direct evidence that the Shawn Folkes (Shawn Campbell) is not his account. I am always mindful that there is no burden on Mr. Folkes to prove his innocence. The burden of proof, of course, remains with the Crown to prove beyond a reasonable doubt that it was Shawn Folkes who posted the threats on that account and I instruct myself to not reverse the burden of proof.
[22] The fact that it is possible that accounts can be hacked or cloned does not permit me to speculate that the Shawn Folkes (Shawn Campbell) account was hacked/cloned without some evidence allowing me to draw that inference to raise a reasonable doubt. The law is clear that reasonable inferences must be drawn from proven facts. I have carefully examined the evidence relating to the specific Shawn Folkes (Shawn Campbell) Facebook account where the alleged threat was posted to determine whether the Crown has proven beyond a reasonable doubt that the Shawn Folkes being tried by me is the same person who posted the threats to that account. Having carefully reviewed all of the evidence available to me about that specific account, I do not detect anything unusual about the messages, images or other contents shown on that account which would lead me to conclude that it was a fake account or to have a reasonable doubt about that. The account appears on its face to be one legitimately owned by the person whose name and images are connected to it. To conclude it is not a legitimate account would be entirely speculative.
[23] In summary, I conclude that the Crown has established beyond a reasonable doubt that the Shawn Folkes before me is the person who posted the alleged threatening messages. As discussed above, in arriving at this conclusion I rely on the following evidence:
There are photographs throughout the Shawn Folkes (Shawn Campbell) Facebook account which I can clearly recognize as images of the Shawn Folkes being tried by me. I have had Mr. Folkes appear in front of me on approximately 20 days and have become very familiar with his appearance. I have absolutely no doubt that there are several images of Mr. Folkes on the account in question of sufficient quality and clarity that allow me to recognize Mr. Folkes in them and thus can identify them as being images of the same person before me. It is common sense that a Facebook account holder would normally have images of themselves on their account;
A defence witness clearly identified the photographs on Facebook as being those of her very close friend. She was also able to identify him in some of the images which lacked clarity/quality (due to how small they were), such as the one with the mountain bike;
The alleged threatening messages are clearly posted on the account under the name Shawn Folkes. Follow-up comments or responses to others on Facebook are also under that name;
The name Shawn Folkes appears in many places throughout Exhibit 2 in numerous posts and comments as well as in the profile picture at the top of Exhibit 2 page 1 over a photograph of the Shawn Folkes before me (with his friend). This name is identical to the name of the person being tried by me. Similarity of name is a piece of evidence that may be used to help establish identity. While it is some evidence of identity, I do not place a great deal of weight on this piece of evidence since Exhibit 12 demonstrates that there are many people on Facebook sharing the same name, Shawn Folkes. It is simply one piece of circumstantial evidence;
A defence witness testified that she recognized the Shawn Folkes (Shawn Campbell) account as Mr. Folkes' legitimate Facebook account, and posted comments on it in the day or two preceding the alleged threat, supporting a reasonable inference that she believed that it was his genuine account;
The comments (posted on October 4, 2016 at 4:30 p.m.) on the Shawn Folkes (Shawn Campbell) account which accompanied the alleged threatening post refers to the person who posted the threat as having "smashed them in court over Facebook comments already". The evidence in Exhibits 15 and 16, is clear proof that in 2014 the Shawn Folkes before me had charges withdrawn in relation to prior alleged Threats posted on Facebook. This is very strong circumstantial evidence that the reference to smashing charges in court, is posted by the same person who had been charged then, that being Shawn Folkes. It is specific and unique information that would be within the knowledge of Mr. Folkes. The current posting speaks in the first person, "I've smashed them". Mr. Folkes submits that anyone who knows about him would know about this, but I have no evidence on this point and cannot speculate that others would have known about it. I have considered this argument but find it would be a highly unusual coincidence that a person hacking his account would refer to those charges from several years earlier to respond to comments about the current threatening posts;
While a civilian witness' evidence is completely accepted by me with regard to seeing the alleged threatening post, for the reasons describe below, his evidence does not add much on the issue of identification. I place no weight on his in-court identification of Shawn Folkes as the person who was posting on this Facebook account, since he had only seen him in person once before. I do place weight on his evidence, however, that he had seen several photographs of the same person whom he referred to as Shawn Folkes being posted on this account over a lengthy period of time. This is of some assistance when combined with the defence witness's evidence identifying Shawn Folkes in those images, because it connects the person in those photographs (whom I recognize as the Shawn Folkes before me) as having posted messages on a regular basis to that Facebook account over a long period of time;
The Evidence of Russell Sturgess
[24] Russell Sturgess testified over 5 days (some were part days). His evidence in Examination-in-Chief was very brief (approximately 23 pages out of 5 volumes of transcript, with two of those transcript being shared with the evidence of Det. Cst. Grigoriou), but the cross-examination was very lengthy. Mr. Sturgess gave evidence about seeing the alleged threatening post and then reporting it to the police. He also gave evidence identifying the photographs of Shawn Folkes on Facebook as the person before the court. Shawn Folkes took exception to Mr. Sturgess' evidence and questioned him at great length about a variety of issues. I had to give a lot of direction to Mr. Folkes to remain focused on relevant issues and eventually required him to finish up within a certain time period.
[25] Russell Sturgess was playing some games on Facebook and drinking some beers (approximately 6 or 7 beers over a few hours) in the early morning hours of October 4, 2016. While doing this, at approximately 3:00 a.m. (he believes it was 3:01 a.m.) he saw the message that Shawn Folkes had posted 1 minute earlier come up on his newsfeed. He found it to be "rather disturbing" since it referred to hunting down police officers and their families and killing them. Mr. Sturgess had friends who were ex-military and police officers. He had no idea who the two officers were that the posting referred to or whether they were D.R.P.S. officers. In cross-examination he was asked whether in his mind the message amounted to a threat, and he said, "of course it did" and that is why he immediately called the D.R.P.S. to report it. Mr. Sturgess' opinion about this is only relevant to the issue of how a reasonable person might view the words posted when determining whether the words amount to a threat. Russell Sturgess believed it was within one minute of viewing the messages that he called the police. He did not attempt to contact the person who had posted the threat before or after calling the police.
[26] Police officers (P.C. Rowley and P.C. Delaney) attended at Mr. Sturgess' home, spoke with him and then left to go get a camera because they did not have the proper camera equipment with them. Mr. Sturgess gave the police full access to his computer. When they returned the officers took photographs of his computer monitor with the alleged threatening post on it (Exhibit 1). The time on the monitor shows that the photograph of the Facebook message was taken by the police at 5:05 a.m. The message in question said it had been posted 2 hours earlier, consistent with being put up on Facebook at approximately 3 a.m. Mr. Sturgess said he did not "refresh" his Facebook page, so that the police could view the alleged threat as he had first seen it.
[27] Exhibit 4, presented to this witness by Shawn Folkes during cross-examination, is an enlarged font size of the relevant messages. Some of the messages/comments at the end between Shawn Folkes and Marco Brayley were subject to further proof, which came when Exhibit 19 was tendered through Jan Godfrey, who was called by the Defence. Mr. Sturgess said he had not seen the additional comments made by Shawn Folkes and others as seen in Exhibit 4. The first comment, made by Steve Scott, was made at 4:02 p.m. on October 4, 2016, approximately 13 hours after the original threatening post was put up. Mr. Sturgess believes he was aware of some of the comments in response to the original post by the time he spoke with Det. Cst. Grigoriou a few days later.
[28] Mr. Sturgess also identified the identical message in Exhibit 2 at the bottom of page 24 as the same as what he had seen on his computer around 3 a.m. (in Exhibit 1). It shows the time of the alleged threat as 2:59 a.m. While he had not informed the police of this, Russell Sturgess had also captured screenshots of the same alleged threatening message 12 minutes after the initial post came up. These can be seen in Exhibits 5.1 and 5.2 (he testified that he believes they may be duplicates of the same image since they both show a time on the monitor indicating the images were captured at 3:12 a.m.). He believes that the police had seen what is shown in Exhibit 5.1 when they first came to his house and then left to get a camera. The threatening post is highlighted in blue on Exhibit 5.1. Before taking the Exhibit 1 photograph the police removed the blue highlighting to obtain a better photo. The fact that Mr. Sturgess had taken the Exhibits 5.1 and 5.2 screenshots (and other screenshots) first came to light when Russell Sturgess volunteered that he had done this during cross-examination. Mr. Sturgess was very cooperative with the Court and on a couple of occasions interrupted his evidence to go to his home and copy all Facebook screenshots that he had taken and saved on his computer to bring back to court with him. I accept his explanation that he didn't know he should tell the police about having saved the alleged threatening message and the other screenshots. I accept that the police never asked him if he had done this. His explanation makes sense since the police took photographs of this same/identical alleged threatening message from his computer monitor when they came to his home, and he might not think it necessary to give them exactly the same information.
[29] Mr. Sturgess explained that he had not refreshed his newsfeed before the police attended at his home, to make sure nothing changed from what he had seen when it first came up. He testified that he never touched the posting from the time he saw it until the police arrived. I accept his evidence on this point. In order to take his own screenshot of the threatening post, Mr. Sturgess explained that he opened an "incognito" page which blocks his IP address from being seen and would allow him to not lose information. Watching an account without being seen is sometimes referred to as "creeping" the account. Mr. Sturgess opened another window and did a search in the search field for Shawn Folkes, accessed the account in question and took screen shots (using the Paint programme) in case the posted messages accidentally got deleted before he could show them to the police.
[30] Mr. Sturgess does not know Shawn Folkes personally but had been added to his Facebook account through a mutual friend. They had been Facebook "friends" since 2005, and Mr. Folkes was one of approximately 700 people Mr. Sturgess has as Facebook friends. Russell Sturgess believes, but is not certain, that he became Facebook friends with Shawn Folkes through Mr. Sturgess' ex-girlfriend, Tammy Sawyer, as they knew each other's passwords. Mr. Sturgess never chose to specifically follow Shawn Folkes on Facebook. He did not post "likes" to the Shawn Folkes account, and said in fact that he tried to avoid it. Mr. Sturgess believed that the alleged threatening post showed up on his newsfeed randomly.
[31] Russell Sturgess said he had no idea why the name Shawn Campbell followed Shawn Folkes, but said that on Facebook you can add "little nicknames". He did recall in the period since 2005 there being other names on the same account, since nicknames can be added by the account holder. A Facebook posting from July 28, 2015 (Exhibit A) was presented to Mr. Sturgess by Mr. Folkes in cross-examination but Mr. Sturgess did not recognize it. Similarly he did not recognize Facebook postings presented to him which were dated between October 7 to 9, 2016 (Exhibits B, C and D). He recognized the profiles photos as the same person he had seen in other Facebook photos (Shawn Folkes) and a profile photo with the emblem from "JamCan" which he had seen on the Shawn Folkes (Shawn Campbell) account as well. He also recognized a few different names associated with the person in the photo such as Shawn Folkes, Shawn Campbell, Shawn Cornell Folkes, and Shawn of the Family Folkes. Mr. Sturgess said photos of the same person were posted on all of these accounts but agreed that he did not know who had posted any of the photos. In cross-examination he agreed that he had been "investigating" these accounts relating to the person he believed to be Shawn Folkes and collected screenshots about them because he believed it was the same person who had posted threats (a different threat than the one before the Court). This was adduced by Mr. Folkes' in his questions to Mr. Sturgess, and I completely disregard any bad character evidence aspects of this evidence.
[32] Exhibits 9.1 to 9.9 are screenshots captured by Russell Sturgess of postings on Facebook connected to the Shawn Cornell Folkes account (not the account where the threats were posted) which he believed were connected so the same person who made the threats. The messages all appear to be posted in August of 2015 (over 1 year before the alleged threatening post on a different account). Mr. Sturgess testified that from looking at information on his computer, he had taken those screenshots on October 22, 2016 between 2:08 and 2:13 a.m., a few weeks after he had seen the alleged threatening post. When asked in cross-examination why had had collected this information about the Shawn Cornell Folkes account, Mr. Sturgess said it was because he had seen the Shawn Folkes (Shawn Campbell) account change names many times and believed that the accounts were related (including Shawn of the Family Folkes). He was also gathering it because there had been a threat to kill police officers and lead by example (in Exhibit 1).
[33] The contents of the messages in Exhibits 9.1 to 9.9 are completely irrelevant to the case before me and I ignore them. Russell Sturgess agreed in cross-examination that he may have accessed these pages logged in using someone else's account (his deceased father's Facebook account). Mr. Sturgess was unaware whether the account holder for the Shawn Folkes (Shawn Campbell) account had blocked Mr. Sturgess from seeing that account.
[34] Exhibit 12 was presented to Russell Sturgess in cross-examination. This was the list obtained by Det. Cst. Grigoriou from Facebook of all accounts with the same or similar account names to Shawn Folkes (the list was as at the date of the search which the officer did on January 18, 2018). Mr. Sturgess agreed that the second account name on the list "Shawn Folkes (Shawn Campbell)" was the account where the alleged threat had been posted. Mr. Folkes' asked Mr. Sturgess which accounts he recognized as linked to the Shawn Folkes (Shawn Campbell) account. Mr. Sturgess recognized the first account listed on Exhibit 12. He believed that account was one kept by Mr. Folkes to post things about keeping fit after 40. It showed an image of Mr. Folkes using parallel rings and was about how to get fit, stay fit and train, including "Shawn's Boot Camp". Mr. Sturgess blocked this account as well when he blocked the "Shawn Folkes" accounts. Exhibit 13.1 and 13.3 are lists showing which "Shawn Folkes" accounts Mr. Sturgess had blocked on Facebook (there appear to be 17 of these accounts). Mr. Sturgess obtained this list from his Facebook account (other blocked names were edited out for privacy reasons). He blocked them based on the names, not based on checking to see if the images were the same. Mr. Sturgess agreed that a Facebook user cannot block an account that has already been deactivated. During Christmas of 2017 Mr. Sturgess was still keeping tabs on the accounts to see if someone was trying to play games to mislead the court. Accounts in that name popped up using his father's account.
[35] Mr. Folkes asked me to consider all of the evidence about Russell Sturgess watching these accounts as proof that Mr. Sturgess was "creeping" or watching the Shawn Folkes accounts in a manner so that he would not be detected. I accept that this occurred. While this evidence may raise concerns about bias and Mr. Sturgess' credibility-at-large, it does not cause me to have any concerns whatsoever about the fact that Mr. Sturgess observed and reported the alleged threatening post on October 3, 2016 at 2:59 a.m. As indicated elsewhere, however, I do approach Mr. Sturgess' evidence about the identity of the account holder with great caution.
[36] In cross-examination Mr. Sturgess said he had seen this account holder "venting" in the past on a number of issues but found them to be more "serious" than just "venting". For example, he had previously reported another posting which had showed up around the same time (3 a.m.) in which there were threats about "breaking cops necks". He found this offensive. The police had not laid charges at that time (the reasons for this I ignore as hearsay). He often saw negative postings on the Shawn Folkes account so chose to ignore them. I specifically disregard any reference to the previous postings which are bad character evidence. Its only relevance is with respect to Mr. Folkes' argument that Russell Sturgess was a biased witness whose evidence should not be relied upon. I have considered this in assessing what weight should be attached to Mr. Sturgess' evidence.
[37] Before coming to court, Mr. Sturgess had only seen Mr. Folkes in person once, at a funeral for Mr. Robin Pieschkie. Russell Sturgess was there to pay his respects to Mr. Pieschkie and his wife (Crystal Hortezenko, who was also a mutual Facebook friend with Shawn Folkes). When he was walking into the funeral home Mr. Sturgess saw and recognized Shawn Folkes from Facebook. He said hello to Mr. Folkes was but "brushed off", with Mr. Folkes looking at him and then looking away again. Mr. Sturgess could not remember when the funeral had taken place. Mr. Sturgess had never had a face to face conversation with Mr. Folkes.
[38] In court, Russell Sturgess identified the Facebook photograph of Shawn Folkes standing in front of a mountain bike as the same Shawn Folkes being tried before me. Russell Sturgess said he was quite familiar with this Shawn Folkes (Shawn Campbell) account and had seen various posts on the account. He has also seen photographs on this account such as profile pictures which Mr. Sturgess identified as being the Shawn Folkes before the court. He had also seen a posted video in which he recognized the male as the Shawn Folkes before me. It was posted some time before the alleged threat but Mr. Sturgess could not remember when. Mr. Folkes had filmed this video using a cell phone. He was standing in front of the Michael Starr Building in Oshawa near Athol Street. Mr. Sturgess said in the video that he was "bitching and complaining" about Municipal By-Law Enforcement officers pulling a person over. He filmed the officers and then turned the camera back on himself to film it and made comments. I ignore any aspects of this evidence that might be considered bad character (i.e. conflict with persons in authority). It is only relevant to Mr. Sturgess' ability to identify the photographs on Facebook as being those of the Shawn Folkes being tried before me. This video was not presented in evidence, but the profile pictures for the Shawn Folkes (Shawn Campbell) account on Facebook were obtained and put into evidence through Russell Sturgess and Det. Cst. Grigoriou (see for example Exhibits 2, 5.3, 6, and 8). Mr. Sturgess testified that it has always been the same individual who has posted on this Shawn Folkes (Shawn Campbell) account in relation to those photographs. This is part of the circumstantial evidence available to identify the person who posted the alleged threatening message.
[39] Mr. Sturgess identified Shawn Folkes in the courtroom, however, I place no weight on this in-court identification since the appellate caselaw is clear that limited weight should be placed on this kind of evidence. Mr. Sturgess had only seen Mr. Folkes once in person. There is no evidence that Mr. Sturgess was asked to identify Mr. Folkes from a photo line-up. I do place significant weight on the evidence of Mr. Sturgess that he had seen images of the same person posted in a variety of places on Facebook over an extended period of time (months to years). This is important with respect to whether the user of the account was that same person in the photos over that extended period of time, including when the threat was posed. With respect to whether the person in the courtroom is the same as the person in the images, however, since Mr. Sturgess had only seen him once in person, he is not in any better a position than me to look at the photographs to see if they appear to show the same person as the man being tried. R. v. Berhe, [2012] O.C.J. No. 5029 (O.C.A.), concerning recognition evidence assists in giving me direction about the limited use I can place on Mr. Sturgess' recognition evidence to prove identity.
[40] After taking over the investigation, Det. Cst. Grigoriou called Russell Sturgess requesting he attend the police station to provide a videotaped statement to the police. This took place on October 9, 2016. On that day, Mr. Sturgess also assisted Det. Cst. Grigoriou by logging into his Facebook account so that the officer could access the Shawn Folkes (Shawn Campbell) account and confirm what had been posted by the account holder on October 4, 2018. This allowed Det. Cst. Grigoriou to retrieve and save all of the messages and images contained in Exhibit 2. The alleged threat would be called an O.P. (original posting) with replies or comments being made to it. Mr. Sturgess was aware that the officer would be taking pictures of what was posted and saw what was being accessed. As Det. Cst. Grigoriou was navigating through what was on the Facebook account, he was talking about it to himself, but Mr. Sturgess said he was just listening rather than discussing it with the officer. It was when the officer was going through this process that Mr. Sturgess became aware of the comments which had been made in response to the threatening post. Mr. Sturgess said he had no interest in what was going on in this account between October 4, 2016 and October 9 th when he met Det. Cst. Grigoriou. The link to the video "People Protest the Police" (posted 8 minutes before the threatening post) could not be accessed by the officer and Russell Sturgess had never viewed it.
[41] Russell Sturgess did not remove the Shawn Folkes account or block it on Facebook up to the point where he met with Det. Cst. Grigoriou. Either the same day as meeting with Det. Cst. Grigoriou or the following day, Russell Sturgess was curious and tried to do a search to see the Shawn Folkes account again but was unable to. By that point the Shawn Folkes (Shawn Campbell) account had been deactivated, banned or removed, so Mr. Sturgess could not access it. This was not done by Mr. Sturgess. Mr. Sturgess said as far as he knows there are a few ways that a Facebook account can be deactivated. The account holder can personally deactivate it. If they reactivate it they could see their Facebook friends again. Facebook can deactivate it and advise the user that this has been done, in which case the user could no longer see their Facebook friends. Other Facebook users could not see a deactivated account. There was no evidence in this trial as to why the account had been deactivated.
[42] Approximately 11 months later, Russell Sturgess found that the Shawn Folkes (Shawn Campbell) account was visible online again because of a comment posted by the Shawn Folkes account holder on the account of a mutual friend named Paula Adair. Mr. Sturgess said he then did search and saw it was an active account again. He observed that the profile image on the account once it was reactivated was the same mountain bike photo seen in Exhibit 2. Russell Sturgess does not know if the Shawn Folkes (Shawn Campbell) had blocked Mr. Sturgess' Facebook account.
[43] As indicated above, Mr. Sturgess had volunteered in cross-examination that he had taken screenshots of some images from this account and went home to retrieve copies off of his computer (Exhibits 5.1 to 5.4). Exhibit 5.3 showing a Jamaican Torch symbol for "JamCan" and 2 photos of Shawn Folkes (who is an athlete) beside it, was captured by him on October 26, 2016 at 11:25 a.m. Mr. Sturgess said he saved this in case the police had any further questions. Although it was from a different Shawn Folkes Facebook account (Shawn Cornell Folkes), he saved it because the photos showed it was the same person as on the account where the threat had been posted and Mr. Sturgess believed he had seen the same image posted on the Shawn Folkes (Shawn Campbell) account at some point in time. Mr. Sturgess testified that he had seen arguments on that account where the account holder had posted some insulting remarks about the wife or daughter of an American Army Ranger or Marine who was a veteran from either Afghanistan or Iraq). I indicated at the time this evidence was given in cross-examination that I would completely ignore it as bad character evidence and I place absolutely no weight on it. Its only relevance it to assess Mr. Sturgess' credibility and any biases he may have towards the account holder(s) for the Shawn Folkes Facebook accounts.
[44] When Mr. Sturgess became aware that the account where the threat had been posted had been reactivated, he blocked it, which "unfriended" it. He had not been able to block it earlier when he had blocked all accounts with the name "Shawn Folkes", since you cannot block a deactivated account. Once that block was in place Shawn Folkes would not be able to see Russell Sturgess' account. Russell Sturgess testified that once an account has been blocked it could not be "counter-blocked" by that other person because it would not be visible to them once blocked. Exhibit 5.4 is a screenshot captured on September 23, 2017, which is almost 1 year after the Exhibit 1 alleged threatening post. There is nothing relevant in Exhibit 5.4, but Mr. Sturgess had been asked to bring to court all screenshots he had taken of the Shawn Folkes account.
[45] While there was no legal burden on Mr. Folkes or requirement to do so, in order to raise a reasonable doubt about the identity of the person who posted the messages in question on the Facebook account, Mr. Folkes spent a lot of time questioning Mr. Sturgess about how Facebook works. This was also done to assist me in understanding various aspects of Facebook when I explained that I am not a Facebook user. As an experienced user, Mr. Sturgess was quite knowledgeable about how Facebook works, but fairly testified that he does not hold himself out to be an expert on Facebook.
[46] Mr. Sturgess agreed that if someone has the password for another person's Facebook account that they could post messages in the account-holder's name. I have no evidence in this trial, however, that Shawn Folkes ever provided his Facebook password to anyone else.
[47] Shawn Folkes asked Mr. Sturgess about some of the ways that Facebook works. He agreed that an account holder can choose their audience, that is, who can view their Facebook messages. He agreed that the account holder can restrict their audience to selected friends. Not all posts are public. Russell Sturgess agreed that the postings on Exhibit 2 were restricted to being viewed by friends and were not public posts. He was asked if anyone outside of the friends list could access that posting. Mr. Sturgess explained that if a mutual friend comments on the post, then another person could see it. So, for example, if there are 3 people, A, B and C, it would work as follows: A and B are friends, B and C are friends, but A and C are not Facebook friends. A makes a post, B comments on the post, then C as a friend of B can access and view that post. Mr. Sturgess was not certain if C could comment on A's post, but they could view it, because of being friends with B who commented on A's post. If B never made the comment, C could not view A's post. Someone making a post could delete it. Comments could be deleted by the person who had made the post or the person making the comment.
[48] Russell Sturgess advised that he has his Facebook set to let him know if somebody posts something or logs in from an unknown device. He gets a text message on his cell phone that this has happened and can de-authorize that device from his account. The message tells him where the post came from (i.e. the location, such as Toronto). While he can remove the device that posted it, you would have to go into your account and delete the post by the other person.
[49] Mr. Sturgess agreed with Shawn Folkes' suggestion that there can be cloned or hacked accounts. A cloned account is a fake duplicate account where a hacker has taken the complete information from the original account. Mr. Sturgess said he could not tell whether or not the Shawn Folkes (Shawn Campbell) account was cloned. He said the user would always post around the same time of day. He agreed that he was never present to see the user in person posting on a computer to this account. He also agreed that he did not know the jurisdiction in which the posts had been made (i.e. Oshawa or elsewhere).
[50] Russell Sturgess agreed that Facebook could have their IT technicians take down an account if they considered a post to be threatening. He did not, however, report the alleged threat by Shawn Folkes to Facebook. He elected to notify the D.R.P.S. instead. Mr. Sturgess also blocked the Shawn Folkes (Shawn Campbell) account because he did not want to see any more negative posts. I completely ignore the bad character evidence about earlier threatening posts which Russell Sturgess had seen posted on this account.
[51] On the first day of cross-examination, Mr. Sturgess testified that he had not been "following" the Shawn Folkes (Shawn Campbell) account because most of the posts were never positive. Later in cross-examination, however, he agreed that he had been checking that account from time to time, as detailed above. I take this contradiction into account in assessing Mr. Sturgess' evidence.
[52] In spite of later arguing that this Facebook account was cloned, Shawn Folkes presented the Facebook messages in Exhibit 3 to Mr. Sturgess in cross-examination. Russell Sturgess agreed that the 2011 and 2015 messages were exchanged between them (that is between Russell Sturgess and the Shawn Folkes account). I do not use this as proof of identity. It is only relevant to confirm that Mr. Sturgess had been following this account on Facebook for many years. The 2011 messages were complimentary to Mr. Folkes about dream-catchers that he had made. Mr. Sturgess believed some of those messages related back to a negative post in which Mr. Folkes had vented his opinions on social media.
[53] Since Shawn Folkes was on bail terms that prevented him from going onto Facebook, at the Court's request the Crown very fairly agreed to assist and have Det. Cst. Grigoriou obtain information from Facebook about the account in question which Mr. Folkes wished to put into evidence but could not access himself. This included the number of accounts on Facebook with the name Shawn Folkes associated with them (see Exhibit 12), as well as images posted on the account where the alleged threat had been posted. Exhibit 8 contains several pages of photographs and other information showing the profile pictures, cover and timeline photos and other images from the Shawn Folkes (Shawn Campbell) account. Exhibit 8 was presented to Russell Sturgess in cross-examination and he identified many of the photos as ones he had seen posted on that Facebook account over the years during which he had been friends with the account. Mr. Sturgess agreed that one of the images contains a disclaimer of sorts which includes that no one is allowed to use the images without the account holder's written consent (see Exhibit 8 page 4, 10 th image).
[54] Ultimately, while Russell Sturgess testified for a very long time in this trial, the only evidence which he gave that I rely on in this case is that 1) he saw the alleged threatening posts come up on Facebook at approximately 3 a.m. on October 4, 2016 and that they appeared exactly as captured in Exhibits 1 and 2; and 2) that he had seen photographs of the same person associated to the Shawn Folkes (Shawn Campbell) account over several years. It is clear that Russell Sturgess was surreptitiously watching the Shawn Folkes accounts from time to time ("creeping" the accounts), due to his concerns over what he saw posted there. On the whole however, I found that he was a fair and honest witness, trying his best to assist the court with anything he was asked to answer or images he was asked to produce (i.e. the screenshots saved on his computer). I found his evidence to be both very credible and reliable with respect to the two issues that I have placed weight on.
The Law with Respect to Threatening
[55] The leading case with regard to the offence of Threatening is the Supreme Court of Canada's decision in R. v. McRae, 2013 SCC 68, [2013] S.C.J. No. 68 (S.C.C.). The decision was delivered by Justices Cromwell and Karakatsanis. The Court sets out the law with respect to each element of the offence. A review of the relevant portions of this decision is of great assistance and I direct myself to follow and apply this law in the case before me.
Analysis
A. The Applicable Law
8 The respondent is charged with the offence of uttering threats, provided for in s. 264.1(1)(a) of the Criminal Code:
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
9 This Court has previously considered this offence in R. v. McCraw, [1991] 3 S.C.R. 72, R. v. Clemente, [1994] 2 S.C.R. 758, and more recently in R. v. O'Brien, 2013 SCC 2, [2013] 1 S.C.R. 7. The elements of the offence include: (1) the utterance or conveyance of a threat to cause death or bodily harm; and (2) an intent to threaten. We review here the law relating to each element.
(1) The Prohibited Act (Actus Reus)
10 The prohibited act of the offence is "the uttering of threats of death or serious bodily harm" (Clemente, at p. 763). The threats can be uttered, conveyed, or in any way caused to be received by any person. The question of whether words constitute a threat is a question of law to be decided on an objective standard. Justice Cory put it this way in McCraw:
The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person ...
The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? [pp. 82-83]
11 The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a) (see e.g. O'Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent (see e.g. R. v. MacDonald (2002), 166 O.A.C. 121, where the words uttered were "You're next").
13 Thus, the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously: Clemente, at p. 763; O'Brien, at para. 13; R. v. LeBlanc, [1989] 1 S.C.R. 1583 (confirming the trial judge's instruction that it was not necessary that "the person threatened be ever aware that the threat was made": (1988), 90 N.B.R. (2d) 63 (C.A.), at para. 13). Further, the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient: R. v. Rémy (1993), 82 C.C.C. (3d) 176 (Que. C.A.), at p. 185, leave to appeal refused, [1993] 4 S.C.R. vii (threat against "police officers" generally); R. v. Upson, 2001 NSCA 89, 194 N.S.R. (2d) 87, at para. 31 (threat against "members of the black race" generally).
14 The reasonable person standard must be applied in light of the particular circumstances of a case. As the Court of Appeal for Ontario explained in R. v. Batista, 2008 ONCA 804, 62 C.R. (6th) 376:
An ordinary reasonable person considering an alleged threat objectively would be one informed of all the circumstances relevant to his or her determination. The characteristics of a reasonable person were considered by the Supreme Court of Canada in R. v. S. (R.D.), [1997] 3 S.C.R. 484 (S.C.C), in the context of the test for bias. In that case, L'Heureux-Dubé and McLachlin JJ., at para. 36, described such a person as a:
reasonable, informed, practical and realistic person who considers the matter in some detail....The person postulated is not a "very sensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case.
Similarly, in R. v. Collins, [1987] 1 S.C.R. 265 (S.C.C.), at p. 282, in the context of the test for bringing the administration of justice into disrepute, Lamer J. for the majority describes a reasonable person as "dispassionate and fully apprised of the circumstances of the case": see also R. v. Burlingham, [1995] 2 S.C.R. 206 (S.C.C), at para. 71.
It follows that a reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic. [Emphasis added; paras. 23-24.]
15 Thus, while testimony from persons who heard or were the object of the threat may be considered in applying this objective test, the question in relation to the prohibited act is not whether people in fact felt threatened. As the Court of Appeal for Ontario put it in Batista, witness opinions are relevant to the application of the reasonable person standard; however, they are not determinative, given that they amount to personal opinions and "d[o] not necessarily satisfy the requirements of the legal test" (para. 26).
16 To conclude on this point, the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm.
(2) The Fault Element (Mens Rea)
17 The fault element is made out if it is shown that threatening words uttered or conveyed "were meant to intimidate or to be taken seriously": Clemente, at p. 763.
18 It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient (Clemente, at p. 763) or that the accused intended to carry out the threat (McCraw, at p. 82). Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously: see e.g. Clemente, at p. 763; O'Brien, at para. 7; R. v. Neve (1993), 145 A.R. 311 (C.A.); R. v. Hiscox, 2002 BCCA 312, 167 B.C.A.C. 315, at paras. 18 and 20; R. v. Noble, 2009 MBQB 98, 247 Man. R. (2d) 6, at paras. 28 and 32-35, aff'd 2010 MBCA 60, 255 Man. R. (2d) 144, at paras. 16-17; R. v. Heaney, 2013 BCCA 177, at para. 40; R. v. Rudnicki, [2004] R.J.Q. 2954 (C.A.), at para. 41; R. v. Beyo (2000), 47 O.R. (3d) 712 (C.A.), at para. 46.
19 The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances: see e.g. McCraw, at p. 82. Drawing these inferences is not a departure from the subjective standard of fault. In R. v. Hundal, [1993] 1 S.C.R. 867, Justice Cory cites the following words from Professor Stuart which explain this point:
In trying to ascertain what was going on in the accused's mind, as the subjective approach demands, the trier of fact may draw reasonable inferences from the accused's actions or words at the time of his act or in the witness box. The accused may or may not be believed. To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused "must" have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused "must have realized it if he had thought about it". [Emphasis added: p. 883.]
21 Similarly, in R. v. Noble, 2009 MBQB 98, the court had to determine if the accused intended to be taken seriously when he uttered the words "I guess we know whose house is going to burn down", immediately followed by "just kidding" and laughter (trial decision, at para. 1). The accused had uttered the words to a sheriff's officer as he was returning to prison from court after having been sentenced for threatening to kill the Crown attorney who had successfully prosecuted him for robbery. The trial judge found that in spite of the remark's off-the-cuff nature and the absence of any indication that the accused was angry or upset when he uttered the words, when viewed in the larger context, the accused was aware that his words, which were very specific, would be taken seriously as a threat against that same Crown attorney (paras. 33-35). After the first time the accused had threatened the Crown attorney, she had been the victim of an attempted home invasion. Although it was not alleged that the accused was involved, he told the media that the Crown attorney had gotten what she deserved. After she was made aware of the accused's reference to a house burning, the Crown attorney took the comment seriously and was very frightened by it. As a result, she and her partner sold their house (trial decision, at paras. 2-19). In addition to the Crown attorney's reaction to the threats, the fact that the accused knew that criminal sanctions flowed from threatening language, as a result of having just been sentenced to two years' imprisonment for uttering threats, was also an important factor with regard to the fault element in this case (para. 34). The trial judge concluded that the words might "have been blurted out on the spur of the moment, or driven by bravado, but given all the circumstances [...] the evidence demonstrate[d] that the accused was aware that it would be taken seriously" (para. 35).
22 The Court of Appeal for Manitoba confirmed the factual findings of the trial judge, specifically the contextual analysis she undertook with regard to the fault element (Noble, at para. 17).
23 To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard of fault applies. However, in order to determine what was in the accused's mind, a court will often have to draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them.
B. First Issue: Is the Confidential Nature of a Threat Relevant to the Analysis?
24 In our view, both the trial judge and the Court of Appeal erred in law in finding that the elements of the offence had not been made out because the threats were conveyed in a so-called "closed circle". Even if it is true that the respondent could have expected his words to remain confidential, a conclusion we would not necessarily be ready to confirm, this does not preclude a finding of guilt because it is not necessary to prove that the threats were conveyed to their intended recipients (prohibited act) or that the accused intended the threats to be so conveyed (fault element). Further, it is not necessary to prove that anyone was actually intimidated by the threats (prohibited act) or that the accused specifically intended to intimidate anyone (fault element). The concept of the "closed circle" is therefore legally wrong. Threats are tools of intimidation and violence. As such, in any circumstance where threats are spoken with the intent that they be taken seriously, even to third parties, the elements of the offence will be made out. As we explain below, the trial judge erred in both respects with regard to the fault element, and the Court of Appeal erred in both respects with regard to the prohibited act and the fault element.
[Emphasis added]
[56] I was also referred by the Crown to R. v. Ross, [1986] O.J. No. 107 (O.C.A.) and by the Defence to R. v. Sather, [2008] O.J. No. 918 (O.C.J.) by Justice Blouin and R. v. Lee [2010] O.J. No. 3060 (O.C.J.) by Justice K. Wright. It is important to note, however, that all of these cases preceded the Supreme Court's decision in McRae, supra, so I take my direction from the Supreme Court of Canada instead.
The Application of the Law of Threatening to the Shawn Folkes Case
[57] Applying the law as set out in McRae, supra, with respect to the prohibited act (actus reus) I find that in the context of all of the words written/posted in this case, the questioned words would convey a threat of death to police officers, to a reasonable person, thereby meeting the objective test. In his Facebook message, Shawn Folkes speaks about it being "time to start killing some cops". He messages that he will "hunt down" and "eliminate" any police officer who "fucks with him illegally". He refers to two specific officers (without naming them) who had threatened to break his neck and indicates if he sees them in a grocery store with their families he will stab their children in their throats and then "kill them next" right there in aisle 4. None of these words are ambiguous. There is no reason to believe that the words had a secondary or less obvious meaning.
[58] It is not necessary that any police officer ever be aware that the threat was made or that he or she was intimidated by it or took it seriously. We do have the evidence of Det. Cst. Grigoriou in this case, however, that, as a police officer, once he became aware of the Facebook posting he took the threat very seriously. P.C. Delaney also said she took the threats seriously.
[59] I am satisfied beyond a reasonable doubt that a reasonable person fully aware of the circumstances in which Shawn Folkes' words were conveyed would have perceived them to be a threat of death to police officers. I am satisfied beyond a reasonable doubt that these words convey a threat to kill police officers in general.
[60] The next issue to consider is the fault element. The Crown must prove beyond a reasonable doubt that the threatening words uttered or conveyed "were meant to intimidate or be taken seriously". The context in which these comments were posted is of assistance in determining whether Shawn Folkes intended the words to be taken seriously.
[61] Shawn Folkes submitted that (if the Crown proved he posted the comments) there is no evidence that he ever intended for the police to be intimidated or that his words be taken seriously because the words were posted on Facebook to a limited group of Facebook friends, which did not include any police officers. This argument fails, however, because as is clearly indicated at paragraph 24 of McRae the Supreme Court of Canada states that even if Shawn Folkes could have expected his words to remain confidential among his Facebook friends, this does not preclude a finding of guilt because it is not necessary to prove that the threats were conveyed or that Mr. Folkes intended they be conveyed to the police. There is also no requirement that any police officer was intimidated or took Mr. Folkes' words seriously (although, as indicated above, we know from their evidence that both P.C. Sheryl Delaney and Det. Cst. Grigoriou did take them very seriously). Mr. Folkes' submission that you cannot intend to intimidate someone you are deliberately avoiding contact with (i.e. he had no police friends on Facebook), fails to recognize that the concept of the "closed circle" is legally wrong. The offence can be proven where the threats were intended to be taken seriously by anyone.
[62] I am satisfied beyond a reasonable doubt that when Shawn Folkes posted his comments at 2:59 a.m. that he intended them to be taken seriously, even by third parties, such as those who were reading his comments on Facebook. We know that Russell Sturgess took his comments seriously enough to call and report them to the D.R.P.S. in the middle of the night immediately after reading the post.
[63] At 4:02 p.m., thirteen hours after the original post, Steve Scott apparently took the messages seriously enough to comment that Shawn Folkes should "delete this shyt" and keep his thoughts to himself. In response to Steve Scott's comments, at 4:30 p.m. Mr. Folkes writes about freedom of speech and his right to "fuck up" anyone who "fucks with me illegally". He adds "and this shit aint public". When Steve Scott replies at 5:27 p.m. with the advice that, "The best fight is the one that nobody sees coming. Keep your hand." Shawn Folkes adds at 5:51 p.m., "But I like saying, 'I told you so'. It shows I am a man of my word, I.fear.no.evil". These responses by Shawn Folkes posted 13 to 14 hours after the original posting indicate that he had meant what he said. He is unapologetic and stands by his original post. There is absolutely nothing to suggest that the words posted at 2:59 a.m. were written in gest or were not intended as they are plainly written, that is, as a threat to be taken seriously, to kill police officers (and their children).
[64] Finally, at 6:38 p.m. when Marco Brayley replies at 6:38 p.m., that "It's not the kid's fault that there fathers R douce bags", Shawn Folkes posts at 6:45 p.m., "I DO apologize Marco Brayley…I'm just pissed and venting and tired of all this BS". Mr. Folkes submits that this is evidence that all of the posts and comments made up to that point were not meant to be taken seriously and were just venting. I accept that Shawn Folkes may have had a change of heart 15 hours and 45 minutes after posting the original threatening remarks.
[65] I have considered the remarks posted by Shawn Folkes to Marco Brayley at 6:45 p.m. I have also considered the context of the videos about racism by the police which had been linked by Shawn Folkes shortly before the threatening marks were posted at 2:59 a.m. I am not left with a reasonable doubt that the original posting at 2:59 a.m. was simply venting. Based on the plain meaning of the words posted by Shawn Folkes at 2:59 a.m. as well as the comments that he posted up to and including his reply to Steve Scott at 5:51 p.m. (over 14 hours after the original post) I am satisfied beyond a reasonable doubt that Shawn Folkes meant his threats to kill police officers to be taken seriously by third parties (i.e. anyone reading his comments on Facebook) when he posted them at 2:59 a.m.
Conclusion
[66] For these Reasons I find that the Crown has proven its case beyond a reasonable doubt and that Shawn Folkes is guilty of the offence of Threatening Death to the police. The Sentencing Hearing will take place on September 24, 2018.
Released: September 24, 2018
Signed: Justice S.C. MacLean