COURT FILE NO.: CR-21-5-184 DATE: 202205 09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – SHAUN BLACKMAN Defendant
Counsel: Ron Krueger, for the Crown Stacey Taraniuk, for the Defendant
HEARD: April 25, 26, 28, and 29, 2022
N.J. Spies J.
REASONS FOR JUDGMENT
Overview
[1] The defendant, Shaun Blackman, is charged with intimidation of a justice system participant, namely an undercover police officer known at the time as TK, contrary to s. 423.1(1)(b) of the Criminal Code and uttering a threat to cause death or bodily harm to TK, contrary to s. 264.1(1)(a) of the Criminal Code.
[2] In summary, in July 2018, Mr. Blackman was arrested and charged with various weapons trafficking offences. TK was one of the undercover officers who was part of the investigation that led to his arrest. It is alleged that on March 18, 2019, Mr. Blackman posted on his Instagram (“IG”) social media account a photo of TK along with comments stating that TK is a police officer and making threats to harm TK at a time when TK was about to give evidence in support of the charges at Mr. Blackman’s preliminary inquiry. During closing submissions, the Crown, Mr. Krueger also relied on other posts that did not contain threats of harm but did include a photo of TK and statements disclosing that he is an undercover officer.
[3] Mr. Blackman re-elected trial without a jury and pleaded not guilty to both charges.
[4] At the outset of the trial, I was advised that there would be a hearsay application by the Crown. It was agreed that I would hear all the Crown’s evidence on a blended voir dire and that the application would be argued at the end of the Crown’s case. I advised that I would provide my decision on that application before Mr. Blackman was put to his election as to whether to call evidence. As I will explain, after hearing the Crown’s evidence, it appeared to me that the Crown was not intending to ask me to rely on any hearsay evidence for its truth and that the application was unnecessary. Mr. Krueger confirmed this and as a result, apart from setting out his concerns about the hearsay dangers of some of the evidence, counsel for Mr. Blackman, Mr. Taraniuk, agreed. Mr. Blackman then elected not to call any evidence.
The Admissions
[5] The parties filed admissions pursuant to s. 655 of the Criminal Code that included the following information.
[6] "TK" was the name by which Mr. Blackman knew an undercover police officer with the Toronto Police Service (“TPS”) who posed as a barber at D'Empress Hair Design (“D’Empress”), 1882 Weston Rd., Toronto, from December 15, 2017 to May 2, 2018. Mr. Blackman worked as a barber at this hair salon in this time period. Across that four-and-one-half month period, the undercover police officer represented himself as TK to everyone in and around the location of the barbershop.
[7] "RJ" was the name by which Mr. Blackman knew another undercover police officer with the TPS, who posed as a friend of TK interested in obtaining a firearm. RJ had contact with Mr. Blackman in late March and early April 2018 at D'Empress.
[8] On July 9, 2018, police arrested Mr. Blackman for conspiracy to traffic firearms and two related firearms offences as a result of the investigation that involved TK and RJ in their undercover roles. Police had earlier arrested Richard Donison for conspiracy to traffic firearms as a result of the same investigation that led to the charges against Mr. Blackman.
[9] TK and RJ were investigating Mr. Blackman as part of a larger investigation called "Project Patton" which targeted and led to the arrest of a large number of individuals including Mr. Blackman and Mr. Donison. Although the undercover officers employed various investigative techniques over the four-and-one-half month period to obtain a gun from Mr. Blackman, no gun was ever produced.
[10] Prior to March 18, 2019, the majority of the defendants in Project Patton had received disclosure of the Crown's case and evidence. That disclosure revealed the fact that TK and RJ had been working undercover at D'Empress. That disclosure did not include a picture of TK.
[11] TK and RJ were witnesses scheduled to testify for the prosecution at a preliminary inquiry which ran intermittently from April 8, 2019 to September 18, 2019 at the Ontario Court of Justice at Old City Hall in Toronto. A number of defendants were involved in this preliminary inquiry including Mr. Blackman and Mr. Donison with respect to their firearms charges.
[12] TK testified against Mr. Blackman at both his preliminary inquiry and trial. He did so with both his real identity and his appearance hidden from the view of those not participating in the court proceedings. It is common practice for undercover officers to testify in this manner.
[13] Mr. Blackman's trial on his firearms charges occurred in January 2021. On February 8, 2021, Justice Ducharme of this Court acquitted Mr. Blackman of all charges. The Crown withdrew the related charges against Mr. Donison after Mr. Blackman's acquittal.
The Evidence and Preliminary Findings of Fact
[14] I heard from three TPS officers called by the Crown.
The Evidence of DC Stephen Sgroi
[15] On March 18, 2019, DC Sgroi received information from a confidential informant (“CI”), for whom he was the handler, that he had information about Mr. Blackman. He was told that the CI had observed images on Mr. Blackman’s IG account. DC Sgroi asked the CI to take screenshots of the posts to preserve them. DC Sgroi was not involved in the firearms investigation involving Mr. Blackman but he was aware of the investigation, and he knew of Mr. Blackman and that he had been arrested for firearms charges in connection with Project Patton.
[16] DC Sgroi met with the CI later that day and was shown what he believed to be three screenshots on the CI’s cell phone. He also believed these images were screenshots of posts on an IG account, sh.aun559, belonging to Mr. Blackman. This belief was informed by information he received from the CI and Mr. Taraniuk rightly objected to DC Sgroi’s evidence as to what he was told by the CI as hearsay. I advised counsel that this evidence was relevant only to narrative and to explain why DC Sgroi did what he did, subject to a successful application by the Crown to ask that I find the statements made by the CI admissible for their truth. As already stated, that application was not made by the Crown and so I considered this evidence of what the CI told DC Sgroi only for the purpose of understanding what DC Sgroi did when he met with the CI. To be clear, I did not consider any information provided by the CI to DC Sgroi as being true.
[17] DC Sgroi’s belief that the images he was shown by the CI on the CI’s cell phone were in fact screenshots of posts on an IG account and that they had been posted by Mr. Blackman, does not prove anything beyond the fact that this is what DC Sgroi testified that he believed about the images he saw on the CI’s cell phone. As I will come to, however, DC Sgroi obtained additional information that corroborated this belief, and if I accept that evidence it is based on what he was able to personally observe at the time on the CI’s cell phone and therefore is not hearsay evidence.
[18] As I will explain, DC Sgroi testified that after looking at the actual IG images on IG, he compared those images to the images on the CI’s cell phone, and he then took pictures using his cell phone of the three images on the CI’s cell phone (collectively the “Images”). It is those Images that the Crown alleges are accurate copies of IG posts made by Mr. Blackman to his IG account which the Crown alleges had a username of “sh.aun559”.
[19] As I will come to, there are inconsistencies in the evidence of DC Sgroi as to the order in which he did certain things when he met with the CI and how carefully he looked at the images in question, which I must consider in terms of the credibility and reliability of his evidence with respect to the Images. He gave evidence at the preliminary inquiry in this matter on December 17, 2020, and before Justice Maxwell of this Court on March 30, 2022, when the Defence brought a pre-trial Charter application.
[20] In his evidence at trial, DC Sgroi testified in chief that when he met with the CI, he saw three images of what he believed to be three screenshots on the CI’s cell phone. He testified that he had used IG before and that he told the CI that he wanted to see the images on IG. He then watched the CI navigate to the symbol for the IG app that he was familiar with, on the screen of the CI’s cell phone, he saw the CI click on that symbol for the IG app, and he then watched the CI open the IG app on his cell phone and he watched as the CI navigated to the IG account of sh.aun559.
[21] DC Sgroi testified that once the IG account of sh.aun559 was opened he saw rows and rows of small pictures. He was not able to say if the IG account was public or private. He watched the CI tap on three different pictures to bring them up to full size. DC Sgroi testified that the images that he saw were exactly the same as the images that he had just seen on the CI’s cell phone. He then started scrolling and looking through the pictures for an image of something illegal such as a gun or drugs. After less than a minute he stopped, as he called it “snooping,” as he did not see anything of interest to him. He did see several images of Mr. Blackman. He did not see any other posts of texts like the ones that the CI drew his attention to, but he said he was not looking for that. DC Sgroi testified that after the CI closed the IG app, he asked him to pull up the three images that he believed to be screenshots that he saw when he first met with the CI. Once the CI did this, DC Sgroi took pictures of the images that the CI had originally shown him, using his own cell phone, producing the three Images introduced into evidence.
[22] DC Sgroi did not look at this IG account on his own cell phone and although he admitted that he could have, he did not take pictures of the images that he saw on the sh.aun559 IG account on the CI’s phone, with his own phone. He said that he did not think to do it.
[23] The Images can be described as follows. The first image (“Image 1”) is admitted to be a picture of Mr. Blackman. He is in a gym and is holding and looking at a cell phone and taking what was referred to as a “mirror selfie”. There is a header at the top of the image that states “Photo”, partially cut off but clearly visible. Underneath the header half of a round coloured symbol can be seen next to “sh.aun559”. This appears to be the same as the profile picture associated with the sh.aun559 IG account seen elsewhere in the evidence that I will come to.
[24] The second image, (“Image 2”) is a picture of a man wearing a toque who is seated, and it is admitted that this man is TK. There is a header above this picture that includes common symbols that are for WI-FI, battery life, etc. This is consistent with this image being a picture of an image on a cell phone as DC Sgroi testified to. Underneath the picture of TK are certain symbols that were explained by Det. Belanger, that I will come to. The following text appears in the image:
sh.aun559 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 sh.aun559 I hope you are on IG SO YOU CAN SEE IT
[25] The third image, (“Image 3”) is of text only. Like Image 2 it has a header that includes symbols for Wi-Fi and battery life, consistent with the image being a picture of an image on a cell phone as DC Sgroi testified to. There is a time shown of 4:41, which if it was in fact a screenshot would be the time the screenshot was taken. Underneath the image there is the word Comments, with an arrow pointing back in front of this word and underneath that, next to a round symbol that for reasons I will come to, I find is the profile picture associated with the IG account of sh.aun559 (“Profile Picture”) is the following text:
Sh.aun559 COME ON NOW OFFICER TK STOP THIS SHIT NOW YOU WILL NEVER FINE THE GUN COME ON I KNOW EVERYTHING ABOUT YOU TK YOU know way I'm at come get THIS TIME I WILL BE READY FOR YOU ASS YOU AND YOUR FAT FRIEND my shooters are LOOKING FOR YOU AND YOUR FRIENDS OFFICER TK WE ARE COMEING FOR YOU OFFICER TK HIS WHAT YOU KNOW HIS WHAT YOU CAN PROV IM NOT THAT GUY WHO BUS GUN ON MY OWN PEOPLE I BUS MY GUN
[26] At the end of this text there appear 11 emojis of rats, faces of pigs and pig snouts. In addition, the final line states: “6h Reply”. I find given the undisputed evidence of Det. Belanger that if this image was in fact a screenshot, this text had been posted six hours before the screenshot was taken, which means that it was posted earlier on March 18, 2019.
[27] DC Sgroi testified that at the time he did not recognize that Image 2 was an image of an undercover officer and in fact he thought it was another picture of Mr. Blackman. He did not know who or what “officer TK” was and did not know that Images 2 and 3 constituted a criminal offence. He thought of these as a rap video. As a result, he gave the Images “no thought” and did not do anything about what he had seen at the time.
[28] In cross-examination DC Sgroi testified that he did not notice any other comments relating to TK and he did not open any chat bubbles. He paid the text “no mind” as he was looking for pictures of guns and so it would make no sense for him to start looking for more texts. DC Sgroi testified that he did not see nine or 10 pictures of the same individual as in Image 2. He also did not recall seeing the text on pictures of TK that were in fact posted to the sh.aun559 account that I will come to. DC Sgroi testified that the main thing he was looking for as he scrolled through the other pictures was pictures of guns.
[29] When it was put to DC Sgroi in cross-examination that he really did not have a hard look at the text in Images 2 and 3, he testified that he did read what he saw in the images he believed to be screenshots on the CI’s cell phone, and he looked at the IG account and the pictures the CI opened. He testified that he was able to say that the screenshots on the CI’s phone were the same as what was portrayed in the IG account itself. He admitted that he did not read the text in Images 2 and 3 a second time or “word for word” or “letter by letter” to make sure the images were the same as what he saw on the IG account, but he could see that the pictures were the same as what was captured on the CI’s cell phone.
[30] When pressed by Mr. Taraniuk, DC Sgroi testified that he did glance through the text on the posts on the IG account and that he could see the capital letters and the emojis and where they were in the picture and that he did not need to confirm letter by letter that they were the same because he could clearly see it was exactly the same as what he saw on the CI’s cell phone.
[31] About three weeks later DC Sgroi learned that TK was a real police officer and was involved in an investigation of Mr. Blackman. Once the significance of the IG posts became known, Mr. Blackman was arrested on April 3, 2019, and his cell phone was seized.
The Evidence of Det. Lisa Belanger
[32] Det. Lisa Belanger has worked at the Co-ordinated Cyber Centre with the TPS for 22 years. She was not called as an expert witness to give opinion evidence, but rather to give factual evidence as to how IG works based on her use of IG as part of her job. Her credibility and the reliability of her evidence was not challenged.
[33] Det. Belanger received the three Images that she believed related to compromise of an undercover officer. Her first goal was to find the actual images herself. The Images appeared to be pictures on a phone of images consistent with posts on IG with a Username of sh.aun559. On April 2, 2019, Det. Belanger accessed the sh.aun559 IG account by going to the IG website, rather than using the IG app. She testified that the IG account sh.aun559 was a public account when she looked at it, not a private account where permission to look at the posts must be given by the IG account holder. Accordingly, this IG account could be accessed and viewed either through the IG app or through the internet by typing in www.instagram.com.
[34] Det. Belanger took screen captures on her computer of some of what she saw, some of which I will refer to. She also downloaded the raw images and videos on the IG account and captured everything that was there at the time.
[35] Det. Belanger testified that when she opened the sh.aun559 IG account it showed all the pictures in the account in a “tile format” and she took a screenshot of as much of that page that she could capture. That screenshot shows six complete pictures of TK and three that are cut off at the bottom. All these images are of a picture of TK that has been cropped, a fact I will come to. The only difference between them is that different filters have been applied to them, for example changing the image from a colour picture to a black and white picture. By clicking on a tile, the full picture appears. I note this is consistent with the evidence of DC Sgroi as to what he saw when the CI opened up the sh.aun559 IG account and what he then saw the CI do.
[36] Based on the evidence of Det. Belanger, posts of pictures on IG by the IG account holder on his or her account can include text or emojis inserted by the IG account holder. In addition, text can be put in comments to a post. There is no dispute that at the time Det. Belanger looked at the sh.aun559 IG account that there were ten copies of the picture of TK posted to this IG account on March 18, 2019. As I will come to, three of those posts included text but none included the text in Image 2 or Image 3.
[37] Det. Belanger testified that the IG account holder would be able to delete posts and any comments he or she made on their own IG account. If a picture is posted with text by the IG account holder, the text can be deleted by the IG account holder. The only thing someone who sees an IG post can do to a post if they are not the IG account holder is to “like” or comment on a post. They cannot delete any comment that they make. They can, however, make a copy of any image that they see on IG.
[38] Det. Belanger identified a screenshot that she took of the IG ID associated with sh.aun559. The User ID for this account is 7884628868, which Det. Belanger testified cannot be changed. I note that 788-462-8868 is the phone number of the cell phone that was seized from Mr. Blackman when he was arrested. The Username for this account is shown as “sh.aun559”- the name chosen by the person who created the account. It is also part of the IG address. Det. Belanger testified that this can be changed. The “Full Name” is stated as “shaun” and Det. Belanger testified that the IG account holder can put whatever they want there. It does not have to be a full name and it can also be changed. The IG account holder must create a password to access their IG account.
[39] Det. Belanger explained what the symbols that appear above and below posts on IG mean. The heart symbol is how someone can show that they “like” a post, the quotation bubble is how someone can comment on a post and the arrow button is how someone can message the IG account holder. The word “Likes” shows how many times someone has liked the post. There are also hearts that appear next to any comments that have been made on a post, allowing someone to like the comment as well. If comments are longer than the space designated for them, then someone looking at the account needs to click on the comment to see it. There is a time stated underneath each post, e.g., “5h”, which is how one can determine when the original post was posted. The same is true of a time like “6h” underneath a comment. In other words, when looking at a post, if it states “6h” that means that it was posted six hours earlier.
[40] From the screenshots, Det. Belanger identified what she called the profile picture associated with sh.aun559, which can be described as being circular with what looks like a curved branch with leaves on either side. In the middle there are the letters BM on the top, the symbols $$$$$$ underneath that and the letters REC underneath the dollar signs. I will refer to this as the “Profile Picture” for the sh.aun559 IG account.
[41] Det. Belanger testified that for some of the posts on this IG account she clicked on the “likes” to see who liked the photo in the post. When she did so she found that there were likes by sh.aun559, the IG account holder, 1977 bigmoneyent with the name shaun and others.
[42] Det. Belanger identified three posts of the cropped picture of TK posted on March 18, 2019, and each of those posts included text, (hereinafter collectively the “TK Posts”). The first one, TK Post 1, included the following text:
Sh.aun559 OFFICER TK I DO NOT FUCKING LIKE COPS I WILL NEVER DO TORONTO RATS ARE WORKING HARD WITH THE POLICE THE RATS ARE MAKEING $1500TO $3.500 IF THE COPS COME UP WITH A GUN LOL. THIS SHIT FUCK UP PEOPLE ARE WORKING 9 TO 5 AND GETTING PAID $14 H lol
[43] I note that in this post, a similar spelling mistake by adding an “e” in the word “comeing” as found in Image 2 is made in the word “makeing”.
[44] In another screenshot taken by Det. Belanger of a second post in the same IG account, TK Post 2, the same cropped picture of TK is posted with the following text:
sh.aun559 People this is real talk look out for this COP GOING HARD IN THE CITY HE WORKS WITH THE RATS IN THE CITY
[45] Finally Det. Belanger identified a third post on the sh.aun559 IG account on March 18, 2019, TK Post 3, that included the following text:
Name OF TK HE IS A ONDER COVER COP IN THE CITY HE WORKS IN THE WEST END AND ALL OVER THE CITY OF TORONTO
[46] This post is followed by 13 emojis of pigs, faces of pigs and rats, similar to the emojis found in Image 3.
[47] Det. Belanger also identified nine pictures of TK that she downloaded from the sh.aun559 IG account on April 2, 2019, in other words, not screenshots. They were all image files with a .jpg file extension and had been posted to this IG account on March 18, 2019, between 10:14 am and 11:18 am.
[48] One picture that Det. Belanger downloaded is of the Profile Picture that I have already described. It was posted to this IG account on September 26, 2018. As it is a picture of just this Profile Picture you can see that it includes the words across the top of the inner circle: “BIG MONEY ENT”. There are a few pictures Det. Belanger downloaded of Mr. Blackman wearing a T-shirt with the Profile Picture on the front.
[49] One of the pictures downloaded by Det. Belanger is a picture of Mr. Blackman in the gym that was posted to this IG account on March 1, 2019. It is identical to Image 1 save for the header on Image 1 I have already described.
[50] Two of the pictures downloaded by Det. Belanger look like pictures of the front and the back of a business card for Big Money Entertainment that specializes in film making and making videos. There is a reference to: “Instagram: sh.aun599”, which I find is likely a typographical error and should state: “sh.aun559”.
[51] After looking at the sh.aun559 IG account Det. Belanger testified that she located the IG account of bigmoneyent. Det. Belanger took this step because in the IG posts on the sh.aun559 IG account she saw a lot of “likes” by this Username. She identified a screenshot of the IG ID for this account which shows a User ID of 11794596612 and a Username of 1977bigmoneyent. The full name is stated as: “Shaun”. The Profile Picture for this IG account shows a picture of Mr. Blackman in the gym. She identified a screenshot of the IG page for this account, which shows that it was a private account. Accordingly, she could not go into this IG account.
[52] Det. Belanger did not try to contact any IG user who had “liked” any of the posts on the sh.aun559 IG account to see if any of them had seen any of the disputed Images posted to this IG account. Similarly, she did not contact any of the persons following this account.
[53] Det. Belanger also located a YouTube account for Big Money Entertainment Records, and she identified a screenshot she took of the YouTube page associated with this account. It shows the Profile Picture associated with the sh.aun559 IG account.
[54] Det. Belanger identified a Preservation Request for these two IG accounts that she made to Facebook, the owner of IG at the time. They responded that they would take reasonable steps to preserve these accounts. Det. Cash testified that she received a response for the sh.aun559 IG account, which was marked as an exhibit. Mr. Taraniuk objected on the basis the information in this document is hearsay but after a discussion with Mr. Krueger, it was agreed that I could hear some evidence as follows. The response set out the information that IG had for the user with a target phone number, which is the phone number for Mr. Blackman’s cell phone and an IG account, sh.aun559. The second page of this response shows a phone number of 437-777-5432 which is the phone number associated with the WhatsApp account on Mr. Blackman’s cell phone.
[55] The response received for the IG account of bigmoneyent states a name of “Shaun” and an email address of blackmanshaun@gmail.com, which is the same email address that appeared in Mr. Blackman’s cell phone.
[56] Mr. Taraniuk cross-examined Det. Belanger about meta data that is associated with pictures. No objection was taken to this evidence and I was not concerned about it as it is common knowledge that anyone who takes pictures would know. If one is looking at the original picture, information as to when it was taken, by what device, possibly where it was taken etc. is available. This meta data is obviously only available if a picture is taken of a picture and the meta data is displayed as part of the original picture.
[57] The only evidence Det. Belanger gave concerning the Images themselves, that is admissible was that in cross-examination she testified that she was not aware of any software that could be used to create an image that looked like an IG post.
The Evidence of Det. Jennifer Cash
[58] After obtaining a search warrant, the cell phone that was seized from Mr. Blackman at the time of his arrest on April 3, 2019, was analyzed using an application called Cellebrite and the contents of the phone were loaded into a Cellebrite Report. There is no issue that the cell phone that was analyzed was Mr. Blackman’s cell phone although it is not admitted that he was the only one who had access to it or used it.
[59] Mr. Blackman admitted that the contents of this Cellebrite Report, including the dates and times, are accurate. As a result, it was agreed that it was not necessary to enter the entire report into evidence as it also contains personal information of Mr. Blackman. Instead, only the relevant images on the cell phone, from the Cellebrite Report, were introduced into evidence.
[60] Det. Jennifer Cash testified about the contents of the Cellebrite Report. Her credibility and the reliability of her evidence was not challenged.
[61] Det. Cash identified a screenshot that confirms the two accounts associated to Mr. Blackman’s cell phone. The first is the phone number for the cell phone: 788-462-8868 and the second is a WhatsApp account: 14377755432@s.whatsapp.net.
[62] The WhatsApp conversation that is included as an Appendix to the formal admissions was prepared by Det. Cash from the Cellebrite Report. To demonstrate to this Court the accuracy of this Appendix, Mr. Krueger cross-referenced some of its content to the actual content in the Cellebrite Report. Based on what I saw, and given the admission by Mr. Blackman, I am satisfied that the WhatsApp conversation is accurately set out in the Appendix.
[63] The WhatsApp conversation sets out the type of message, namely whether it is an Instant Message or an SMS Message, whether it is outgoing or incoming, the date and time and who the message is from and to whom the message is sent. The content of the message is also set out.
[64] The WhatsApp account on this phone showed the owner as “Do You need Landscaping”. In a message from this account to a driving school the message stated: “Hey good afternoon this is Shaun and included an email address: Blackmanshaun142@gmail.com. Significantly, in an outgoing message from this WhatsApp account on March 17, 2019, the message states: “My IG IS sh.aun559.” This exchange confirms that Mr. Blackman was the one using this WhatsApp account and also confirms that the IG account sh.aun559 was his.
[65] Mr. Blackman admits that a “WhatsApp” conversation and other information on his cell phone in the Cellebrite Report includes references to TK and this is clear from the Appendix.
[66] Based on the content of the WhatsApp conversation and the evidence of Det. Cash, the relevant portions of the WhatsApp conversation that occurred on March 3, 2019, starting just before 3:30 pm and ending just before 4:00 pm on the same day, are as follows:
a) At 15:28 at about 3:30 pm, a message was sent from the WhatsApp account 14377755432@s.whatsapp.net “Do You need Landscaping (owner)”, (hereinafter referred to simply as “Landscaping”) to a WhatsApp account where the owner was described as “D…Empress” , which I find was someone associated with the hair salon D’Empress (hereinafter simply referred to as D’Empress”). The message was: Hey do you have any pictures of T.K I need it for tonight”.
b) The return message asked: “What's going on tonight”. The response to this was: “to church” and that was clearly an inside joke as the back and forth between these two WhatsApp users ended with a message from Landscaping that was simply four emojis of laughing crying faces - 😂😂😂😂.
c) In response, the D’Empress WhatsApp user stated: “You sick I will see if I can take a screenshot of him in the video dont have pic”.
d) A brief exchange between these two WhatsApp users followed and at 15:51 the D’Empress WhatsApp user sent an image to Mr. Blackman’s cell phone that is a picture of TK. I find that this is the original picture of TK (“Original”) that was received by Mr. Blackman. Cropped versions of this picture (“Cropped”) were later posted on the sh.aun559 IG account on March 18, 2019, in the posts that are not disputed to have been on this IG account. The Original picture was cropped to remove the top of TK’s head so a green sign in the background is not visible, and the bottom of his elbow so the type of chair he was sitting on cannot be seen.
e) After D’Empress sent this Original picture of TK, there was a further message from this account to Landscape that stated: “Trying to get the other one I had but since I change phone”.
f) The response from Landscape to D’Empress at 15:52 was: “I need a good one”. D’Empress responded: “That’s all I can get” and a minute later a further response: “Still looking” to which the Landscape WhatsApp user responded: “Ok”.
[67] Det. Cash identified a number of pictures on Mr. Blackman’s phone that are of the Cropped picture of TK. Some have clearly been further manipulated by using different filters; for example, changing the image from a colour picture to a black and white picture. They were found in two different places on the cell phone and the two sets of pictures were the same save that one set was a different size than the other.
[68] Det. Cash also identified a number of pictures that were in Mr. Blackman’s phone that are the same as those posted to the sh.aun559 IG account and identified by Det. Belanger. They include a picture of Mr. Blackman in the gym that is the same as Image 1.
[69] Det. Cash did not investigate the person who sent the picture of TK to Mr. Blackman’s WhatsApp account and admitted that obviously this other person also had a copy of the picture of TK.
[70] Det. Cash testified that she found no evidence of anyone else using Mr. Blackman’s cell phone. There were no conversations that led her to believe that another person was using the phone. No one else said anything such as ‘this is my email address or my IG account.’ There were 1000s of text messages and although she saw a couple where Mr. Blackman started the text by saying “Hi, this is Shaun”, she did not see any text messages from someone other than Mr. Blackman introducing themselves, with another name or self-identification and no other contact information from anyone else other than Mr. Blackman.
Analysis
Credibility of DC Sgroi and the Reliability of his Evidence
[71] Mr. Taraniuk raised serious concerns about the credibility and the reliability of DC Sgroi’s evidence. I found that he presented as a witness doing his best to be truthful, and I do not agree with Mr. Taraniuk that he was not responsive in cross-examination. That said, I do have concerns about the reliability of some of his evidence.
[72] Mr. Taraniuk cross-examined DC Sgroi extensively about alleged inconsistencies between his evidence at trial and his evidence at the preliminary hearing on December 17, 2020, and before Maxwell J. on March 30, 2022.
[73] At the preliminary inquiry, in his evidence in chief, after DC Sgroi gave some evidence of what happened, the Crown asked him to take it “one step at a time”. It was then put to DC Sgroi that the first thing he did was to “see” what appeared to be screenshots on the CI’s phone, which he took pictures of resulting in Images 1 to 3. DC Sgroi answered that this was correct although I note it was a very leading question if the sequence was important to the Crown as suggested by Mr. Taraniuk. When Mr. Taraniuk put to DC Sgroi that this answer seemed to suggest that he took a picture of the screenshots first, he answered that he did not know the sequence of events was important.
[74] In cross-examination at the preliminary inquiry on this issue DC Sgroi again confirmed that after he “saw” what he believed to be the three screenshots on the CI’s phone he took pictures of them, and he then went to the actual posts on the IG account. When at trial DC Sgroi was asked if this was the order of events, he admitted that this is how the transcript reads but he was not turning his mind to the sequence but only the fact that it was the images on the CI’s cell phone that he had captured. He responded that he did not realize then that he had to pay more attention to the sequence and that he should have been more careful.
[75] Considering only this evidence of DC Sgroi at the preliminary inquiry, it is clearly inconsistent with the order of events DC Sgroi testified to at trial, but I accept that this was an honest mistake. Quite frankly it shows how a witness can be influenced by a leading question. Presumably Mr. Krueger believed that the officer took pictures of the screenshots first and that is why he asked the leading question. Although as DC Sgroi said himself, he should have been more careful, I understand why he was focused on the fact that it was those images on the CI’s cell phone that he took pictures of, not the actual IG posts that he saw, as he must have realized that his failure to take pictures of the actual IG posts was creating an issue.
[76] This issue came up again when DC Sgroi testified before Maxwell J. I have not read her decision, nor did I want to, as I did not want to be influenced by any factual findings she may have made. In any event, before her, in terms of sequence of events, DC Sgroi told the Crown, Mr. Scratch, that he looked at the IG account first and then took the screenshots as he was paranoid about someone learning that he had accessed them personally. Later in cross-examination DC Sgroi testified that he “saw the Instagram account first, and then I saw the screenshot and I can tell you they were the same”. When he was later taken in cross-examination to the earlier evidence he had given at the preliminary inquiry, he said that evidence was not correct because he remembered seeing the IG before he “saw” the screenshots, but he did not “examine” them.
[77] In cross-examination at trial, after being taken through his earlier evidence, DC Sgroi testified that he agreed with Mr. Taraniuk that he had previously stated that he saw the IG posts first. DC Sgroi responded that he could see why this was confused but that was not how it happened. When it was suggested to DC Sgroi that he did not really remember the order of events, he disagreed and said that he would tell us exactly what happened.
[78] DC Sgroi then testified that when he met with the CI, he asked him to show him the pictures of Mr. Blackman. The CI then showed him what he believed to be the screenshots that the CI had taken. DC Sgroi testified that he knew that because they were saved to a “gallery” which DC Sgroi knew meant they were not the actual pictures on the IG account. DC Sgroi saw these images first, but he did not examine them because he immediately asked to see the original posts if they were still up. He testified that it was only “technically” that he saw the screenshots on the CI’s phone first.
[79] Mr. Taraniuk pursued this issue and suggested to DC Sgroi that he had testified at trial that he compared the images on the CI’s phone with the pictures on the IG account “side by side”. There was no objection to this question, but I do not believe DC Sgroi ever gave that evidence. In any event, in answer to this question he testified at trial that although that would have been possible to do that, he was not sure if he physically saw them side by side and that if this is what he said in his evidence in chief it was not precise. As in fact he did not give this evidence, there is no inconsistency; although, I note that in this exchange DC Sgroi was a very fair witness.
[80] Mr. Taraniuk then took DC Sgroi to an earlier part of his evidence before Maxwell J. where he testified that the IG posts and the images on the CI’s cell phone were the same.
[81] Finally, Mr. Taraniuk took DC Sgroi to a portion of his preliminary inquiry where he testified to being “fairly certain” that he saw the threatening messages on the sh.aun559 IG account as contained in what he believed were the screenshots on the CI’s phone as he was looking through the images on this IG account.
[82] When this passage was put to DC Sgroi at trial, he testified that it was not said with the inflection Mr. Taraniuk used when he read this evidence in. He said that he should have been more accurate and testified that he knew they were the same because he saw both of them. He went on to state that the correct answer is that he saw them, and they were the same. He should not have answered “fairly certain”. It was then put to DC Sgroi that he did not in fact look at the IG account to confirm these images were there and he responded that that was incorrect.
[83] In re-examination DC Sgroi testified that he has a memory of seeing the three pictures that he took pictures of in the IG account.
[84] I will come to my findings of fact with respect to DC Sgroi’s evidence, but I do find that had I needed to rely on the accuracy of his evidence in order to find Mr. Blackman guilty beyond a reasonable doubt that I would not have been able to do so.
The Law with Respect to Circumstantial Evidence
[85] To some extent the Crown’s case depends on circumstantial evidence. Counsel did not refer me to any particular case, but the law is this area is clear and settled. In drawing inferences in this case and making my findings of fact and culpability, I have applied the principles set out in the Supreme Court of Canada’s decision in R v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
[86] When the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the defendant's guilt is the only reasonable inference to be drawn from the evidence as a whole: Villaroman, at para. 20. Inferences consistent with innocence do not have to arise from proven facts but may also arise from an absence of evidence. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: Villaroman, at para. 35.
[87] However, as Mr. Krueger argued during closing submissions, I am not permitted to speculate. As that was a serious issue in this case, I set out a passage from Villaroman at paras. 37-42, which I found particularly helpful:
[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt [citations omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “ negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused ” [citation omitted]. “ Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation . [Italics in original]
[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience , is reasonably capable of supporting an inference other than that the accused is guilty.
[39] I have found two particularly useful statements of this principle.
[40] The first is from an old Australian case, Martin v Osborne 55 C.L.R. 367, at p. 375 : [citation omitted].
[41] … I find the idea expressed in this passage – that to justify a conviction, the circumstantial evidence, assessed in light of human experience , should be such that it excludes any other reasonable alternative – a helpful way of …describing the line between plausible theories and speculation [citation omitted].
[42] The second is from R. v. Dipnarine, [citation omitted]. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;” that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible . [Emphasis added]
Findings of Fact
[88] The Crown’s case depends on my being able to find that Images 2 and 3, two of the three pictures DC Sgroi took of the images he saw on the CI’s cell phone are true copies of actual posts made by Mr. Blackman on his IG account sh.aun559.
[89] It is the position of Mr. Blackman that it was actually the CI that DC Sgroi met with who fabricated the images on the CI’s cell phone that he showed to DC Sgroi so that he could be paid for his information. DC Sgroi did testify that after Mr. Blackman was charged with the offences before this Court that the CI was compensated for the information he provided to DC Sgroi. Notwithstanding the arguments made by Mr. Krueger to the contrary, or the fact that the CI was not immediately paid for showing the Images to DC Sgroi, I am prepared to accept that the CI might have had a motive to fabricate evidence that he or she believed that they might be paid for.
[90] With this position in mind, I come back to the evidence of DC Sgroi. Notwithstanding the external inconsistencies in his evidence, I am satisfied that when he met with the CI that the CI first showed him what he believed to be screenshots. If I find that DC Sgroi did not look at them closely because he wanted to see the original IG posts on the sh.aun559 IG account, that makes sense and I find that he did so by watching the CI open the IG app on his phone and navigate to the sh.aun559 IG account and then open three pictures for DC Sgroi.
[91] It obviously would have been preferable if DC Sgroi had then taken pictures of what he saw on the CI’s cell phone rather than let him close the IG app and then take pictures of what he believed were screenshots of those posts he had just seen, because had he done so there would be no issue about the accuracy of what was posted to this IG account at the time. However, that is not what happened. The issue then is to what extent can I rely on the evidence of DC Sgroi to find that the Images, namely the pictures he took of the images he saw on the CI’s cell phone, were in fact the same as what he saw on the actual sh.aun559 IG account?
[92] If my findings of fact in this case that the text in Image 2 and Image 3 is identical, word for word, to the text of actual posts on the sh.aun559 IG account that DC Sgroi saw at the time, depended only on the evidence of DC Sgroi, I would not be able to find that as a fact. That is because in his own words he was not interested in the text as he did not think it was evidence of a crime. He was clearly interested in looking through the pictures on the sh.aun559 IG account for incriminating evidence such as a firearm.
[93] Given that DC Sgroi immediately wanted to see the original posts on the sh.aun559 IG account, I find that that is where he must have read the text that he told me is the same as the text in Image 2 and Image 3. I make that finding because it would have only been by reading the texts that DC Sgroi could have concluded, as he erroneously did, that the texts did not reveal a crime. He could only have come to that conclusion by at least quickly reading the text in both images. Having come to that conclusion, however, I cannot find that he would have closely compared what he saw on the actual IG account to the images on the CI’s phone to reliably tell me that they were exactly the same. On this point I should say that I find that is what DC Sgroi honestly believes. I do not find he was not being truthful, but I do have concerns about the reliability of this evidence. As Mr. Taraniuk submitted, DC Sgroi was more interested in looking for pictures of a firearm. He did not remember seeing the three TK Posts that Det. Belanger identified.
[94] However, I do find that the evidence of DC Sgroi, despite this limitation, is helpful to the Crown. As I have already stated I do find that the CI opened his IG app and navigated to the sh.aun559 IG account and that DC Sgroi would have at least quickly read the text in Images 2 and 3 from the actual posts in the sh.aun559 IG account. Although I cannot find that he then compared what he saw in the text on the actual IG account to the text in the pictures on the CI’s cell phone, I do find that he was able to make some comparison that is reliable.
[95] I do accept DC Sgroi’s evidence that he glanced through the text on the posts on the IG account and that he could see the capital letters and the emojis and where they were in the picture and that he did not need to confirm letter by letter that they were the same because he could clearly see they were exactly the same as what he saw on the CI’s cell phone. Image 2 is quite distinctive as the text is below a picture of a person DC Sgroi erroneously believed to be Mr. Blackman and it is all capital letters. By looking at it quickly, I can understand why DC Sgroi believed it to be the same as what he saw on the IG account. Image 3 is entirely text and a lot of emojis and for that reason also quite distinctive. Although I do not find that DC Sgroi would have read the words carefully, I do find he did at least skim it enough to know generally what it said and that he felt comfortable that what he saw in the image on the CI’s cell phone was the same.
[96] I must however consider the evidence of DC Sgroi in the context of all the other evidence. That evidence corroborates his evidence that Images 1, 2 and 3 were posted by Mr. Blackman on his IG account sh.aun559 on March 18, 2019 even though the text in Images 2 and 3 were not on that IG account when it was investigated by Det. Belanger or anywhere else on Mr. Blackman’s cell phone. My reasons are as follows.
[97] I begin by finding not only that the cell phone seized from Mr. Blackman was his cell phone, which is admitted, but that no one else used his cell phone. Based on the evidence of Det. Cash, who reviewed everything that was downloaded from the cell phone, there is no evidence of anyone else using Mr. Blackman’s cell phone.
[98] The most compelling evidence against Mr. Blackman is that on his cell phone there was a WhatsApp account that he was clearly using for communication. In an outgoing message from that account to Driver All Star he identified himself as Shaun and he identified an email address of Blackmanshaun142@gmail.com, which was the email address associated with IG account bigmoneyent, according to the response Det. Cash received from Facebook.
[99] I am therefore satisfied that Mr. Blackman used his WhatsApp account to request a good picture of TK from someone at D’Empress where both he and TK worked and that he did so on March 3, 2019 before the IG posts in question are alleged to have been posted. He therefore had a copy of the picture of TK as of that date.
[100] The evidence is also clear that Mr. Blackman spent some time manipulating the Original picture that he received of TK by cropping it, applying different filters and even changing its size. There were nine or ten copies of a picture of TK on his cell phone. All of these modified versions of the picture of TK were uploaded to the sh.aun559 IG account on March 18, 2019 within the span of an hour in the morning. This date is important because if Image 2 is a screenshot of an actual post on the sh.aun559 IG account, it was posted on March 18, 2019.
[101] In my view, although it was not admitted by Mr. Blackman, Mr. Taraniuk conceded that there is a lot of evidence pointing in the direction of a finding that the sh.aun559 IG account was Mr. Blackman’s IG account. In my view, the evidence clearly supports that finding and I do find that sh.aun559 was a public IG account and that Mr. Blackman was the account holder. As already stated, he uploaded various pictures of TK from his cell phone to that IG account. Furthermore, in a WhatsApp message he stated that his IG was sh.aun559.
[102] Although as Mr. Taraniuk submitted, the Original picture of TK that was sent to Mr. Blackman via WhatsApp on March 3, 2019 was obviously also in the possession of the person who sent it to him, the picture of TK that appears in Image 2 is cropped in the identical way to the many copies of the Cropped picture of TK found on Mr. Blackman’s phone. This does not strike me as a likely coincidence.
[103] Given my finding that the sh.aun559 IG account was Mr. Blackman’s account, based on the evidence of Det. Belanger, as the account holder he could have deleted Image 2 and Image 3 if they were in fact posted on March 18, 2019 as the Crown alleges, some time before the cell phone was seized on April 3, 2019. I need not speculate why Mr. Blackman might have deleted these particular texts and left others involving TK on his IG account. What is relevant is that his ability to do so means that there is a possible explanation for why these texts were not on his IG account when his account was investigated by Det. Belanger.
[104] Image 1 is identical to a mirror selfie picture Mr. Blackman had of himself in the gym on his cell phone, save that it is obviously displayed on a cell phone given the header at the top of Image 1. It is clear then that this image the CI showed DC Sgroi was in fact taken from a post on Mr. Blackman’s IG account that had been posted on March 1, 2019, which corroborates DC Sgroi’s evidence. Furthermore, the fact it was displayed on a phone corroborates the belief of DC Sgroi that the CI was showing him a screenshot. Furthermore, that header at the top that shows the word Photo cut off at the top, half the profile picture and the reference to sh.aun559 also is consistent with this Image being a screenshot of the actual picture posted on the sh.aun559 IG account.
[105] I have set out the details of the three TK Posts identified by Det. Belanger that given my other findings were clearly made by Mr. Blackman on his sh.aun559 IG account. Each of these posts warned everyone that TK was an undercover officer working with rats in the city. What is telling about these TK Posts is their similarity to the text in Images 2 and 3. I do not accept Mr. Taraniuk’s submission that there is a difference in language that suggests Images 2 and 3 were posted by someone other than Mr. Blackman. First, mostly capital letters are used, secondly in TK Post 1, there is an unusual type of spelling mistake that is similar to the spelling mistake made in Image 3. Finally, the use of emojis, particularly virtually the same emojis between Image 3 and TK Post 3 is striking. I note as well that in both the disputed Images and in TK Post 1, the undercover officer is referred to as “officer TK”. It is also significant that it is clear that by March 18, 2019, that Mr. Blackman knew that TK was an undercover police officer, and this is disclosed both in Images 2 and 3 and in the TK Posts.
[106] Although as I have stated I accept that the CI might have had a motive to fabricate Images 2 and 3, the fact Mr. Blackman had been charged with firearms offences, that he clearly knew that TK was an undercover police officer by March 18, 2019, and that TK was going to be testifying against him at the upcoming preliminary inquiry all gave him a motive to post these types of texts.
[107] For all of these reasons, despite the shortcomings I have identified in the evidence of DC Sgroi, the other evidence corroborates his belief that Images 2 and 3 were posted to the sh.aun559 IG account by Mr. Blackman.
[108] I come then to some of the arguments advanced by Mr. Taraniuk on behalf of Mr. Blackman. Before I turn to them individually, I have concluded that all of them would require me to speculate and draw inferences that in my view are not reasonable on the evidence before me. As stated in Villaroman, at para. 37, the Crown does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”.
[109] It is argued that the Crown has not proven that no one else had the password to Mr. Blackman’s IG account, implying that someone else could have posted Images 2 and 3. In my view, this is not a fact that the Crown had an onus to prove. The evidence is clear that Mr. Blackman was the IG account holder of the sh.aun559 IG account and he did not testify or lead any other evidence to suggest that others knew his password. Furthermore, the fact he received the Original picture of TK on his WhatsApp account, manipulated it, and posted it on his IG account multiple times and three times with texts that have many similarities to the texts in issue also leads me to the conclusion that he was the one who posted Images 2 and 3 to his IG account.
[110] Mr. Taraniuk submitted that the Crown did not call evidence that Mr. Blackman deleted any posts from his IG account. He also argued that police could have obtained information from Facebook to show that posts were deleted. First, there is no evidence before me that Facebook could have provided this information. This question was not asked of either Det. Belanger or Det. Cash. Furthermore, in my view it was not for the Crown to prove that Mr. Blackman actually deleted the posts reflected in Images 2 and 3. As already stated, on the evidence of Det. Belanger it was only the IG account holder whom I have found to be Mr. Blackman who could delete a post or comment on his IG account. In my view, it is enough that that could have been done by Mr. Blackman to explain why Images 2 and 3 were not on Mr. Blackman’s IG account when Det. Belanger looked for them.
[111] Mr. Taraniuk submitted that someone, possibly the CI could have hacked into Mr. Blackman’s IG account and posted Images 2 and 3 and then deleted them. Again, this is pure speculation and in any event is a fanciful conjecture that the Crown was not required to negative.
[112] Mr. Taraniuk also submitted that it is possible that the CI made copies on his cell phone of the pictures Mr. Blackman had posted of TK on his IG account, and then used a software like Desktop Publishing to create Images 2 and 3. I accept that someone who looked at this public IG account could take copies of the pictures of TK that were posted. However, when I look at Images 2 and 3 it seems to me that it would be very hard if not impossible to recreate images like these. In addition to the picture of TK, the images include the various symbols that Det. Belanger referred to that one would see on an IG post. The only evidence before me on this issue is the evidence of Det. Belanger that she was not aware of any software that could be used to create an image that looks like an IG post. Again, in my view this argument invites speculation and is another fanciful conjecture that the Crown was not required to negative.
[113] Finally, I have considered the argument that there could have been better evidence called by the Crown had there been a better investigation. Mr. Taraniuk submitted that it might have been helpful if we had the meta data from the images on the CI’s phone and he referred to images he had introduced into evidence to show the type of meta data that is available with a picture. However, Det. Belanger testified that when pictures are posted to IG this information is stripped from the image so even if DC Sgroi looked for this information on the original IG account, he would not have found this.
[114] Mr. Taraniuk also argued that no one who liked posts on the sh.aun559 IG account nor anyone who was following this account was contacted by police to see if they recalled seeing Images 2 and 3 posted to the account. This however is not an issue for me to be concerned about. The issue before me is whether on the evidence I do have the Crown has proven its case against Mr. Blackman.
[115] For all of these reasons I find that the only reasonable inference from the evidence as a whole, which is supported by a great deal of direct evidence, is that it was Mr. Blackman who posted Images 2 and 3 to his IG account.
[116] I turn then to the Counts in the Indictment.
Has the Crown proven Count #1 Beyond a Reasonable Doubt?
[117] In Count #1 Mr. Blackman is charged with engaging in conduct on March 18, 2019, with the “intent of provoking a state of fear in a justice system participant” namely TK, an undercover police officer, “in order to impede him in the performance of his duties”, contrary to s. 423.1(1)(b) of the Criminal Code.
[118] Section 423.1(1) provides as follows:
No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in
(b) a justice system participant in order to impede him … in the performance of his … duties ; … [Emphasis added]
[119] “Justice system participant” is defined in s. 2 of the Criminal Code and includes a “peace officer” which is in turn defined in s. 2 to include a police officer. There is therefore no issue that this section covers TK as an undercover police officer. There is also no issue that Mr. Blackman lacked legal authority to make the posts.
[120] The only case counsel are aware of that has considered s. 423.1(1)(b) of the Criminal Code is R. v. Armstrong, 2012 BCCA 248, leave to appeal refused [2012], 452 N.R. 400 n (S.C.C.). As Mr. Taraniuk pointed out, Armstrong was decided when the type of conduct was defined in the section to refer to using violence or threatening to use violence or destroying or causing damage to property. The section now is broader in that it includes “any conduct” provided the other elements of the offence are met.
[121] Armstrong, however, is still of assistance on the issue of what the Crown must prove with respect to Mr. Blackman’s intent when he posted Images 2 and 3.
[122] Armstrong concluded that s. 423.1 is a specific intent offence (at para. 44) as opposed to a general intent offence. That specific intent is “the purpose” of the performance of the actus reus. The Court in Armstrong noted that the section states “in order to” rather than “with intent to” (at para. 47), but the Court rejected the Crown’s submission that as a result the mens rea test was somewhat relaxed. The Court proceeded to apply the test in R. v. Chartrand, [1994] 2 S.C.R. 864 and at para. 52 held that: “ Chartrand recognized that the phrase ‘with intent to’ is satisfied where the accused foresees that his actions would be certain to have or substantially certain to have the prohibited effect ” [emphasis added]. At para. 46 the Court referred to that fact that in Chartrand the court commented that intent can be inferred from the surrounding circumstance “when we consider that intent is very seldom exteriorized”.
[123] Mr. Krueger referred to the 2022 version of Tremeear’s Criminal Code by former Justice Watt and Justice Feurst, where Armstrong is summarized. It is stated that: “D’s purpose need not be to impede the participant, provided D sees that impeding the participant will be the predictable and inevitable effect of the threats” [emphasis added]. As I understand it, this statement points out, as stated in Armstrong at para. 45 and in the passage from Chartrand and the inclusion of a passage from the case of R. v. Olan, [1928] 2 S.C.R. 1175 at pa. 1182, that “intent … may encompass a contemplated outcome distinct from the purpose of the conduct”.
[124] Mr. Taraniuk submitted that the Crown has not proven this specific intent, namely that the texts were posted by Mr. Blackman so that TK would not testify at the preliminary inquiry, and he pointed out that the officer did give evidence. He submitted that the texts make no mention of coming to court and the better inference is that they show Mr. Blackman was angry because the officer was not telling the truth. I note that the section does not require that the intent or purpose of the posts be successful.
[125] Mr. Krueger submitted that in this case the requirement for a specific intent does not mean that the intent must have been to stop TK from testifying. It could simply mean an intention that TK could no longer operate as an undercover officer. He submitted that because of these posts anyone with access to IG would have seen TK’s picture and would know that he was in fact an undercover police officer. It is Mr. Krueger’s position that being an undercover officer is a dangerous job and that TK was involved in a serious firearms investigation, and it would be reasonably foreseeable that he would no longer be able to work as an undercover police officer and that he could be killed.
[126] To this submission Mr. Taraniuk submitted that there is no evidence before this Court that undercover officers are being shot if their true identity is discovered and that the only thing that would happen is that TK would no longer be able to work as an undercover officer. He argued that this policy reason is why undercover officers are permitted to hide their identify when testifying in Court.
[127] I have found that the Crown has proven the actus reus of the offence and I find that Mr. Blackman clearly intended to post Images 2 and 3 on his IG account. The question then is whether or not the Crown has proven beyond a reasonable doubt that his specific intent was as required by the section. As Mr. Blackman did not testify, I must infer from the surrounding circumstances what his intent was.
[128] I agree with Mr. Krueger that the purpose in Mr. Blackman posting Images 2 and 3 does not have to have been to prevent TK from testifying. I will come to his submission that being an undercover officer is a dangerous job. Considering only Images 2 and 3, in my view it is reasonable to infer that Mr. Blackman made a threat that he and his “shooters” were coming for TK and there was a clear threat to harm TK by the use of the term “shooters” who were coming for him. It must be remembered that Mr. Blackman was charged as part of a project case with many others and the allegations involved firearms.
[129] There was no clear reference to the fact TK was going to testify against Mr. Blackman in Images 2 and 3, but TK was told that he should “stop this shit”. Since TK was no longer working undercover at D’Empress, the only thing this could reasonably be a reference to is the fact that TK was going to be a witness against Mr. Blackman. It is true as Mr. Krueger argued that everyone who had access to IG and knew the undercover officer as TK would now know that TK was an undercover police officer. Furthermore, since a picture of TK was part of Image 2, everyone who looked at the post would understand that this person in the picture, TK, was an undercover police officer.
[130] The question is whether considering all of the circumstances, including the picture posted of officer TK and the texts in both Image 2 and 3 whether Mr. Blackman foresaw that his actions would be certain to have or substantially certain to have provoked a state of fear in TK in order to impede him in the performance of his duties. In my view, the only reasonable inference to draw from all of these circumstances, is that Mr. Blackman at least would have foreseen that his posts in Images 2 and 3 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.
[131] For these reasons I find that by posting Images 2 and 3 Mr. Blackman is guilty of Count 1.
[132] In the course of argument, Mr. Krueger modified the Crown’s position somewhat and he submitted that even considering the three TK Posts alone, which were clearly posted by Mr. Blackman, that these posts could result in a finding of guilt on Count 1. As this was a new position, I gave Mr. Taraniuk time to consider his response.
[133] Mr. Kreuger’s argument on the three TK Posts alone was that although they did not contain a threat of harm, by his identity as an undercover police officer being revealed on IG, TK would reasonably fear for his safety and that given he had been involved in an investigation about firearms he could fear that he could be killed. Mr. Taraniuk responded that there was no threat of harm in the TK Posts and that there was no evidence to suggest that by TK’s identity being revealed that Mr. Blackman foresaw that his actions would be certain to have or substantially certain to have provoked a state of fear in TK in order to impede him in the performance of his duties. He submitted that the posts went no further than telling everyone who deals with TK to know that he is an undercover officer that deals with rats and so Mr. Blackman was warning others not to deal with TK.
[134] My initial reaction to these submissions was that it would be reasonable to expect that an undercover officer would fear for his safety if his true identity was revealed even in the absence of direct threats like those in Images 2 and 3. However on reflection, without more evidence, I came to the tentative view that Mr. Taraniuk’s submission that the Crown had not proven beyond a reasonable doubt that Mr. Blackman would foresee that revealing TK’s identity would provoke a state of fear in him that he might be killed or shot made sense. It was Mr. Taraniuk’s position that the reason undercover officers take steps to avoid revealing their true identity is not because they fear they will be harmed but because they want to continue to be able to work as undercover officers. He submitted that there is no evidence to suggest that Mr. Blackman would think that TK would be in danger if his true identity was revealed.
[135] As I considered this issue further, I noted that the section does not use the phrase: “state of fear for his safety” but rather only that the conduct of Mr. Blackman provoke a state of fear in order to impede TK from the performance of his duties, which in my view clearly could include his performance as an undercover officer. It is the use of the term “fear” that makes this difficult. This word is more in keeping with the prior wording of this section, set out in Armstrong, that required the conduct to consist of using violence or threatening to engage in violence. That wording was removed from the section and replaced with “any conduct” and so there is no longer a requirement that the conduct be violent or threaten violence. I agree with Mr. Taraniuk, however, that by provoking a state of fear, more is required than proof the conduct would be taken seriously. That begs the question of what a “state of fear” means if it does not require a threat of violence.
[136] The word “fear” can of course mean a fear of something that is dangerous, but it can also mean simply fearing that something unwelcome will happen. With the removal of the requirement of violent conduct in the section, I have come to the conclusion, that in all of the circumstances, considering the TK Posts alone, that the Crown has proven beyond a reasonable doubt that Mr. Blackman would foresee that by revealing the true identity of TK he would be certain or substantially certain that this would provoke a state of fear in TK in that he would fear the unwelcome result that he could no longer perform his duties as an undercover police officer and that would impede him from continuing in his role as an undercover officer. This is the case even if TK did not fear for his personal safety as a result of his true identity being revealed.
[137] For these reasons I find that by posting the TK Posts the Crown has also proven beyond a reasonable doubt that Mr. Blackman is guilty of Count #1.
Has the Crown proven Count #2 Beyond a Reasonable Doubt?
[138] Count 2 charges Mr. Blackman with knowingly uttering, conveying or causing TK to receive a threat to cause death or bodily harm to him, contrary to s. 264.1(1)(a) of the Criminal Code. Mr. Taraniuk fairly conceded that if I found Images 2 and 3 were posted by Mr. Blackman that he would be found guilty of Count 2.
[139] Given that I have found Images 2 and 3 were posted by Mr. Blackman to his IG account, there can be no doubt that he did so knowingly. The text in those images clearly threatens the officer by stating for example in Image 3 that Mr. Blackman was “comeing for you officer TK”, “my shooters are looking for you” and that “we are comeing for you officer TK”. I have no difficulty in finding that these were threats to cause death or bodily harm to the officer. Accordingly, I find that the Crown has proven beyond a reasonable doubt that Mr. Blackman is guilty of Count 2.
Disposition
[140] Mr. Blackman would you please stand.
[141] For the reasons I have given I find you guilty of Counts 1 and 2.
N.J. Spies J.
Released: May 9, 2022 Edited Decision Released: May 20, 2022