Court File and Parties

Court File No.: Brockville 23-19100684 Date: August 29, 2025 Ontario Court of Justice

Between: His Majesty the King — and — Navid Khairkhahi

Before: Justice J.R. Richardson

Heard: July 18, 2025

Reasons for Judgment Released: August 29, 2025

Counsel:

Michael Purcell, counsel for the Crown
Will Murray, counsel for the accused

Introduction

[1] Despite constant criticism, Canada has one of the best systems of criminal justice in the world.

[2] The strength of our system depends on:

a) Judicial officers who are truly independent from the government or any other external factor;

b) Crown counsel who argue passionately, act as quasi Ministers of Justice and push cases to their legitimate strength;

c) Defence counsel who argue passionately and vigorously on behalf of their clients;

d) Police officers who listen to both sides and exercise independent judgment with respect to whether to initiate a criminal prosecution; and

e) Witnesses who make complaints to the police and testify in court without fear.

[3] All of these players are supported by a myriad of others: courts services, victim services, probation and parole, detention centres, reformatories, mental health workers, diversion workers, Corrections Canada and countless others.

[4] All of these individuals are all included in the definition of "justice system participant" in section 2 of the Criminal Code.

[5] When someone interferes with a justice system participant, and attempts to bribe, influence, harass, extort, threaten, or commit acts of violence towards them, it is a serious crime.

[6] This crime is not merely committed against the individual, but against the system and society as a whole. Such conduct offends and undermines our system of justice and is rightly an affront to all Canadians who want to live in a free and democratic society.

[7] As I will discuss, individuals who commit such offences should expect to be treated severely and be sentenced to a period of incarceration. Denunciation and deterrence are the primary sentencing considerations.

[8] In this case, the accused intimidated a provincial prosecutor.

[9] The accused also suffers from Schizophrenia and Obsessive Compulsive Disorder (OCD) and related mental health issues.

[10] The issues I must decide in this case are:

a) The length of sentence that should be imposed upon the accused; and

b) Whether his mental health issues are sufficient to diminish his moral blameworthiness so as to reduce his sentence and, in particular, render a conditional sentence a fit sentence.

Facts

[11] A detailed Agreed Statement of Facts was filed as Exhibit 1.

[12] On February 21, 2023, the accused was charged with various offences under the Highway Traffic Act which were alleged to have occurred in the Township of Elizabethtown.

[13] On April 23, 2023, the accused emailed GM, the prosecutor assigned to his case, to initiate negotiations toward resolution. The accused attached to this email a copy of his Private Investigator's Licence. He complained that the charging officer lied. He stated that the sooner the matter was settled, the better. GM did not respond. A copy of this email was filed as Exhibit 5.

[14] Two days after he sent the email, GM was in the Provincial Offences Court. The accused spoke to him. He was adamant that the charges be withdrawn or reduced. GM told him that he could take the matter to trial.

[15] Three days later (April 28, 2023), just after 1:00 am, GM and his wife DTM received voice messages on their cell phones. The voice leaving the message said, "Check your email".

[16] GM checked his email and saw an email, sent at 1:01 am, from the accused which stated as follows:

Hello [GM]:

Hope you and your family are healthy and safe at [GM and DTM's home address].

As a follow up to my previous email, I am hoping you will be a reasonable man to consider a fair and early resolution. I am willing to accept a speeding charge and a charitable donation to a local hospital in Brockville.

Please let me know how you feel about it.

Stay safe,

Navid Khairkhahi

[17] GM and DTM contacted police. They felt intimidated, threatened and they feared for their safety.

[18] Although it remains unknown how exactly the accused obtained GM and DTM's home address, private investigators have access to Ministry of Transportation records.

[19] A transcript of GM's statement to police was transcribed and filed as Exhibit 2. In the statement GM states that he took the email as a threat, because there was a reference to him and his family being safe. He wondered how the accused knew he had a family. He stated that he was fearful "because anything can happen". He stated that he could "handle it" but he was not "happy with it."

[20] A transcript of DTM's statement to police was filed as Exhibit 3. She stated that in all the years that GM has been doing prosecutions, he has never had someone contact him at home. She opined that the accused's contact "in the middle of the night" was designed to intimidate. With respect to the issue of fear, she stated, "Yes and no." She stated that she did not know the accused so she did not know what he was capable of. She stated that, "We're being more careful for sure." She added later, "…it's worrying in that we don't know what he's capable of."

[21] The Crown did not file a Victim Impact Statement for either GM or DTM.

Dr. Ward's Report

[22] Defence counsel referred the accused to Dr. Helen Ward for an assessment. A copy of that assessment dated July 2, 2024 was filed on consent (Exhibit 4, Tab 3). Dr. Ward is known to this Court to have the qualifications as a Forensic Psychiatrist. The Crown did not oppose her expertise or the content of the report. The report reveals as follows:

a) The accused was born and raised in Toronto. He had a normal birth. His parents separated when he was ten. He lived with his mother and saw his father, who moved to the United States, from time to time.

b) The accused reported being the victim of sexual abuse when he was eight by a family friend. He did not disclose it.

c) He said that he developed OCD at about the same time.

d) He felt isolated and did not have a lot of friends in school.

e) In grade 7, he got in trouble for theft. He skipped school.

f) He started smoking cannabis in Grade 9.

g) He graduated from high school in 2010.

h) The accused's father told Dr. Ward that the accused told him that he could hear voices while they were on a trip together when he was approximately 12.

i) In Grade 9, the accused told his father that he had a chip in his head from a vaccination. He also became paranoid that his phone was causing radiation. He told Dr. Ward that he wrapped a magnet around his head to neutralize the chip.

j) The accused's father noted that when he was in Grades 10 through 12, the accused became very interested in politics and spent up to six hours a day studying. He drank large quantities of spring or purified water but refused tap water. He expressed the belief that tap water was toxic and would go up to a week without showering. He refused to eat food that his mother prepared because he thought the pan she used was toxic. He followed a radio show hosted by a conspiracy theorist.

k) The accused's father reported that when the accused was 18, he started spending hours by himself in a forest. There was one occasion where his mother reported him missing and he was found in the woods reading a book.

l) The accused enrolled at the Scarborough campus of the University of Toronto. He reported a breakdown in his first year. He reported depression. He went to see a therapist and his family doctor. He had difficulty focussing on his schoolwork. He obsessed about toxins in the environment. He lost a lot of weight because he became focussed on his diet. He wore a balaclava to block radiation from his phone or computers.

m) He was assessed by Dr. McIntosh when he was 18. Dr. McIntosh was not sure whether the accused's symptoms supported a diagnosis of schizophrenia or OCD. The accused refused medication. Dr. McIntosh referred the accused to the First Episode Psychosis program at CAMH. The accused reported refusing the medication that they prescribed because it made him crazy.

n) After leaving university in 2013, the accused worked as a security guard or a concierge.

o) He returned to university in 2019, to study French literature. He was successful in completing his degree in 2023. He has supported himself through working as a limousine driver, working as a private investigator, and tutoring and interpreting French.

p) In 2021, the accused was involved in a car accident. He suffered minor physical injuries but became more anxious.

q) There is a family history of anxiety disorder and a more remote family history of schizophrenia.

r) When Dr. Ward asked him about the Highway Traffic Act charges, he admitted that he or his friend deliberately crashed the rental car. They did not call police right away.

s) When asked about the charges before the Court, the accused stated:

i) That GM was "not wanting to resolve things, staring me down in Court, trying to intimidate me. That day, I felt compelled to put a scare in him, put him in his place. That's what started the trouble. Technically, I did not make any threats to him. (They were) sarcastic remarks."

ii) He perceived GM as a bully who was trying to intimidate him to plead guilty. He stated, "I felt like it was my ethical obligation to hammer him."

iii) He acknowledged emailing GM. He admitted to wanting GM "to be scared" and "not to mess with me."

iv) He stated that he did not have any regrets about the email. "To be honest, I have no regret. No sympathy for him. No big regrets – I could go to jail. Sometimes I feel obligated, no matter the consequences." He then went on a tangent about being fired from employment with CBC and pursuing a Human Rights complaint.

v) He told Dr. Ward, "Feeling compelled to do something seemingly outrageous is nothing new – just this time I got in trouble. Once I have the compulsion, there is nothing stopping me."

vi) He now denies being focussed on various toxins.

t) He reported "intrusive thoughts" which are "sexual thoughts that he does not want". He copes by going into the forest and using a herbal remedy.

u) He continues to believe that "big pharma" is evil, vaccinations are not safe and technology is being used against people.

v) He does not like close relationships. He prefers his own company.

w) He wants everything that he does to be done perfectly. He told Dr. Ward he was often late with assignments because of his perfectionism.

x) The accused's father reported that the accused struggles to understand other people's opinions and he has difficulty accepting fault when he is wrong.

y) Dr. Ward diagnosed as follows:

i) OCD.

ii) Aspects of Obsessive Compulsive Personality Disorder (OCPD). Dr. Ward explained that this is an "entirely separate" diagnosis from OCD and describes it as "a pervasive pattern of preoccupation with orderliness, perfectionism and mental and interpersonal control". She opined that the accused's "rigidity and stubbornness and his perfectionism in specific settings" pointed to this diagnosis, but stopped short of making a complete or final diagnosis.

iii) A "psychotic illness", Schizophrenia. Dr. Ward described the accused's level of Schizophrenia as "mild" and noted that it has "never been treated", likely because he has never met the criteria for involuntary admission and treatment.

iv) Symptoms of Schizoid Personality Disorder (SPD). Dr. Ward noted that the accused demonstrates "a pattern of detachment from social relationships and a restricted range of expression of emotions in interpersonal settings". Like the OCPD diagnosis, however, Dr. Ward stopped short of making a complete and final diagnosis because he does not meet enough criteria.

v) Dr. Ward opined that the accused's victimization as a child "likely triggered" his OCD and "contributed to the development" of OCPD and SPD symptoms.

vi) As a result of these mental health issues, Dr. Ward opined that the accused is "alienated from society", although he is not antisocial.

vii) She also opined that his response to GM "was a result of his personality disorder-driven defensive behaviour and rigid interpersonal style".

viii) Dr. Ward did not believe that the accused's psychosis played a role in the commission of the offence. She opined, however, that "his untreated psychosis has contributed to his sense of alienation and made it more difficult for him to engage with or trust in other people." She did not endorse an opinion that he was "not criminally responsible" within the meaning of section 16 of the Criminal Code.

ix) Dr. Ward was careful to reinforce her opinion that the accused does not have a history of antisocial behaviour and that he was not a person with a grudge against society, women, law enforcement or prosecutors. She stated, "Within his limitations, he is trying to be part of society. He is just doing it badly."

x) Dr. Ward recommended group therapy for anger management and interpersonal effectiveness. She did not recommend pharmacological intervention.

Flemingdon Health Records (Dr. McIntosh) – 2011-2012

[23] As noted in Dr. Ward's report, the accused was previously seen by Dr. McIntosh at the Flemingdon Health Centre (Toronto East General Hospital) in 2011-2012. Mr. Murray filed copies of those records (Exhibit 4, Tab 12). Those records reveal that:

a) He was referred because of "bizarre behaviour".

b) He expressed concern that he had been implanted with a microchip. He wore magnets to counteract the effects of this.

c) He also expressed concern about radiation.

d) He felt that his mother, who was part of the reason for his referral, was exaggerating his condition.

e) Dr. McIntosh was unable to pin down whether the accused met the criteria for OCD or Schizophrenia.

f) He recommended family therapy, prescription medication (Paxil, a well-known antidepressant). He noted that the accused declined prescription medication.

[24] In a follow up note, dated January 2012, Dr. McIntosh noted:

a) The accused did not take the anti-depressant medication but did take quetiapine (an anti-psychotic medication, commonly referred to as Seroquel) at the lowest possible dose.

b) The accused "continued to have unreasonable concerns about contamination and environmental issues".

c) If the accused did not take the medication, he would need to be referred to the "first episode psychosis program".

August 2024 Admission to CAMH

[25] The accused was subject to a Form 42 under the Mental Health Act on August 13, 2024 (Exhibit 4, Tab 10).

[26] Progress notes (Exhibit 4, Tab 10), reveal that:

a) The accused was originally admitted on a Form 1.

b) The accused indicated that, "I threatened people". He was unable to remember the nature of the charges before the Court, other than he threatened someone.

c) The accused was wearing multiple winter coats (in August) out of concern that he would be exposed to radiation. He complained of being overheated and having hot flashes.

d) He stated that he had "intrusive thoughts" and he speaks in an unknown language to combat those thoughts. The thoughts include violence, crashing cars, choking people and gross sexual thoughts. He believed that people were after him and he was under covert video surveillance.

e) He declined medication because he knew he was going to calm down.

f) He admitted to crashing a car by driving it into a barricade two years previously.

g) He believed vaccination would be used to control him.

h) He complained that he is unable to sleep in his mother's house, so he goes to sleep in the forest.

i) He did not agree with the past diagnosis of schizophrenia.

j) Given that there were no longer "acute safety concerns", he was no longer certifiable.

k) The accused was noted to be "marginally capable to refuse treatment."

l) The accused was offered voluntary admission to hospital, but he declined.

[27] Mr. Murray filed additional copies of records related to the accused's admission to the CAMH on August 19, 2024 (Exhibit 4, Tab 7). Those records reveal as follows:

a) He was referred to the emergency department of CAMH on the recommendation of his family physician on August 13-14 out of "concern for increasing intrusive symptoms, anger and anxiety." There he was given a provisional diagnosis of OCD. Prescription medication was recommended but he declined.

b) He reiterated beliefs in contamination of the water supply, worries about pollution, and contamination of doorknobs. He reported "intrusive thoughts of a sexual nature" and impulsivity.

c) He endorsed what the notes refer to as "odd beliefs" including persecutory beliefs towards Free Masons and Prime Minister Trudeau.

d) Dr. Zhang, the resident in psychiatry who saw the accused once he was admitted, explained to the accused that his intrusive thoughts and anxieties were "of a psychotic nature."

e) Dr. Zhang suggested anti-psychotic medication and cognitive behaviour therapy.

f) The accused stated he did not want to take medication but was interested in pursuing CBT.

g) He also stated, in an apparent reference to Dr. Ward's July report, that he had been diagnosed previously with schizophrenia/psychosis and he did not agree with that diagnosis.

h) Dr. Zhang noted that "[patient] has limited insight".

[28] Mr. Murray suggested in his submissions that the accused's admission to CAMH was as a result of difficulty adjusting to Dr. Ward's diagnosis. There is no evidence of this.

North York General Hospital Programs

[29] Mr. Murray filed documentation, dated May 28, 2025, from the North York General Hospital (Exhibit 4, Tab 2) which revealed that:

a) The accused completed a Cognitive Behaviour Therapy Group program in Anger Management and a Dialectical Behavioural Therapy Program for Interpersonal Effectiveness.

b) During intake the accused indicated that he regretted threatening GM and he regretted the impact that his actions had on GM and his family.

c) The Dialectical Behavioural Therapy Program for Interpersonal Effectiveness Skills consisted of 16 on-line or in-person weekly sessions lasting 40 minutes each.

d) The Cognitive Behaviour Therapy Program for Anger Management consisted of six group sessions lasting for 90 minutes each. This program was held virtually.

e) The accused was described as "cooperative and motivated to learn how to apply the skills he was acquiring."

f) The accused expressed interest in completing a one-year Canadian Mental Health Association Dialectical Treatment Program and he was on the waiting list for that program.

Defence Submissions

[38] Defence counsel argued that a conditional sentence of 12 months, followed by two years of probation was the appropriate sentence for the accused. He invited the Court to sentence the accused to a longer period of Conditional Sentence if the Court were of the view that this was warranted.

[39] Defence counsel pointed out that the accused has entered a guilty plea and he does not have a criminal record. There have been no breaches since he was charged. He has employment.

[40] Defence counsel noted that the charges before the Court have spurred the accused to take huge steps towards his rehabilitation. He pointed out that prior to Dr. Ward's report, very little was known about the accused's mental health situation. As a result of Dr. Ward's report, he has taken steps and is doing much better. He is therefore a good candidate for a conditional sentence and probationary disposition.

[41] I note that I disagree with part of these submissions. As can be quickly garnered through a review of the documentation summarized above, the accused's mental health condition was first outlined by Dr. McIntosh in 2011-2012. The accused did not, however, accept it, nor did he accept some of Dr. McIntosh's recommendations, particularly treatment with anti-depressant medication. There was some compliance with the recommendation that he take anti-psychotic medication, but only on the minimum dose, and it is unknown how long that continued.

[42] I agree that the charges before the Court, and in particular, the Crown's position that the accused should be sentenced to a substantial period of incarceration, have fueled the completion of significant therapeutic treatment. As evidenced by the August 2024 admission to CAMH, however, the accused still does not respect the opinion that he suffers from schizophrenia (now hypothesized by one (Dr. McIntosh) and formally diagnosed by two (Dr. Ward and Dr. Zhang) psychiatrists), and he continues to refuse pharmacological treatment for this disease.

Crown Submissions

[43] In delightfully succinct and to-the-point submissions, Crown counsel argued that the appropriate disposition was two years of custody, to be followed by probation. The Crown stated that, but for the accused's mental health problems, the Crown would have sought two and a half years in custody.

[44] The Crown cited the following aggravating factors:

a) The accused engaged in persistent goal-oriented behaviour. This was not a situation where he had a spontaneous threatening outburst in court or where he was overcome by emotion. His actions were calculated and deeply personal. They required a degree of planning. He used several means to intimidate the victims, including email, phone and regular mail. The phone contact was directed to the victims' professional and personal lines. He engaged in a campaign, albeit a brief one.

b) The accused engaged in threatening behaviour, not only toward GM, but also toward DTM and members of GM's and DTM's family. DTM and the family were not involved with the accused yet he personalized the threats against them. Crown counsel argued that targeting a justice system participant's family and spouse is highly aggravating, more offensive and extremely grave. I agree.

c) The Impact on the victims. The Crown pointed out that there was a call in the early hours of the morning. The tone of voice and the contents of the email caused them to feel intimidated, threatened and fearful. Although they declined to provide a Victim Impact Statement, the Court ought to find that the accused's conduct had a significant impact upon them. Crown counsel argued that although the response of the victims was measured and "not over the top", this was an extraordinary and exceptional situation. As I will point out below, I agree with the Crown's submissions about Victim Impact.

[45] The Crown cited the following mitigating factors:

a) The accused entered a guilty plea. The Crown noted, however, that the mitigating effect of the guilty plea was somewhat offset by the fact that the charges were commenced two years ago.

b) The accused's mental health problems. The Crown acknowledged that there was a nexus between the accused's mental health problems and the offences before the Court. The Crown argued, however, that while the accused's mental health issues colours his conduct, it does not excuse it, does not fully explain it and should not be given undue weight.

Defence Reply

[46] In reply, defence counsel addressed Crown counsel's submissions with respect to victim impact, arguing that there was no evidence of victim impact.

[47] With respect to this argument, I was advised during the course of the submissions that both GM and DTM are former police officers. I find that they tried to take what happened to them in their stride, but they contacted police and reported it because they did not know the accused and did not know what he was capable of. I find that they reacted stoically.

[48] Just because a victim reacts stoically and does not seek to file a victim impact statement, does not mean that they have not suffered some impacts. Their fear for their safety and concern is self-evident from the act of calling the police. The gravity of the accused's crime is not diminished by the fact that the victims opted not to file a Victim Impact Statement. Filing one is their right. It is not an obligation, nor is it tantamount to an admission that there are no impacts or trifling impacts.

[49] R. v. Blackman, 2022 ONSC 3649, is another case of Intimidation of a Justice System Participant, where the victim, an undercover police officer, did not file a Victim Impact Statement. Justice Spies noted at paragraph 12 and 13:

I have no evidence from the undercover officer TK about how these offences impacted him, but I can draw certain reasonable inferences.

I do not know to what degree TK actually feared for his personal safety after these threats were made, but again I can infer that he must have at least to some degree been concerned for his safety. He had been outed as an undercover officer in the context of the arrest of many individuals involved in very serious offences. It would only be natural that he would have some additional concern above and beyond the fear an officer has in what can be a dangerous job. As I said in my Judgment at para. 130, the only reasonable inference to draw from all these circumstances, is that Mr. Blackman at least would have foreseen that his posts in the two images would provoke a state of fear in TK that he might be harmed and that this might impede his willingness to testify against Mr. Blackman. [emphasis mine]

[50] I find similarly here with respect to the accused. He foresaw that his communications toward GM and DTM would provoke a state of fear in them, which might impede GM's willingness to prosecute him, or might force GM to capitulate.

Mr. Khairkhahi's Allocution

[51] When I asked the accused if there was anything he would like to say before I sentenced him, he advised that:

a) He had an idea in his mind of what should happen in his Provincial Offences matter.

b) He felt that GM was "rude and dismissive" of his point of view.

c) He felt that GM had a "bully personality".

d) He felt that it was his "duty" to put GM in his place.

e) After reviewing his course of action, he realized that he was wrong to make that assumption.

f) He now recognizes that GM was doing his job as best he could.

g) He is sorry for being inconsiderate.

h) He is trying to have "good thoughts" in his mind and follow the golden rule.

[52] I note that the accused's mother, father and sister were in Court with him when he entered his plea and when the sentencing was argued. I acknowledge that they have done their best to try to ensure that he gets help for his mental illness, and I am sure that his plight has left them at their wit's end.

Analysis

Sentencing Provisions in the Criminal Code

[53] Section 423.1 states:

423.1 (1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in

(a) a group of persons or the general public in order to impede the administration of criminal justice;

(b) a justice system participant or military justice system participant in order to impede him or her in the performance of his or her duties; or

(c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization.

(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years.

[54] "Justice system participant" is defined in section 2 of the Criminal Code:

justice system participant means

(a) a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council,

(b) a person who plays a role in the administration of criminal justice, including

(i) the Minister of Public Safety and Emergency Preparedness and a Minister responsible for policing in a province,

(ii) a prosecutor, a lawyer, a member of the Chambre des notaires du Québec and an officer of a court,

(iii) a judge and a justice,

(iv) a juror and a person who is summoned as a juror,

(v) an informant, a prospective witness, a witness under subpoena and a witness who has testified,

(vi) a peace officer within the meaning of any of paragraphs (b), (c), (d), (e) and (g) of the definition peace officer,

(vii) a civilian employee of a police force,

(viii) a person employed in the administration of a court,

(viii.1) a public officer within the meaning of subsection 25.1(1) and a person acting at the direction of such an officer,

(ix) an employee of the Canada Revenue Agency who is involved in the investigation of an offence under an Act of Parliament,

(ix.1) an employee of the Canada Border Services Agency who is involved in the investigation of an offence under an Act of Parliament,

(x) an employee of a federal or provincial correctional service, a parole supervisor and any other person who is involved in the administration of a sentence under the supervision of such a correctional service and a person who conducts disciplinary hearings under the Corrections and Conditional Release Act, and

(xi) an employee and a member of the Parole Board of Canada and of a provincial parole board, and

(c) a person who plays a role in respect of proceedings involving

(i) security information,

(ii) criminal intelligence information,

(iii) information that would endanger the safety of any person if it were disclosed,

(iv) information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization, or

(v) potentially injurious information or sensitive information as those terms are defined in section 38 of the Canada Evidence Act.

[55] Sections 718, 718.02, 718.1 and 718.2 of the Criminal Code state:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 other persons 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 to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

718.02 When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) 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.

[56] I note that Parliament has mandated that intimidation of a justice system participant is a very serious crime. It is punishable by up to 14 years of imprisonment. It is a strictly indictable offence. An accused charged with this offence has the right to elect his or her mode of trial and the right to request a preliminary inquiry.

[57] Pursuant to section 718.02, I am also statutorily required to give primary consideration to the objectives of denunciation and deterrence.

Caselaw with respect to Intimidation of a Justice System Participant

[58] I have not summarized the fulsome submissions that both counsel made with respect to the caselaw. The Crown filed one volume of cases and defence counsel filed three. I am grateful to them for the thoroughness of their research.

[59] In R. v. Blackman, supra, the offender was charged with intimidating a justice system participant and uttering a threat to cause death or bodily harm. The victim was an undercover police officer involved in an investigation with respect to whether the offender was trafficking in firearms.

[60] Just before the officer was about to give evidence in a preliminary inquiry, the offender posted an image of the officer on his Instagram account. He made comments that he and his shooters were coming for the officer. The Crown sought two and a half years. Defence sought two years plus one day.

[61] The offender was 44. He had two children. He had a very deprived childhood. He was employed as a barber. He was ultimately acquitted on the weapons charges. The allegations were out of character. He did not feel he should be punished for making a mistake. He had no criminal record. Specific deterrence was not a concern.

[62] Citing R. v. Hopwood, and R. v. Williams, both referred to in more detail infra, Justice Spies sentenced the accused to two and a half years. She noted that the offender did not make a "spur of the moment decision" to intimidate the officer.

[63] In R. v. Lilly, 2023 NSCA 80, the offender was convicted of intimidating a justice system participant. The victim, a Correctional Officer, was a witness against the accused in a matter which involved an attack on another inmate. During another shift, the accused told the victim "don't testify" and "stop snitching". He announced this in the custodial environment where the victim worked so that it could be heard by other inmates.

[64] The trial judge sentenced the accused to 25 months imprisonment. The Nova Scotia Court of Appeal dismissed the appeal, noting:

a) Denunciation and deterrence were the primary sentencing objectives.

b) Section 423.1 protects individuals who work in the justice system and are vulnerable to attack.

c) Deterrence and denunciation of conduct by inmates that could adversely affect correctional officers is necessary to maintain order within correctional institutions.

d) Intimidation of a justice system participant is dangerous for the justice system. The community may lose confidence if criminal charges are not decided on their merits but are resolved because witnesses will not testify.

e) The offender was not motivated to engage in rehabilitation-oriented endeavours.

f) The words that the offender spoke were overheard by others, both guards and inmates in the institution.

g) The victim suffered significant and ongoing levels of fear and anxiety.

[65] In R. v. Crossley, 2023 ONSC 7018, the offender was convicted of two counts of Intimidation of a Justice System Participant, Uttering a Threat (against a Judge), Uttering a Threat to a Probation Officer to destroy a Buddha statue, and two counts of criminally harassing the Detective who investigated him.

[66] The offender sent an email to a judge, who was the trial judge on mischief charges he was facing, indicating that he has issued "the command for God to slay her Majesty".

[67] He followed this up with a letter to the judge's chambers, referring to the fact that the trial judge found him guilty when he should have been acquitted. The letter went on to indicate that he had issued a command for God to slay Her Majesty, and that it is in the interest of Her Majesty to have the command to be reversed before it is too late. He urged the judge to take "urgent action" and declare a mistrial. He stated that, "If her neck is as stiff and obstinate as Pharoah's neck was in the days of Moses then we will surely be saying goodbye to Her Majesty soon and/or some/many of her servants."

[68] The emails to the detective were of a similar ilk. In one email, the offender wrote, "Because of your direct participation in my prosecution, I fear for your safety and for the safety of those you love. I suspect God will strike those involved with my prosecution first." Later in the email, he went on, "Please consider this matter diligently. Who likes carnage? Not me."

[69] He proceeded to trial and was found guilty by a jury. A pre-sentence report and a section 21 report was prepared to assist in sentencing. The report revealed that:

a) The offender had a history of schizophrenia.

b) The offender did not adhere to prescribed medication.

c) The offender had a history of threats of harm toward individuals in government and property.

d) The offender has "views of a religious nature that indicate some degree of intolerance to other sentiments and beliefs."

e) The offender felt that he was morally justified for his intended actions and beliefs.

f) His schizophrenia and ongoing beliefs "raise concerns that there are delusional ideas at play".

g) St. Lawrence Valley Correctional Centre would be an appropriate placement if he received a carceral sentence.

[70] The Judge, who was the victim, did not file a victim impact statement.

[71] The Crown sought two and a half years in the penitentiary. Amicus for the offender argued for a conditional sentence followed by a three-year probation order.

[72] Justice Parfett sentenced the accused to two years and three months incarceration, and three years probation having regard to the following factors:

a) The offences committed by the offender were serious and deserved a denunciatory sentence.

b) Section 423.1 protects individuals who work in the justice system and are vulnerable to attack. Such offences ordinarily attract a penitentiary term of imprisonment.

c) The offender committed six offences over a span of 45 days.

d) There were three victims.

e) The offender had a criminal record.

f) The offender engaged in persistent goal-oriented behaviour.

g) There was no proven nexus and no formal diagnosis of the offender's mental illness. His illness could be taken into account in assessing sentence, but they did not go so far as to reduce his sentence on compassionate grounds (citing R. v. Prioriello, infra).

h) There was no evidence that a lengthy sentence would have a severe negative effect on the offender (also citing R. v. Prioriello, infra).

[73] In R. v. Mruk, 2025 BCPC 33, the offender was found guilty of one count of intimidating a justice system participant after a trial. The offender sent the victim, who was to testify with respect to an incident involving one of his friends, a text message in which the victim was admonished to "keep your word n show up for court" and "…the law needs you to tell them YOU lied!!!! It is all for the best and everyone involved Especially YOU!!". After receiving the message, the victim asked the offender to call her, ostensibly because she did not recognise the number that the message emanated from. When he called her, the offender reiterated the contents of the text message and told the victim that he knew where she lived.

[74] The Crown sought nine to twelve months. The defence sought six months. The offender was 47. He grew up in a difficult home. He previously worked as a long-haul truck driver but had been on social assistance for seven years. He is an alcoholic. He had a dated criminal record, which included offences of uttering threats and public mischief.

[75] There was evidence that after the threat the victim isolated herself, changed her routine, changed her clothing and her hairstyle. The Court described the offence as pre-meditated and "not a spur of the moment event." He suffered from poor health, including stroke, blood clots and the loss of his toes. He was a caregiver for his elderly mother. After citing a number of cases, Justice Tam found that:

a) The range of sentence is between nine months and two and a half years.

b) Deterrence and denunciation are the dominant principles.

c) The victim is not just the person who received the threat, it is the justice system as a whole, which is a fundamental aspect of a free and democratic society.

d) 15 months was the appropriate sentence. But for the accused's health problems and the fact that he was the caregiver for his mother, the appropriate sentence would have been 18 months.

[76] In one case cited by defence counsel, R. v. Sorbara, 2017 BCPC 77, the offender, who had a lengthy record, received a 75 day sentence for threatening to find the home of the Judge he appeared before and burning it down. In R. v. Redgun, 2016 ABPC 236, an indigenous offender who threatened a witness in a prosecution against her daughter, received a suspended sentence and two years probation.

[77] In my view, Sorbara and Redgun are far outside the bounds of what is appropriate for this offence and I will not follow them. They do not pay sufficient heed to the importance of denunciation and deterrence.

[78] Defence counsel suggested that intimidation of a witness is more serious and should be dealt with more harshly than intimidation of other justice system participants. He filed R. v. Michel, 2010 NWTTC 9 to support that view.

[79] In that case Justice Schmaltz found at paragraphs 16 and 17:

'Justice system participant' is broadly defined in the Criminal Code to include many groups, witnesses, and prospective witnesses being one of those groups. Many of the groups of participants that this section applies to, e.g. prosecutors, lawyers, officers of the court, even judges, play a role in the justice system, but their roles in not confined to a specific case. If the intimidation of a member of one of these groups is successful, there is likely another member of the group that can step in and the process will continue – there will always be another prosecutor, another lawyer, another judge, another court officer. Intimidation of any of them while still a serious crime will not necessarily frustrate a prosecution.

But if an accused successfully intimidates a witness, the result can be that the prosecution of that accused will be frustrated. Intimidation of a witness can result in significant damage to the administration of justice. When a matter is set for trial and a witness does not attend, or does attend but refuses to testify, or recants on a previous statement, and the prosecution is terminated, the community may well lose respect for and confidence in the criminal justice system. If the process is frustrated, a criminal charge will not be resolved on its merits. When an accused attempts to influence a witness to achieve such a result, there has to be meaningful consequences that will deter both the accused and others from such tactics and will express the court's and the community's condemnation of this conduct.

[80] This was the only case provided to me that makes this distinction. I do not agree with it. If Parliament had intended to single out witnesses and prospective witnesses as a special category of "justice system participant", the intimidation of whom would be deserving of a greater degree of punishment, it would have said so. It did not. The fact that, for anyone other than witnesses, "another" justice system participant can easily replace them, ignores the significant harm that can be caused by those who commit those offences against their victims and the system as a whole.

Caselaw with respect to Obstruction of Justice

[81] As I have pointed out, the following principles set out in cases dealing with sentencing for Obstruction of Justice have been considered and relied on in cases of Intimidating a Justice System Participant:

a) "[O]bstruction of justice goes to the very heart and foundation of our criminal justice system": R. v. Williams, 2016 ONCA 937 at paragraph 13.

b) Asking a witness to lie in Court should normally attract a penitentiary term. In a case where the offender sent a co-accused a note asking the co-accused to lie, the appropriate sentence is two and a half years: R. v. Hopwood, 2020 ONCA 608.

Caselaw with respect to Mental Illness As a Mitigating Factor on Sentence

[82] As society and the Court has gained a great understanding of the role played by mental health problems in criminal behaviour, mental health problems are increasingly recognised as a mitigating factor on sentence.

[83] In Crossley, Justice Parfett cited the following two-step process set out in the Court of Appeal's decision in R. v. Prioriello, 2012 ONCA 63 at paragraphs 11 and 12 for determining the nature and extent to which mental illness is a mitigating factor:

a) First, the offender must show a causal link between his illness and his criminal conduct.

b) Second, there must also be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds.

[84] Defence counsel argued strenuously that Prioriello must be read in the light cast by the Court of Appeal's decision in R. v. Fabbro, 2021 ONCA 494, the Supreme Court of Canada's decision in R. v. Hilbach, 2023 SCC 3 and the Court of Appeal's decisions in R. v. Batisse, 2009 ONCA 114, R. v. Ellis, 2013 ONCA 739, R. v. Husbands, 2024 ONCA 155 and R. v. Lojovic, 2025 ONCA 319. In making this argument, defence counsel was essentially arguing that Justice Parfett's focus on denunciation and deterrence in Crossley reached too far.

[85] Fabbro involved the case of an offender who suffered from mental health problems and addiction and who was found guilty of possession of an unloaded sawed-off shotgun with nearby ammunition. His possession was for the purpose of committing suicide. He barricaded himself in his vehicle with the firearm in his mouth. The ensuing stand-off with police lasted several hours before the offender threw the gun out the window. He was admitted to hospital under the Mental Health Act. After release, he completed residential treatment, participated in the methadone program and sought help from a psychiatrist. He was charged with a number of offences arising from his possession of the weapon, pleaded guilty and sentenced to two years less a day in reformatory, followed by three years probation. The trial judge found that denunciation and deterrence were the primary sentencing considerations. The offender appealed his sentence.

[86] The Court of Appeal found that the sentencing judge erred by placing undue emphasis on denunciation and deterrence and failing to consider the causal link between the offender's mental health and his criminal conduct. The Court found that denunciation and deterrence was attenuated by the fact that the accused intended to commit suicide, not harm other members of the public.

[87] The Court of Appeal also found that a sentencing court must "….determine the extent to which [addictions and mental health] contributed to the appellant's conduct and the impact of that finding on the appropriate sentence" (at paragraph 26). In this case, there was "ample evidence" and the "virtually inescapable" conclusion that there was a causal link between the mental health issues and the criminal conduct, as evidenced from the mental health documentation filed, his conduct on bail while being treated, the fact that he abided by his bail conditions without a breach.

[88] The Court of Appeal also noted at paragraph 27:

Even if denunciation and deterrence were the overriding objectives in this case, a sentence of imprisonment was not the only route to achieve them. A conditional sentence recognizes the seriousness of the offences while at the same time acknowledging and promoting the significant strides in rehabilitation that the appellant has made with the help of his family and the medical community. Imposing a custodial sentence was likely to have a serious negative effect on the appellant's progress and would not serve the genuine societal interest.

[89] In Hilbach, the Supreme Court grappled with the constitutionality of the minimum mandatory sentence formerly in place for cases of robbery with a firearm. Both the majority and the minority indicated that mental health problems were a mitigating factor on sentence. Neither judgment spent a great deal of time focussing on this issue.

[90] However, Hilbach was cited with approval by the Ontario Court of Appeal in Husbands. In Husbands, the offender received a life sentence for the offence of manslaughter. On appeal, the Court of Appeal essentially found, citing Hilbach, and R. v. Morris, 2021 ONCA 680, that the two-step process in Prioriello was no longer applicable and the sole question to be decided was whether the offender's mental health issues were linked to the commission of the offence so that they may serve a mitigating role in sentencing.

[91] As defence counsel pointed out, the Court of Appeal has averted to similar logic in other cases, including the recent case of Lojovic, a case involving a motor vehicle fatality.

[92] I note, parenthetically, that it is long established that the role of deterrence and denunciation is of particular import in such cases.

[93] In Lojovic, the Court found that the trial judge was in error for failing to consider the "central role" played by the offender's mental health issues in the commission of the offence, whether the mental health issues reduced his moral blameworthiness and rendered denunciation and deterrence less important. A ten-year sentence was reduced to an eight-year sentence.

The Mitigating Factors

[94] I find the following factors are mitigating:

a) The accused does not have a criminal record.

b) The accused entered a guilty plea. I find, however, that this is a case which the Crown would have had little difficulty proving if the accused had opted to proceed to trial. Nonetheless, his guilty plea spared GM and DTM from testifying and it spared the significant time that proceeding to a trial, and a preliminary inquiry may have squandered. In these days of significant backlogs and overburdened courts, he is entitled to credit for this.

c) In his allocution, the accused expressed remorse for his crime. I agree that Dr. Ward's report indicated that he was not remorseful and not possessing of significant insight with respect to the wrongfulness of his conduct and the potential effects on DTM and GM. I accept, however, that the course of treatment he has engaged in since Dr. Ward completed her report has helped the accused to see the error of his ways. He certainly now advertises that he does.

Whether he will be able to ultimately deliver is another matter. I note that I continue to doubt whether the accused truly accepts the diagnoses that have been made and he also continues to refuse pharmacological treatment. Unless he qualifies for involuntary committal under the mental health legislation, he has the right to control what goes into his body. I cannot force him to take it. I also find that the nature of his disease and his distrust of government and authority is what keeps him from accepting the diagnosis and taking his medication.

d) The evidence in this case firmly establishes that the accused's untreated Schizophrenia, OCD and related aspects or symptoms of those disorders was a material factor leading to the commission of the offence. Thus, he qualifies for a finding that he possesses diminished moral blameworthiness for the offence. There is a causal link between his mental illnesses and the offence. It mitigates the sentence that he should receive. I will discuss this in greater detail below.

e) The accused has completed significant counselling, including cognitive behavioural therapy and dialectical behavioural therapy suggested by Dr. Ward. He clearly has access to mental health services. He also appears to have a dedicated and alert family physician, who helped ensure that he was admitted to CAMH when he was in crisis in August 2024.

In an era where over one million Ontarians are without a family doctor and many who suffer from mental health conditions do not have access to mental health treatment and support, the accused is very lucky. He should listen to and follow the advice of his health care providers.

f) There has been no allegation that he has breached his bail conditions or committed another offence.

g) There is evidence that the accused has managed to garner gainful employment.

h) The accused has significant family support from his mother and father and his sister. He should listen to them more often and follow their advice. They have demonstrated through the intervention with the family doctor, which resulted in the emergency admission to CAMH last August, that they will not hesitate to try to intervene to ensure that he is treated.

The Aggravating Factors

[95] I agree with the aggravating factors set out by the Crown including:

a) This was a pre-meditated offence. Somehow, the accused found GM and DTM's home address. He also called their mobile phones and GM's work telephone in the middle of the night to ensure that they received the email that was designed to intimidate them. This is not a "spur of the moment" offence or an offence committed in the heat of a moment of anger.

b) As I have set out above, I agree that although the victims have responded professionally and stoically to what happened to them, there has no doubt been some trauma and worry on their part as a result of the accused's crime.

The Appropriate Sentence

[96] Before allowance for the mitigating effect of the accused's mental health problems, I find that the appropriate sentence for his crime is 18 months imprisonment and three years probation.

[97] As I noted, there are cases where the Court has imposed higher sentences. Many of those cases involve individuals with criminal records, cases where the offenders were not entitled to the mitigation that comes with a guilty plea, or cases where there was more than one victim. That is why I have settled on 18 months as the appropriate sentence.

[98] The issue then is what mitigation should the accused be entitled to because of his mental health problems? Is he entitled to further reduction of a carceral sentence, or, as sought by defence counsel, should he be sentenced to a conditional sentence?

[99] I am of the view that a conditional sentence is the right course of action for this offender and this offence. I state this for the following reasons:

a) The accused has taken great strides towards his rehabilitation by completing counselling. He still has more work to do, and I would have much more confidence if he was taking his prescribed medication and more accepting of the diagnoses, but I find that to sentence the accused to a period of incarceration would be sending him the wrong message and would work to counteract the efforts he has made toward his rehabilitation. Because of these efforts, a sentence that unduly focusses on denunciation and deterrence is wrong-headed because those sentencing principles have been somewhat attenuated.

b) As the Supreme Court of Canada found in R. v. Proulx, 2000 SCC 5, and as discussed by the Court of Appeal in Fabbro, a conditional sentence of imprisonment can achieve denunciatory and deterrent sentencing goals. This is so particularly when the conditional sentence includes optional conditions of house arrest which I intend to impose here.

c) I am concerned about the effect incarceration will have on the accused. He is a slight man who suffers from serious mental illnesses. Incarceration in an Ontario reformatory in 2025 invariably involves significant periods of lockdown, overcrowding and loss of privileges: see, for example, R. v. KT, 2025 ONCJ 234 and the Ombudsman's Annual Report for 2024-2025. The accused will not have access to the supports that he currently has out-of-custody to assist him with dealing with his mental illness. These hardships in custody will undoubtedly make his mental illnesses worse, not better. If the accused regresses, the threat he poses to the safety of the public will increase. If that were the case, I find that there is a far greater likelihood that he will be more dangerous upon leaving a correctional facility than he currently is now.

d) A conditional sentence allows the Court and the correctional authorities to focus on monitoring and tracking the accused to protect the public from the risk that he poses with significant conditions including a house arrest and rigorous counselling conditions.

e) A conditional sentence can be ordered for a longer period than a carceral sentence. I intend to order a maximum conditional sentence here.

f) A conditional sentence paired with three years of probationary supervision in the community will ensure that the accused receives rigorous, sustained monitoring and supervision for a period of five years. If he responds positively, an application can be brought to vary or change the conditions.

[100] I therefore impose the following sentence:

a) A conditional sentence of two years less one day conditional. The conditional sentence will include a requirement that he be subject to house arrest for 12 months. For the remaining period, he will then be subject to a curfew between the hours of 10 pm and 6 am. Both the house arrest and the curfew will be subject to GPS monitoring.

b) Three years of probation.

c) A section 109 Order for a period of ten years.

d) An Order for the taking of his DNA.

Released: August 29, 2025

Signed: Justice J.R. Richardson

R. v. Khairkhahi, 2025 ONCJ 467

Case Summary