COURT FILE NO.: CR-18-4256

DATE: 20210525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Daniel Tiessen

Nicole Lamphier, for the Crown

Helen Karpouzos, for the Defendant

HEARD: March 15, 2021

REASONS FOR SENTENCE

Hebner J.

[1] On November 4, 2020, Mr. Tiessen was convicted of the following offences:

1. Conspiracy to commit the indictable offence of kidnapping contrary to section 465(1)(c) of the Criminal Code of Canada, R.S.C. 1985, c. C-46;

2. Conspiracy to commit the indictable offence of assault causing bodily harm contrary to section 465(1)(c) of the Criminal Code;

3. Uttering threats to cause bodily harm to Devin Alderton, contrary to section 264.1 (1) (a) of the Criminal Code.

[2] Mr. Tiessen (sometimes referred to as “the offender”) was also convicted of conspiracy to commit the indictable offence of forcible confinement. That charge was stayed based on the principle of double jeopardy.

[3] The sentencing hearing was held on March 15, 2021. These are my reasons for sentence. In reaching my conclusions, I have had the benefit of a pre-sentence report, personal references submitted by Mr. Tiessen, and the submissions of counsel for the Crown and the offender.

Overview of the Offence

[4] For a detailed review of the evidence, regard should be had to my reasons for judgment. I provide a brief description of the offences here for sentencing purposes.

[5] In 2015 – 2016, the Royal Canadian Mounted Police (“RCMP”) in Essex County undertook an extensive investigation into allegations of conspiracy to import cocaine from Mexico and Colombia into Canada. The project was called Project OMEND. The targets of the investigation were the accused and Jacob Thiessen. The investigation lasted 19 months. Many judicial authorizations for intercepted communications were applied for and granted.

[6] Project OMEND terminated on July 28, 2016.

[7] During the course of their listening to the intercepted communications, the monitors became aware that there was disharmony among some of the alleged co-conspirators. Specifically, the communications indicated that the accused, Jacob Thiessen and Jay Shanks believed that Devin Alderton had stolen some of their cocaine, was selling it and keeping the proceeds for himself.

[8] The evidence presented by the Crown was in the form of audio intercepts taken from Mr. Tiessen’s cell phone, Mr. Tiessen’s vehicle, Jacob Thiessen’s vehicle, and a warehouse located in Tilbury East Township. Officers installed a listening device in the offender’s motor vehicle on April 22, 2016. On the same date, officers installed a listening device in the warehouse. On April 25, 2016, officers installed a listening device in the motor vehicle owned by Jacob Thiessen. Additional intercepts were obtained from the offender’s cell phone.

[9] A factual matrix emerged from all of the evidence called at trial.

[10] On April 25, 2016, the offender told Jacob Thiessen about a person he knows, Jay Shanks, who is connected with the Hells Angels. This person had been looking for Devin Alderton two years prior. On the same day, the offender instructed his stepson, Travis Ives, to place a GPS tracking device on Mr. Alderton’s motor vehicle.

[11] On April 28, 2016, the offender made contact with Mr. Shanks. He told Mr. Shanks that he was tracking Mr. Alderton’s movements with the GPS device.

[12] By May 2, 2016, the offender and his co-conspirator, Jacob Thiessen, began formulating a plan. They wanted to hire someone to pick up Mr. Alderton, bind him with duct tape and deliver him to them. By May 3, 2016, the offender began to make inquiries of third persons to try to find someone to perform this task.

[13] By May 23, 2016, the offender and Jacob Thiessen had decided on the amount they wanted to collect from Mr. Alderton. They wanted to collect $185,000 plus the fees of the third party they intended to hire to abduct Mr. Alderton. The offender told Jacob Thiessen that he had someone to do the job.

[14] By May 25, 2016, the offender and Jacob Thiessen were in the final stages of formulating a plan. The offender had met with two different people prepared to abduct Mr. Alderton. He planned to give Mr. Alderton’s address, motor vehicle and employment information to one of them so that he could complete the task.

[15] The offender and Jacob Thiessen discussed different means of extracting the funds from Mr. Alderton after he had been delivered to them. In that context, the offender related a story to Jacob Thiessen about a man who was secured in an Adirondack chair by screwing his hands to the armrests. The man was then threatened with a drill to his forehead. The offender called it a “Dewalt lobotomy” and he suggested using this option on Mr. Alderton. He also suggested injecting syringes of bleach into Mr. Alderton’s temples.

[16] By this point, police decided that they had to intervene. The next day, May 26, 2016, an OPP officer and an RCMP officer, both in plain clothes with police vests and defensive weapons, pulled the offender over and warned him. They told him that “word was out that (the offender) wanted to collect a debt and that if anything happens, the first place (the police) would come looking was (to the offender).” On May 27, 2016, the offender and Jacob Thiessen discussed the warning. They concluded that Mr. Alderton was “a rat”.

[17] Based on all of the evidence, I concluded that the offender and Jacob Thiessen had formed an agreement together. They believed that Mr. Alderton owed them money for drug sales. They came to the figure of $185,000. They agreed that they needed to extract this money from Mr. Alderton by force. They wanted to teach him a lesson.

[18] In furtherance of that agreement, the offender arranged for a GPS tracking device to be affixed to Mr. Alderton’s vehicle. The offender and Jacob Thiessen agreed to pay an unknown third party to abduct Mr. Alderton. The unknown third party was to subdue Mr. Alderton with duct tape and deliver him to the offender and Jacob Thiessen. They discussed different ways that they would extract monies from Mr. Alderton that can only be described as torture.

Circumstances of the Offender

[19] The information respecting the offender’s circumstances was provided by the author of the pre-sentence report.

[20] Mr. Tiessen is 53 years of age. He has two siblings. His parents separated when he was a young teenager and he remained in the primary care of his mother. Mr. Tiessen’s father died approximately 18 years ago. His mother died in April 2020 due to complications from COVID-19.

[21] Mr. Tiessen was married in 2004 and separated in 2011. He has two children, a daughter born in 2003 and a son born in 2005. He described a positive relationship with his two children but acknowledged that his access was supervised pursuant to a court order.

[22] He became involved in a four-year common-law relationship. The Windsor Essex Children’s Aid Society (“CAS”) became involved with Mr. Tiessen in 2014 due to concerns regarding domestic violence between he and his partner. The CAS remained involved sporadically until 2018. Specifically, in 2016, the CAS became involved after receiving information regarding the offender’s criminal involvement and drug paraphernalia in the home.

[23] For the last three years the offender has been single.

[24] Mr. Tiessen attended both elementary and secondary school in Leamington. The highest level of education he received was Grade 11. He left school to secure employment. He said he tried to complete his high school equivalency in 2016. He registered for independent correspondence through a local adult education centre in Leamington and began working towards a credit when he was arrested for these charges. Thereafter, completion of his education was no longer a priority.

[25] Mr. Tiessen began working at the age of 18 for his father as a truck driver. He worked in a factory owned by a family friend. He described his employment for a few years as a “jack of all trades”.

[26] In 1994, the offender started his own business called Erie Environmental Services. He operated this business for eight years, during which time he incurred a number of fines for violations of the Environmental Protection Act. He sold this business and then opened a different business called North Shore Express from 2004 until 2010. He tried his hand at another business that was unsuccessful. In the last ten years, the offender has worked at farming and truck deliveries. He was employed as a truck driver by a local general contracting company for three years ending in 2019. Thereafter, he collected unemployment benefits and most recently, the Canada Emergency Response Benefit. He is uncertain about future employment goals.

[27] The offender denied any addiction issues with alcohol. He said he has not consumed any alcohol since 2017, after being diagnosed with diabetes. He experimented with drugs in high school but has not used anything other than marijuana since then.

[28] The probation officer who completed the pre-sentence report noted that the offender presented as pleasant and willing to answer questions posed. He adamantly denied all personal guilt, describing his feelings about the offences as being “completely ridiculous”. He denied a history of offending behaviour, citing his criminal record as “non-criminal” in nature.

[29] The probation officer describes Mr. Tiessen as a “recidivist with a pattern of non-compliance”. He said Mr. Tiessen “does not accept responsibility for the matters before the court and does not view his previous criminal record as criminal behaviour”. The officer concluded with, “The subject’s unwillingness to accept responsibility for past and current criminality, coupled with his unwillingness to address any target areas while previously under probation make recommending community supervision difficult.”

Criminal Record

[30] Mr. Tiessen’s criminal record starts in May 2013, when he was convicted of failing to comply with a provisional certificate of approval under the Environmental Protection Act. He was given 30 days and put on probation for two years. He was convicted of a similar offence in July 2014. He received two years probation. In 2013, he was convicted twice for failure to comply with court orders. For one, he received a fine and for the other, a conditional discharge.

[31] Subsequent to the offences that are the subject matter of this proceeding, Mr. Tiessen was convicted of two more instances of failure to comply. I do not consider these two convictions given their timing.

Positions of the Parties

[32] The Crown takes the position that a fit and just sentence is one of five years incarceration.

[33] The defence takes the position that a fit and just sentence is one of 18 to 24 months incarceration.

[34] Both the Crown and the defence conceded that Mr. Tiessen has spent 57 days in custody awaiting trial and sentencing and therefore is entitled to a credit of 85.5 days.

Legal Principles

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

[36] The Criminal Code, section 718.2 (b) provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.

[37] Section 465 provides as follows:

465(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and

[38] The maximum punishment for committing the indictable offence of kidnapping, pursuant to s. 279(1.1)(b), is imprisonment for life. The maximum punishment for committing the indictable offence of assault causing bodily harm is imprisonment for ten years (s. 267(b)). The maximum punishment for threatening to cause bodily harm is five years (s. 264.1(2)(a)).

Analysis

[39] All in all, the pre-sentence report was relatively positive, with the exception of the offender’s refusal to take responsibility for his actions, both historically and the actions that are the subject of these offences. Mr. Tiessen has a limited criminal record with no related or violent offences.

[40] There is a dearth of authorities to assist in sentencing an offender for the offence of conspiracy when the plans had not been carried out. The Crown has, however, provided several cases for consideration.

[41] In R. v. Powell, [2017] O.J. No 6517, the accused was found guilty of three offences, namely: kidnapping with intent to hold for ransom, unlawful confinement and conspiracy to commit kidnapping for ransom. The victim was violently abducted from a parking lot and kept confined against his will. He was tortured by one of the other offenders until he was finally rescued by police a week later. The accused was not involved in the violence on the victim but was an integral member of the conspiracy and was involved as a party to the kidnapping. Moreover, he was personally involved in the ongoing unlawful confinement of the victim.

[42] In Powell, the accused was sentenced to 26.5 months on two of the counts, to be served concurrently, in addition to the four years and 5.5 months he already served. I do not find this case particularly helpful. There is a significant difference from the case at hand given that, in Powell, the kidnapping actually took place with many aggravating circumstances that are not present in the case at hand.

[43] In R. v. Campbell, 2004 BCSC 1268, the accused pled guilty to two counts. Firstly, he pleaded guilty to conspiring to kidnap Mr. Chan. Secondly, he pleaded guilty to providing assistance to his co-conspirators for the purpose of enabling them to escape. Approximately a month before the death of Mr. Chan, Mr. Campbell’s co-conspirators enlisted him to assist in a plan to kidnap Mr. Chan. Mr. Campbell understood that Mr. Chan would be threatened to pay up some $400,000. Mr. Chan had been portrayed as a local drug lord. Mr. Campbell assisted in the plan, which included buying a white van and some pre-paid cell phones under false names. Apparently, the plan went awry, and Mr. Chan was killed. Mr. Campbell was outside at the time the violence took place but assisted in removing the body. Mr. Campbell was sentenced to four years imprisonment on each count, served concurrently.

[44] I do not find the Campbell case particularly helpful in determining sentencing for Mr. Tiessen. Mr. Campbell took part in the conspiracy of a kidnapping that actually took place where the victim lost his life.

[45] In R. v. Blazevic, [2012] O.J. No 531, there were two accused, Mr. Blazevic and Mr. Baba. The younger accused, Mr. Baba, was found guilty of conspiring to commit unlawful confinement. Mr. Blazevic was found guilty of numerous offences, including conspiring to commit unlawful confinement.

[46] The two men were found by police with four others by a Jeep behind a strip mall. The men had a laptop that disclosed tracking of the victim, Mr. Jones. The police found duct tape, zip ties fashioned into homemade handcuffs, and black gloves in the Jeep. Mr. Baba had a significant role in the intended criminal venture. It was his laptop that was used to track the movements of Mr. Jones. The laptop contained aerial views of Mr. Jones’ home and surrounding area. Mr. Baba’s computer bag had some of the zip ties in it. Mr. Baba had a lengthy criminal record. On the conspiracy to forcibly confine Mr. Jones, Mr. Baba was sentenced to two years and three months.

[47] Mr. Blazevic had a major role in the planned criminal venture. He had a gun, knife, “pepper” spray, metal handcuffs and was the driver of the vehicle which had the homemade zip tie handcuffs, duct tape and disguises. Mr. Blazevic was sentenced to 2.5 years for the conspiracy to forcibly confine.

[48] In R. v. Moore, [2017] N.W.T.J. No. 96, the accused pleaded guilty to conspiracy to commit aggravated assault. The evidence was obtained by police in the course of intercepted telephone conversations during a drug investigation. The accused conspired with another to endanger the life of the victim. The accused and his co-conspirators believed that the victim was a snitch. Mr. Moore was sentenced to three years. At para. 21, Smallwood J. said:

The primary objective in sentencing for offences of violence, and this includes conspiracy to commit a violent offence, is deterrence and denunciation – to denounce the unlawful conduct that is contemplated by the accused and to deter the specific offender and other persons from committing these types of offences.

[49] It is of note that Mr. Moore was a 22-year-old Métis male with 20 prior convictions including violent offences. He had had a chaotic childhood and had been apprehended by social services as a child. Mr. Moore’s original background required the court to consider section 718.2(e) of the Criminal Code in sentencing him.

Aggravating Circumstances

[50] I consider the following to be aggravating circumstances:

1. Mr. Tiessen was engaged in significant planning and or pre-meditation.

2. Mr. Tiessen engaged the assistance of his stepson, a relatively young person, to install the GPS device on Mr. Alderton’s motor vehicle.

3. Mr. Tiessen was the ringleader. He was the driving force behind the plans. Without Mr. Tiessen, there would have been no conspiracy.

4. The conspiracy was based on greed.

5. The planning of the kidnapping had progressed to the point where Mr. Tiessen and his co-conspirator had someone lined up to kidnap Mr. Alderton. Mr. Tiessen and his co-conspirator agreed on the quantum of money they intended to extract from Mr. Alderton and they discussed various methods of violence to do so.

Mitigating Circumstances

[51] The primary mitigating circumstance was that the plan was never carried out. No one was confined or hurt.

[52] I also take into account Mr. Tiessen’s limited criminal record, with no crimes of violence.

Personal References

[53] Mr. Tiessen provided four personal references for the court’s consideration.

[54] Sarah Gates had previously dated Mr. Tiessen. She said he was a “supportive partner” and had been involved with her children’s sports, schooling and family vacations. There was no domestic violence in the relationship.

[55] Richard Holtz provided a short reference indicating that he has known Mr. Tiessen for approximately 20 years. He has never known him to be violent.

[56] Wendy Tiessen, Mr. Tiessen’s ex-wife, provided a short reference stating, “Mr. Daniel Tiessen did not physically abuse me during our 13-year relationship/marriage and has kept a good relationship with his children.”

[57] Vern Toews provided the most extensive reference letter. Mr. Toews is a retired vegetable greenhouse farmer. From his letter, it appears as though Mr. Toews was a productive and engaged member of society for many years. Mr. Tiessen’s paternal grandparents were neighbours and close friends of Mr. Toews’ parents. Mr. Toews said that Mr. Tiessen was always helpful as a volunteer in sourcing produce from his production line for charities. He said that Mr. Tiessen became an integral part of his program of feeding hungry people. He said that he called on Mr. Tiessen at times for assistance to unload produce from trucks and load it into coolers. He said that the charity today is very successful and sends millions of servings of vegetables to needy families in countries around the world.

[58] In 2019, Mr. Toews started a new charity to produce several new food production lines. He said that Mr. Tiessen had been his primary volunteer lift truck driver receiving these loads and then reloading them to be sent to food banks in Windsor and Essex County and Toronto, and to First Nations communities in northern Ontario and Saskatchewan. Mr. Tiessen has been helpful to Mr. Toews and his wife, both of whom are 84 years of age, during the pandemic lock down.

[59] Mr. Toews’ personal reference letter is truly inspiring. It is difficult to reconcile the man described by Mr. Toews with the man who committed the offences with which Mr. Tiessen has been convicted.

Disposition

[60] I find the Blazevic and Moore cases provided by the Crown to be the most helpful, as in those cases the kidnapping, confinement, and/or assault did not actually take place.

[61] I consider the heinous nature of the plans formulated by Mr. Tiessen and his co-conspirator. I consider the steps taken by Mr. Tiessen in furtherance of those plans, including involving his stepson to attach a GPS device to Mr. Alderton’s vehicle. I find that the kidnapping and assault of Mr. Alderton did not take place because the police stepped in and thwarted the plans – not because Mr. Tiessen had second thoughts.

[62] I consider Mr. Tiessen’s limited criminal record and the very positive personal reference of Mr. Toews. Given that reference, I conclude that Mr. Tiessen was a contributing and productive member of society, giving of his time and talents to charitable organizations and friends in need.

[63] It has been said that crafting a fit and just sentence is an art rather than a science. In this case, it is clear that a period of incarceration is necessary. Indeed, Ms. Karpouzos conceded as such in her submission that an 18 to 24 month sentence is appropriate. The question is the length of sentence. Based on counsels’ submissions, the range is between 18 months and five years. The aggravating circumstances, and the heinous nature of the plans made by Mr. Tiessen pull towards a lengthier sentence. On the other hand, the mitigating circumstances and positive personal references, particularly that of Mr. Toews, pull towards a shorter sentence. Deterrence and denunciation must be an overriding factor. However, I must also consider the principle of rehabilitation.

[64] Taking all of the circumstances into account, it is my view that a sentence of three years is a fit and just sentence. I see the offences as one continuous matter and concurrent sentences are appropriate, as follows:

• On Count 1, I sentence the offender to three years incarceration.

• On Count 2, I sentence the offender to three years, concurrent with Count 1.

• On Count 5, I sentence the offender to six months, concurrent with Count 1.

• Mr. Teissen is entitled to a credit of 85 days pre-sentence custody, leaving 1,010 days (or 33 and 2/3 months) left to serve.

Ancillary Orders

[65] In my view, the following ancillary sentencing orders are appropriate:

1. Pursuant to s. 109 of the Criminal Code, there shall be an order prohibiting the accused from the possession of weapons for ten years.

2. Pursuant to s. 487.051 of the Criminal Code, I make an order requiring that samples of bodily substances be taken from the accused for the purpose of forensic DNA analysis.

“original signed and released by Hebner J.”

Pamela L. Hebner

Justice

Released: May 25, 2021

COURT FILE NO.: CR-18-4256

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Daniel Tiessen

REASONS FOR SENTENCE

Hebner J.

Released: May 25, 2021