CITATION: Her Majesty the Queen v. Boissoneau, 2016 ONSC 820
COURT FILE NO.: CR-15-0031
DATE: 2016-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
DWAYNE WILLIAM BOISSONEAU Appellant
Counsel: Ms. Celia Jutras, for the respondent, Crown Mr. Michael Hargadon, for the appellant, Dwayne Boissoneau
HEARD: January 12, 2016, at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Appeal
Introduction
[1] The appellant, Dwayne William Boissoneau, pleaded guilty to theft under $5,000, contrary to s. 334(b) of the Criminal Code, fraud under $5,000, contrary to s. 380 of the Code and threatening to cause death or bodily harm, contrary to s. 264.1 of the Code. He takes no issue with the sentences imposed for theft and fraud. However, he appeals from custodial portion of the sentence imposed by Mr. Justice F. Valente with respect to the charge of uttering threats.
[2] The sentence imposed for threatening was 365 days in prison less credit for 166 days of pre-sentence custody served, credited at a rate of 1.5 days for each day, resulting in a credit of 250 days of pre-sentence custody served. In addition, Mr. Boissoneau was sentenced to 30 days consecutive on the theft count and 30 days concurrent for fraud. The sentence included two years’ probation, a ten year weapons prohibition and a requirement to submit a sample of his DNA. The appellant does not take issue with the propriety of the probation or ancillary orders.
[3] Mr. Boissoneau has served his custodial sentence. Nevertheless, he submits that the sentencing judge erred in principle in imposing a sentence of one year in prison for the charge of threatening, based on the facts of the case, his background, including Gladue factors, the principle of proportionality, and by considering factors that should not have been considered.
[4] On a preliminary basis, the Crown argued that the appeal should be dismissed as moot, because Mr. Boissoneau has served his sentence and there is no longer a dispute to be adjudicated.
[5] Counsel agree that case law with respect to the unique facts of this case is sparse. They agree that Mr. Boissoneau is not a terrorist. However, the appellant submits that the court should provide guidance on the quantum and range of sentence for aboriginal offenders engaged in threatening in a “terrorism-like” context.
[6] The principles for considering mootness are set out in Borowski v. Canada (Attorney General) 1989 CanLII 123 (SCC), [1989] S.C.J. No. 14 (S.C.C.), paras. 31, 34, and 40. Hearing a Case that is moot is a discretionary matter. Although there is no adversarial contest remaining between the parties, and although hearing the appeal draws on scarce judicial resources, nevertheless, there is a public interest in the court exercising its law-making function by entertaining this appeal. For that reason, I exercise my discretion to hear the appeal.
Facts Underlying the Plea to Uttering Threats
[7] The exchanges referred to below occurred via the social medium of Twitter.
[8] On August 28, 2014, the appellant sent out two messages on his Twitter account. The first message, “Death to America,” was addressed to two other Twitter addresses. The second message, sent to one of the two addressees, read “I kill infidels.”
[9] On October 19, 2014, an individual identified as Abu Turaab al-Kanadi replied, “And the best outcome is for the righteous, 7128. Keep the brothers in your dua.”
[10] Then, on October 24, 2014, the appellant responded to Turaab’s Tweet in these words: “Hey brother, I’m ready to fight and support ISIS till death. I’m a Canadian and I’m sick of this [sic] fake politics here.”
[11] On October 28, 2014, a person named Kim sent the appellant a tweet, “Want a free ticket?” The appellant replied to Kim on November 6, 2014, saying “I will fight to the death of all this fake politics in US and Canada.” He also tweeted, “If I could afford it, I’d be gone by now.” Later that day he wrote to Turaab, saying, “Canada and US will suffer wrath of IS.” Below this tweet appeared the appellant’s tweet of October 13, 2014: “God willing, I will come and fight the cause.”
[12] On November 7, 2014, a twitter user identified as Abu Dujana tweeted to the appellant, “Who wants to do something to some top kaffirs? We get addresses for you.”
[13] The appellant responded to Dujana and another twitter user on November 10, 2014, “Give me Canadian addresses. I will ensure something happens.” This utterance comprised the threat with which Mr. Boissoneau was charged. Turaab and Dujana are considered to be Muslim extremists and supporters of ISIS.
[14] These exchanges associated with the appellant were detected by the RCMP Tactical Internet Operational Support Unit in November, 2014. In a cautioned statement, the appellant stated that he didn’t remember writing some of the tweets but acknowledged posting some “stupid stuff” that he shouldn’t have. His statement concluded,
I don’t know what to say, like I know you guys are going to look through the computers. There isn’t going to be – there won’t be much. I did have a Twitter account. I did say those things. I haven’t associated with anyone. I have never met a terrorist in person. I wasn’t really that serious about going down there. I wasn’t that serious. I was going through a rough time. I would test the system; I already know people get caught. I wanted to see if CSIS and stuff was really real, actually real, like I know they’re real but if they can actually detect stuff like that. I pretty much use only Facebook. I got no terrorists on there. I do Google stuff like Canadians joining ISIS and stuff. I’ve looked up the costs of plane tickets to go to Turkey; I have looked that up. And that Kim girl. I don’t even think she supports ISIS because a lot of times on her posts she seems kind of against that stuff.
[15] The court also heard that the appellant’s sister gave police a statement about the appellant. She advised that Mr. Boissoneau developed a romantic relationship with a woman from Hungary and he had travelled to Europe on three occasions to see her. Ms. Boissoneau also indicated that her brother was curious about terrorism but that she didn’t want him to go because she feared he would be killed.
[16] The Crown’s theory was that a threat was made to a class of individuals, citizens of the United States and Canada, rather than to a specific individual. The Crown did not allege that the appellant was an actual terrorist or that he took steps beyond the content of the tweet. However, the Crown submitted that his actions could not be divorced from the context of terrorism globally and in Canada. The plea was taken a few months after the shooting occurred on Parliament Hill. The Crown argued that general deterrence and denunciation should be the primary sentencing objectives for terrorism-related offences.
[17] The defence conceded that Mr. Boissoneau intended the words to be taken seriously. However, the defence submitted that the nature of the offence and the offender did not warrant the length of sentence that the Crown was advocating.
[18] The appellant’s criminal record was admitted. It began in 1999 and continued until 2011. His Youth Court record contains four convictions for failing to comply with a disposition; one conviction for breach of undertaking; three convictions for theft; three convictions for break and enter; three convictions for mischief; and one conviction each for being unlawfully at large, assault, and possession of stolen property.
[19] His adult record consists of the following convictions: break and enter; three counts of theft; three counts of breach of probation; four counts of mischief; one count of threatening; three counts of breach of recognizance; two counts of breach of undertaking; one count of failing to attend court; one count of failing to attend for identification and one assault conviction. Thus, Mr. Boissoneau’s criminal history featured property and nuisance-related offences, supplemented by compliance breaches. As his defence counsel on the plea submitted, the sentences are at the lower end of the spectrum. His previous conviction for threatening attracted a sentence of thirty days.
[20] A pre-sentence report was filed at the sentencing hearing. At the time of the report, Mr. Boissoneau was a First Nations man, aged thirty years. He was raised by his father who had been exposed to residential school. Mr. Boissoneau’s relationship with his father was positive. The same cannot be said of Mr. Boissoneau’s relationship with his mother. She is an alcoholic; his relationship with her is strained.
[21] As a toddler, the appellant he sustained multiple skull fractures when he fell downstairs. Later he was diagnosed as suffering from Fetal Alcohol Spectrum Disorder. Undoubtedly the FASD has led him to make bad decisions that bring him into conflict with the law.
[22] The appellant’s difficulties with the law at age twelve led to his apprehension by the child welfare authorities as his father found his behaviour unmanageable. He was in care for about two years.
[23] His legal difficulties coincided with his experimentation with marijuana and alcohol. During his teen years, he drank heavily. By twenty-three, he graduated to using opiates. His drug habit was funded by criminal behaviour. He enrolled in the methadone program for a few years at the age of twenty-five but withdrew in order to travel with his girlfriend. He advises that he quit using drugs in 2014, but admits that he continues to use alcohol. His family identifies his alcohol use as problematic. He has not had any residential treatment.
[24] Mr. Boissoneau also had difficulty in school. He was assessed as functioning in the low average range. Because of his history of incarceration, he did not attend high school and has no work history. He is supported by public disability benefits. The Crown described him as impulsive as a result of the brain injury, lack of formal education and FASD.
[25] The pre-sentence report (p. 8) observed that the appellant:
…did not appear to minimise his behaviour though was not always able to fully to fully explain his actions. He gives the impression of being easily led and susceptible to substance abuse.
[26] Mr. McCartney, his defence counsel on the sentencing submitted that there was no evidence that the European travel he undertook was related to terrorism pursuits. As well, he indicated that his relationship with the woman from Hungary had ended. He characterized Mr. Boissoneau as unsophisticated in his understanding of Islamic extremism. The appellant’s father told the police that his son often says things to “seem macho.”
[27] Prior to being sentenced, the appellant apologized.
[28] The Crown submitted that denunciation and deterrence should be emphasized. It sought a global sentence of 15 – 16 months for all three charges plus two years’ probation and ancillary orders. The defence submitted that time served of four months (the equivalent of six months with pre-sentence credits) plus one day would be a fit sentence. This defence submission was made on March 19, 2015; in fact, sentence was reserved and not imposed until April 29, 2015, meaning that the appellant’s time in pretrial custody then totalled 166 days. In sentencing the appellant, the judge recognized the additional time served at credited him with the equivalent of 250 days served.
Parameters for Sentence Appeals
[29] Sentencing decisions are entitled to significant deference unless the sentencing judge has made an error in principle, at which point, the deference ends. The Ontario Court of Appeal described such errors in R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 112 C.C.C. (3d) 97, at para. 20:
…an appellate court may interfere with a trial judge’s sentencing discretion in only two kinds of cases. First, an appellate court may interfere if the sentencing judge commits an “error in principle”. Error in principle is a familiar basis for reviewing the exercise of judicial discretion. It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law. If the sentencing judge commits an error in principle, the sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit. [Citations omitted].
[30] The second type of case in which an appellate court may interfere is if the sentence is outside an “acceptable range”: Rezaie, para. 21. The notion of an “acceptable range” for sentences encompasses sentences that are too severe or not severe enough.
Did the Sentencing Judge Err in Principle?
[31] There is a dearth of sentencing cases dealing with individuals who commit offences of a “terrorism-like” nature. In effect, these are nuisance offences that take up the time and attention of the authorities. They arise out of bad judgment but the offenders are at a low level in posing a risk to the public.
[32] By way of contrast to Mr. Boissoneau’s misconduct, the appellant cited R. v. Lapoleon, [2008] B.C.J. No. 484 (British Columbia Provincial Court). Unfortunately, this case was not presented to the sentencing judge for its persuasive value.
[33] Mr. Lapoleon was convicted after trial of engaging in a hoax regarding terrorist activity contrary to s. 83.231(1) of the Criminal Code; and public mischief by causing police to investigate to determine whether the hoax constituted a real threat, contrary to s. 140(1)(a) of the Code.
[34] The facts found at trial in 2007 are that Mr. Lapoleon sent a fax to the national security unit of the RCMP alleging that an Islamic terrorist cell operating in Vancouver was plotting to blow up the Danish and American consulates. The communication set out the names and addresses of three alleged terrorists involved. It also referred to explosives being kept at a certain location.
[35] While the police did not assess the risk as high, nevertheless, they kept the three individuals under surveillance. The two consulates were advised of the threat and police protection was enhanced at both locations. As well, a canine search for explosives was conducted at the location identified in the communication.
[36] Simultaneously, a grand jury subpoena was obtained in New York City to seize computer records from the server believed to have directed the fax transmission through various computer re-routes. RCMP and Vancouver police were called in on the case. Investigation eventually linked Mr. Lapoleon’s fax to various computers used at internet cafes. He was placed under surveillance, a plan which was complicated by the fact that Mr. Lapoleon had no fixed address. Ultimately, he was arrested and charged. The three persons he identified in his fax were entirely blameless; he simply didn’t like them.
[37] Mr. Lapoleon was sentenced on the charge or perpetrating a terrorist hoax to six months in custody plus time served of four and a half months (credited at nine months). He was sentenced to four months consecutive on the mischief count. As well, a two year probation order was imposed.
[38] The court recognized that Mr. Lapoleon was an aboriginal man who was homeless. He had a background of physical and sexual abuse, alcoholism and petty crime. In sentencing him, the court took into account the significant investigative resources required to deal with the matter, diverting police from legitimate terrorist threats. The court considered that Mr. Lapoleon undertook significant planning to perpetuate the hoax and his actions took place in a serious socio-political context. In summary, the sentence emphasized deterrence.
[39] The Crown submits that Lapoleon is distinguishable in that the offender was convicted of a different offence than threatening; in the alternative, the Crown argues that the sentence imposed in this case was within the range established in Lapoleon.
[40] In sentencing Mr. Boissoneau, the sentencing judge properly considered the sentencing principles set out in the Criminal Code, including Mr. Boissoneau’s personal circumstances and Gladue factors. In his reasons, he pointed to the following four circumstances requiring a denunciatory sentence:
(1) the period of time during which the offence was committed;
(2) that while the appellant “may well not have committed any specific terrorism related offence,” the concept of terrorism informed the appellant’s utterances;
(3) by virtue of his plea and his counsel’s submissions, the appellant intended his comments to be taken seriously; and
(4) the appellant’s utterances were made at a time of intense public sensitivity and insecurity about the threat of terrorism, making his words more ominous.
[41] The appellant contends that the sentencing judge erred when he referred to a period of time over which the offence was committed as a factor calling for denunciation. The Crown suggests this was not an error; the comment refers to the narrative read into the record that provides the context for the utterance that gave rise to the charge. It also corresponds with the wording on the information.
[42] I agree that the sentencing judge was entitled to consider the context in which the offending comment was made. Indeed, it was necessary in order to understand the degree of blameworthiness attached to the utterance. However, the period of time over which the offence took place is not an aggravating factor. Rather, considering that the offence took place in communications made between August 28 and November 10, 2014 is a mischaracterization of the admission made on the guilty plea that the last Twitter utterance gave rise to the offence.
[43] The appellant concedes that the second factor, the backdrop of terrorism underpinning the threat was aggravating. I agree with this submission. The sentencing judge was entitled to treat it as an aggravating fact.
[44] Counsel for the parties agree that the third factor listed by the judge, that the appellant intended his comments to be taken seriously, is not an aggravating factor, but rather a necessary element of the offence of threatening. It forms part of the mens rea of the offence and is therefore a neutral factor. See: R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931 (S.C.C.), para. 23.
[45] Next, the appellant submits that the sentencing judge erred in considering that the utterance was made at a time of intense public sensitivity about terrorism in order to impute the appellant’s level of intent when there was no evidence that Mr. Boissoneau was aware of the terrorism-motivated shooting on Parliament Hill.
[46] The Crown argues that the sentencing judge is entitled to take judicial notice of local conditions when sentencing an offender, citing R. v. Lacasse, 2015 SCC 64, para. 90. In Lacasse, the Supreme Court recognized that denunciation of conduct endemic to a local area was a consideration for sentencing. The court stated:
Although the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, there may be circumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing. It goes without saying, however, that the consideration of this factor must not lead to a sentence that is demonstrably unfit.
[47] In my view, in naming public sensitivity to terrorism as a ground for a denunciatory sentence, there are three problems. The first is that there was no evidence that Mr. Boissoneau was aware of the shooting on Parliament Hill or that his utterance was linked to these events. The chain of his communications on Twitter preceded the shooting by several months. His counsel at the sentencing, characterized Mr. Boissoneau’s conduct as “shooting his mouth off”. The pre-sentence report described Mr. Boissoneau as an impulsive individual who had suffered from a brain injury and FASD, such that he functioned in the low-average range. The report-writer commented that the appellant “was not always able to fully explain his actions” and left her “with the impression he does not fully appreciate the gravity of his actions in respect to the offences before the Court.”
[48] The second problem is that there is no suggestion that threats of terrorism are prevalent in the Thunder Bay area, such that the sentencing judge ought to have emphasized denunciation. In other words, there is no “local condition” inviting judicial notice in sentencing.
[49] The third problem arises from the judge’s conclusion that Mr. Boissoneau’s threat was more ominous in light of a distressed society. In fact, the evidence indicates that the appellant had a limited following on Twitter. His communication came only to the attention of a couple of terrorists anxious to recruit him and the police unit tasked with monitoring their conduct. Thus, unlike in Lapoleon, there was no public distress occasioned by the appellant’s thoughtless Twitter post.
[50] The Crown contends that the sentence for threatening was proportionate to the gravity of the offence and the culpability of the offender. Respectfully, I do not agree. In my view, the sentence unduly emphasized denunciation and deterrence given the nature of the offence and the circumstances of the offender. In short, the sentence imposed was outside the acceptable range. In his submissions at the sentencing hearing, defence counsel commented,
…my view is that there’s never been a police state in history that hasn’t been started with the law getting pushed around by public fear and news headlines, and we’re in that situation now in respect to Islamic extremism.
[51] His defence counsel also queried whether, had the offence taken place two years earlier, when there was less alarm about radical extremism, would the sentence be more serious than the four months he actually spent in prison? It is telling that Mr. Boissoneau’s previous sentence for threatening was thirty days.
[52] The case at bar is obviously distinguishable from Lapoleon, where international law enforcement agents were involved, an extensive investigation was required, innocent people were accused, and two consulates were put on alert. Here, the police investigation was limited. Mr. Boissoneau did not conceal his identity. His threat was naïve and unsophisticated, in keeping with his brain injury, his cognitive abilities and the Gladue factors. Mr. Boissoneau took no steps to plan attacks in Canada and did not involve others in the threat. His threat did not alarm the public. His real motivation was to obtain a plane ticket to visit his girlfriend in Europe. In these circumstances, his culpability was limited.
[53] In my view, the appellant is correct that the sentence should not have exceeded the time served, which was four months in jail, having regard for the two other offences for which he was also sentenced. Mr. Boissoneau’s conduct was in the nature of a nuisance to law enforcement.
[54] The appeal is therefore allowed. The sentence of Mr. Justice Valente for the offence of uttering threats is varied to four months in custody, which, on an enhanced basis of 1.5:1 constitutes six months in custody.
“Original signed by”
The Hon. Madam Justice H.M. Pierce
Released: February 1, 2016
CITATION: Her Majesty the Queen v. Boissoneau, 2016 ONSC 820
COURT FILE NO.: CR-15-0031
DATE: 2016-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
DWAYNE WILLIAM BOISSONEAU Appellant
REASONS ON APPEAL Pierce J.
Released: February 1, 2016 /cs