Court File and Parties

COURT FILE NO.: CR-21-50000184 DATE: 20220425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SHAUN BLACKMAN

Counsel: S. Scratch, for the Crown S. Taraniuk, for Mr. Blackman

HEARD: March 28, 2022

R. MAXWELL J.

Reasons for Judgment

[1] Mr. Blackman is charged with one count of threatening death and one count of intimidating a justice participant. His trial is scheduled to begin on April 25, 2022.

[2] The applicant is alleged to have posted threatening comments on his Instagram social media account directed toward an undercover police officer who was involved in investigating another criminal case in which the applicant had been charged.

[3] The applicant brings an application pursuant to s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, alleging that the police failed to seize evidence, impairing his ability to make full answer and defence. Specifically, the applicant submits that the investigating officer failed to (1) seize the original cell phone belonging to a confidential source, where the posts were originally viewed; (2) photograph the Instagram posts; (3) obtain a copy of the digital file of the screen shots taken by the confidential source; (4) confirm the existence of the posts by logging onto the public Instagram account; (5) disclose the records of Detective Constable Sgroi’s conversation with the confidential source contemporaneous with the screen shots being shared with him.

[4] The applicant seeks an order excluding, evidence, specifically screenshots of social media posts said to have been posted by the applicant, derived from a cellular phone belonging to a confidential informant, pursuant s. 24(2) of the Charter. He reserves the right to bring an application pursuant to s. 24(1) of the Charter following the trial.

Factual Background

[5] Detective Constable Sgroi testified on the voir dire. In March of 2019, he was a police officer with Toronto Police Major Crimes Unit. His responsibilities included being a handler of confidential informants.

[6] He testified that on March 18, 2019, he received information from a confidential source that they had information on a phone they wished to share with him. Detective Constable Sgroi advised the confidential source to take screenshots (a picture of what is displayed on a screen) of the information.

[7] Detective Constable Sgroi and the confidential source then met face to face. Detective Constable Sgroi testified that the confidential source showed him three screenshots from an Instagram social media account. The confidential source advised that the screenshots were taken from an Instagram social media account belonging to the user account SH.aun559. There is no dispute on this application that the applicant is the holder of an Instagram account with the username SH.aun559.

[8] Detective Constable Sgroi testified that he first watched the confidential source access the Instagram account on their cellular phone and observed posts and photos on the account as the confidential scroll scrolled through posts on the account belonging to SH.aun559. He testified that he then viewed the screenshots of three posts which the confidential source took using their phone. Detective Constable Sgroi testified that he then scrolled through the Instagram posts himself, using the confidential source’s phone. Detective Constable Sgroi testified that the screenshots had the same content as posts he viewed directly on the Instagram account from the confidential source’s phone.

[9] He testified that he only skimmed the material on the Instagram feed and that he did not read the full content of the messages (either on the Instagram feed or in looking at the screenshots on the confidential source’s phone), but he maintained that he is confident that the three screenshots on the confidential source’s phone were identical to content he viewed directly on the Instagram account.

[10] Using his own cell phone, Detective Constable Sgroi then took photos of the screenshots on the confidential source’s phone. Detective Constable Sgroi did not access the Instagram account directly from his own cell phone.

[11] An affidavit sworn by Detective Constable Sgroi attaching copies of the screenshots was filed as an exhibit on the voir dire. The first two screenshots captured Instagram posts containing overtly threatening messages which appeared to be directed at an officer. The first message states, “IM COMEING FOR YOU OFFICER TK YOU NEED TO GO LOOK UP THE MUSIC BY FUTURE BLOOD ON THE MONEY THIS IS FOR YOU OFFICER TK”. The second post contains similarly threatening content, stating in part, “my shooters are LOOKING FOR YOU AND YOUR FRIENDS OFFICER TK WE ARE COMEING FOR YOU OFFICER TK”.

[12] The third screenshot captured a picture of the applicant, Mr. Blackman.

[13] Detective Constable Sgroi testified that he did not believe the messages had any significance and he did not take any immediate action. He believed, erroneously, that the threats related to someone in the islands, although it was unclear from his evidence what information he relied on for this belief.

[14] He testified that he was aware of an investigation entitled Project Patton and, in fact, acted as a confidential source handler within the investigation but had no direct investigatory role. He also testified that he was aware the applicant had been arrested in relation to the Project Patton investigation for firearm-related offences. However, he testified that he was unaware of any undercover officers working on Project Patton. Specifically, he testified that he was unaware, at the time of meeting the confidential source, that “TK” was an undercover officer involved in Project Patton and that “TK” had direct involvement in investigating the applicant as part of Project Patton.

[15] A couple of weeks after the meeting, Detective Constable Sgroi filed a report about the meeting with the confidential source and the three photographs of the screenshots in the source management system. He testified that it was only then that he learned that the threats in the messages related to an undercover officer involved in investigating the applicant as part of Project Patton.

[16] After the applicant was arrested on April 3, 2019, his cellular telephone was seized by the police. The Instagram application found on the phone and its content was analyzed. The particular posts that form the basis of the charges were not present within the contents of the phone or on applicant’s Instagram account.

Position of the Parties

[17] On behalf of the applicant, Mr. Taraniuk submits that Detective Constable Sgroi, in failing to seize evidence surrounding the circumstances of the threatening messages impaired the applicant’s right to make full answer and defence. He submits that Detective Constable Sgroi knew that he was meeting with the confidential source concerning a criminal matter involving a death threat and that it would have been apparent from the messages that that the threats were directed at an officer. In the circumstances, he argues it was incumbent on the officer to seize evidence which would have corroborated or undermined the credibility and reliability of the information provided by the confidential source.

[18] He submits that the failure of the officer to take the further investigative steps of (1) seizing the original cell phone belonging to the confidential source, where the posts were originally viewed; (2) photographing the Instagram posts directly from Instagram; (3) obtaining a copy of the digital file of the screen shots; (4) confirming the existence of the posts by logging onto the public Instagram account; and (5) disclosing the records of his conversation with the confidential source contemporaneous with the screen shots being shared with him impaired the defence’s ability to challenge the evidence of the threatening posts.

[19] He further submits that Detective Constable Sgroi’s actions, or failure to act, is the result of unacceptable negligence. He points out that, given the fact that the information originated from a confidential source whose credibility is in question and who may have received compensation for the information, it was incumbent on Detective Constable Sgroi to secure evidence that could have either corroborated or undermined the information he received from the confidential source.

[20] On behalf of the Crown, Mr. Scratch concedes that Detective Constable Sgroi did not preserve the original form of the Instagram posts, in that he did not download the post directly from Instagram or photograph the posts directly from the Instagram feed. He also accepts that it might have been preferrable had Detective Sgroi preserved the original form of the Instagram posts.

[21] However, he submits that no evidence was lost as a result of Detective Sgroi’s actions. All the relevant evidence was captured in the photographs of the posts which were obtained. The details of the posts and surrounding circumstances have been preserved and are available to the applicant at his trial. Detective Constable Sgroi will testify at the trial and can be cross-examined on his conversation with the confidential source and the circumstances surrounding how he obtained the evidence.

[22] He further submits that the defence has failed to establish that the digital files and the related metadata would have provided any relevant information, as no evidence was called on the voir dire as to what information the metadata would provide.

Analysis

[23] The parties are largely in agreement as to the analytical framework to follow where an applicant asserts that the police have failed to preserve evidence. The applicable principles are set out in R. v. La, [1997] 2 SCR 680. The obligation of the Crown to disclose all relevant information in its possession is protected by s. 7 of the Charter. As a result, the Crown’s duty to disclose gives rise to a duty to preserve relevant evidence: La, at paras. 16-23.

[24] In R. v. Bero, the Court of Appeal for Ontario similarly underscored the link between the duty to disclose and the duty to preserve evidence. Justice Doherty, at paras. 30-32, stated:

The proper approach where an accused claims that the failure to preserve material in the possession of the Crown results in a breach of a Charter right is found in R. v. La supra. That approach is conveniently summarized by Roscoe J.A. in R. v. F.C.B., 2000 NSCA 35:

(1) The crown has an obligation to disclose all relevant information in its possession. (2) The crown’s duty to disclose gives rise to a duty to preserve relevant evidence. (3) There is no absolute right to have originals of documents produced. If the crown no longer has original documents in its possession, it must explain their absence. (4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

[25] The Court went on to state that an accused’s right to disclosure of relevant information in the possession of the Crown is a component of the right to make full answer and defence which is a component of fundamental justice. Hence, a failure to preserve information which, if preserved would be disclosable to the defence under R. v. Stinchcombe, [1991] 3 SCR 326, will constitute a breach of the accused’s constitutional right to disclosure of the Crown’s case as protected by s. 7 of the Charter, unless the Crown can advance a satisfactory explanation for the failure to preserve the evidence.

[26] Turning to the potential “lost” evidence in this case, I begin by observing that alleged inadequacies in a police investigation, in and of themselves, do not amount to a violation of s. 7 of the Charter, as the Court of Appeal for Ontario held in R. v. Darwish, 2010 ONCA 124, 252 C.C.C.(3d) 1, at paras. 29-31 and 39 (Ont. C.A.). Justice Doherty, speaking for the court, stated:

An accused does not have a free-standing constitutional right to an adequate investigation of the charges against him or her: R. v. Barnes, 2009 ONCA 432, at para. 1. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in and of themselves constitute a denial of the right to make full answer and defence.

An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target. As Hill J. put it in R. v. West, at para. 75, the defence cannot, through a disguised-disclosure demand, "conscript the police to undertake investigatory work for the accused"; see, also, R. v. Schmidt, 2001 BCCA 3, [2001] B.C.J. No. 3, 151 C.C.C. (3d) 74 (C.A.), at para. 19. That is not to say that the police and the Crown should not give serious consideration to investigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry the ultimate responsibility for determining the course of the investigation. Criminal investigations involve the use of public resources and the exercise of intrusive powers in the public interest. Responsibility for the proper use of those resources and powers rests with those in the service of the prosecution and not with the defence.

Nor does the disclosure right, as broad as that right is, extend so far as to require the police to investigate potential defences. The Crown's disclosure obligation was recently described in R. v. McNeil, [2009] 1 SCR 66. The court, at para. 22, reiterated the Crown's obligation, subject to very limited exceptions, to make timely disclosure to an accused of all relevant material "in the possession or control of the Crown". The Crown's disclosure obligation will also require the Crown, in response to defence requests, to take reasonable steps to inquire about and obtain relevant information in the possession of some third parties.

… No doubt, the Crown has obligations to an accused and to the administration of justice that go beyond those normally imposed on opposing counsel in litigation. However, the criminal justice system remains essentially an accusatorial and adversarial one. The prosecution, which includes the Crown and the police, is charged with the responsibility of investigating and prosecuting crime in the public interest. To do so, the prosecution must investigate allegations, lay charges and prove those charges in a criminal proceeding. To properly perform these functions, the prosecution must decide on the nature and scope of an investigation. The accused is entitled to the product of that investigation but is not entitled to dictate the nature or scope of that investigation.

[27] Applying these principles, in my view, much of the defence attack on the police investigation into the threatening posts does not engage the Crown’s duty to preserve and disclosure relevant evidence. Rather, the attacks on the police investigation concern potential evidence that was never sought or obtained by the police. As stated by Code J. in R. v. Osman, 2020 ONSC 1830, at para. 20, the attack on the police investigation “…. depends on the common law precepts concerning the adequacy of the investigation and the impact of any investigative failings on the Crown’s burden of proof beyond a reasonable doubt.”

[28] I begin with the focal point of the defence submissions which relate to the failure of the police to seize the source’s phone and obtain the digital files containing metadata for the screenshots. I would note at the outset that there is no evidentiary basis for the assertion that the metadata would confirm or refute the Crown’s evidence or establish the origins of the files captured in the screenshots taken by the confidential source. In the absence of evidence, it is speculative in my view, to say that metadata of the screenshots taken by the confidential source would have revealed information relevant to the issues in this case.

[29] That aside, in my view, the confidential source’s cell phone and any digital files revealing metadata of the screenshots on the phone was never in the Crown or police possession and was therefore never subject to a duty to preserve and disclose relevant evidence. At best, the digital files are potential evidence that was not sought or obtained by the police.

[30] Mr. Taraniuk effectively submits that the police had an obligation to take the investigative step of seizing and forensically analyzing the phone for metadata because the information originated from a confidential source whose credibility and motivations cannot be challenged at trial because this person will not be called as a witness. I do not agree. There is no special or different duty to investigate information arising from the fact that the posts were obtained by looking at a confidential source’s cell phone. The photos and the Instagram posts, while they were viewed on the confidential source’s phone, were contained on a publicly available Instagram account. Moreover, as Mr. Scratch pointed out in his submissions, the Crown is not relying on the credibility of the confidential source to establish its case at trial. The confidential source merely provided the conduit for the information.

[31] However, even assuming that the cell phone and therefore any possible digital files which might revealing metadata was in the possession of the police, I am not satisfied that the police failure to seize the phone and obtain the metadata gives rise to a s. 7 Charter violation of the duty to preserve and disclose evidence. As the court held in La, at paras. 20-21 and in R. v. Hersi, 2019 ONCA 94, at paras. 29-34, only if the loss of evidence is due to “unacceptable negligence” will the failure to disclose amount to a breach of s. 7 of the Charter. In this regard, the relevance of the evidence was perceived to have at the time, and whether the police acted reasonably in attempting to preserve items, are important considerations. The more relevant the evidence, the more care that should be taken to preserve it.

[32] Detective Constable Sgroi did not believe the posts to be relevant to any ongoing investigation, nor did he perceive the threats to relate to anyone known to him or identifiable. He accepted, in hindsight and with the benefit of now knowing that the threats were directed at a police officer working in an undercover capacity in an investigation involving the applicant, that he should have taken action more expeditiously to investigate the threatening comments further.

[33] However, given his belief at the time, I accept that his approach of filing a report in a database of confidential source information was adequate. The relevance or significance of the posts was not apparent to him and would not have, in the circumstances, necessarily prompted him to take further investigative steps like seizing the phone to have it analyzed. In the circumstances, the measures taken to preserve the evidence - photographing the screenshots after viewing the posts on the Instagram feed itself, were reasonable and do not amount to unacceptable negligence.

[34] Finally, I do not accept the defence submission that this evidence is of such significance that the lack of access to it would deprive the applicant of a fair trial. At best, the metadata requires a speculative inference that it would have provided assistance to the defence. With respect, I cannot accept the defence submission, at para. 43 of his factum, that “[t]he evidence meets the air of reality test in that it is clear that the missing evidence would have materially assisted the Applicant. It would have established whether the threat was actually present on an Instagram feed alleged to belong to him.” There is insufficient evidence to support this assertion.

[35] Turning to the next series of attacks on the investigation, which I will group together as the failure of Detective Constable Sgroi to photograph or download the posts directly from Instagram and the failure to confirm the existence of the posts by logging into Instagram.

[36] The evidence of Detective Constable Sgroi is that he watched the confidential source access the Instagram account on his phone and then watched as the source scrolled through pictures and finally, that he then scrolled through posts and pictures on Instagram using the source’s phone. There is some dispute as to whether he looked at the screenshots before looking at the posts on Instagram. There is also an issue as to how closely Detective Constable Sgroi compared the content of the screenshots with the content of the Instagram feed. However, I accept Detective Constable Sgroi’s evidence that he observed the Instagram account with his own eyes, from the confidential source’s phone. As such, I do not accept that there was a failure to confirm that the posts were present on the Instagram account. The weight to be given to Detective Constable Sgroi’s evidence that the messages were identical will be a question at trial. But there is evidence that he observed the Instagram account himself and saw the posts and picture.

[37] As to Detective Constable Sgroi’s decision to photograph the screenshots rather than download or photograph the posts directly from the Instagram account, I agree with the Crown that, in light of Detective Constable Sgroi’s evidence that he viewed the Instagram posts himself, this is a complaint about the form of the evidence and not the substance. The content of the evidence which the Crown seeks to rely on at trial was preserved. In my view, the applicant has the information required to make full answer and defence.

[38] I agree with the comments in R. v. Hamdan, 2017 BCSC 676 from the British Columbia Supreme Court, at para 109: “The Crown’s disclosure obligation can be satisfied by disclosing relevant information of the contents even if the original information has not been preserved.”

[39] Moreover, even if something was lost in Detective Constable Sgroi’s decision not to download or photograph the messages directly from Instagram, Detective Constable Sgroi explained for why he did not download the messages directly from Instagram. He was concerned that the applicant might be able to trace activities on his own Instagram account, including who was accessing the account. He was concerned, given that the confidential source was accessing the Instagram account, that if he also accessed the account, it might run the risk of exposing the identity of the confidential source. Whether Detective Constable Sgroi was being overly cautious, or “paranoid” to use his words from his testimony, in the circumstances, his conduct was not unacceptably negligent.

[40] In this case, the Crown has disclosed all the relevant information that forms the basis of the charges. Detective Constable Sgroi can be cross-examined on the circumstances surrounding the source showing him the posts and the screenshots. He can be cross-examined on his discussions with the confidential source and his lack of notes. The absence of evidence will, no doubt, form a pillar of the defence argument that the Crown cannot prove the origins of the posts beyond a reasonable doubt. To the extent that the trial judge is satisfied that there are any inadequacies in the investigation, the trial judge may deem it necessary to instruct the jury about the lack of certain confirming or corrobative evidence as it relates to the Crown burden to prove the charges beyond a reasonable doubt.

[41] However, in all the circumstances, I find that there is no violation of s. 7 of the Charter. The application is dismissed.

Justice R. Maxwell Released: April 25, 2022