Overview

[1] On May 9, 2022, I found the defendant, Shaun Blackman, guilty of 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 as set out in Count 1 and uttering a threat to cause death or bodily harm to TK, contrary to s. 264.1(1)(a) of the Criminal Code as set out in Count 2. I gave written Reasons for Judgment reported at R. v. Blackman, 2022 ONSC 2735 (“Judgment”).

[2] Mr. Blackman is now before me for sentencing.

Circumstances of the Offences

[3] The facts of these offences are set out in detail in my Judgment. In summary, in July 2018, Mr. Blackman was arrested and charged with various weapons trafficking offences as part of Project Patton. TK was one of the undercover officers who was part of the investigation which targeted and led to the arrest of a large number of individuals including Mr. Blackman. At the time, TK was posing as a barber at D'Empress Hair Design (“D'Empress”), where Mr. Blackman was also a barber. Although TK and another undercover officer employed various investigative techniques over a four-and-one-half month period to obtain a gun from Mr. Blackman, no gun was ever produced. Mr. Blackman was acquitted of all his firearms charges in February 2021 by Justice Ducharme of this Court.

[4] In convicting Mr. Blackman of these offences, I found that on March 18, 2019, at a time when TK was about to give evidence in support of the charges at Mr. Blackman’s preliminary inquiry, Mr. Blackman posted on his Instagram (“IG”) social media account two images, one a photo of TK along with comments stating that TK is a police officer and making threats to harm TK, and the other a post of text only in which he made further threats against TK. I agreed with Mr. Krueger that the purpose in Mr. Blackman posting these two images did not have to have been to prevent TK from testifying and I found that considering only these two images that it was reasonable to infer that Mr. Blackman made a threat that he and his "shooters" were coming for TK and that there was a clear threat to harm TK by the use of the term "shooters" who were coming for him, given that Mr. Blackman was charged as part of a project case with many others and the allegations involved firearms.

[5] In my Judgment, I also describe three other posts on Mr. Blackman’s IG account on March 18, 2019, referred to as the “TK Posts” that were of cropped pictures of TK, each with text that referred to TK as either a cop or an undercover officer cop. These posts did not contain threats of harm to TK. With respect to these posts, during his closing argument, Mr. Krueger modified the Crown's position somewhat and he submitted that even considering these three TK Posts alone, that these posts could result in a finding of guilt of intimidation of a justice participant.

[6] I will refer to the argument made in summary and my conclusion, as it will become relevant to sentencing. Mr. Krueger's argument on the TK Posts was that although they did not contain a threat of harm, by having his identity as an undercover police officer 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.

[7] I dealt with this argument in paras. 133 to 137 of my Judgment. I considered Mr. Taraniuk’s argument 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 was no evidence before me to suggest that Mr. Blackman would think that TK would be in danger if his true identity was revealed.

[8] In coming to my conclusion on this issue I noted that s. 431.1(1) of the Criminal Code 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 clearly could include his performance as an undercover officer. I referred to the fact that the prior wording of the section as set out in R. v. Armstrong, 2012 BCCA 248, leave to appeal refused [2012], 452 N.R. 400n (S.C.C.) 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 accordingly there is no longer a requirement that the conduct be violent or threaten violence.

[9] With the removal of the requirement of violent conduct in the section, I came to the conclusion, that in all of the circumstances, considering the TK Posts alone, that the Crown had 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. I found this to be the case even if TK did not fear for his personal safety as a result of his true identity being revealed. On that basis, I also found that by posting the TK Posts the Crown had proven that Mr. Blackman was guilty of intimidation of a justice participant.

Positions of Counsel

[10] The Crown’s position is that a fit sentence is two-and-one-half years, relying on R. v. Hopwood, 2020 ONCA 608, 152 O.R. (3d) 643 (C.A.) and that given his time in custody, Mr. Blackman has served his time. The Defence’s position is that considering the mitigating circumstances, a sentence of two years plus one day would be appropriate and also in line with the guidance in Hopwood. Mr. Taraniuk also relies on R. v. Kienapple (1974), 1974 14 (SCC), 15 C.C.C. (2d) 524 (SCC) and argues that the conviction for uttering a threat to cause death should be stayed. There is no dispute that there should be a s. 109 firearms prohibition order for 10 years.

Legal Parameters

[11] The maximum sentence for intimidating a justice system participant is 14 years pursuant to s. 423.1(3) of the Criminal Code, which reflects the seriousness of this offence. The maximum sentence for threatening to cause death is five years pursuant to s. 264.1(2)(a) of the Criminal Code. There are no minimum sentences for either conviction.

Circumstances of the Offences

[12] I have no evidence from the undercover officer TK about how these offences impacted him, but I can draw certain reasonable inferences. The first and most obvious one is that as Mr. Krueger put it, with pictures of this officer posted on social media he was “burned” as an undercover officer, as it was now known in the public domain that he was an undercover officer. That meant not only the loss of his skill as such in serious criminal investigations where undercover officers are needed, but it also means that at least for the foreseeable future TK will not be able to work as an undercover officer.

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

The Circumstances of Mr. Blackman

[14] Mr. Taraniuk provided a great deal of background information about Mr. Blackman and two character letters of support. Mr. Blackman is now 44 years old. He has two children, a 10-year-old son and an 18-year-old daughter. He lost his father recently and is estranged from his mother and the rest of his family, as his mother abandoned him when he was born and when he was reunited with her, she was abusive both physically and verbally and preferred his half-brother to him.

[15] Mr. Blackman has had steady employment in various fields since he was 19 and at the time of his arrest, he had owned two different businesses, one a barber shop and the other a landscaping business. After he was acquitted and released from custody he went back to work as a barber at D'Empress. His character references are strong and describe a man who is an upstanding member of the Weston community and mentors young men in that community and supports them by buying school supplies and assistance in sports, things he was denied as a child.

[16] Mr. Taraniuk made some submissions speculating as to why Mr. Blackman committed these offences. All I can conclude is that they are very out of character from the person I now understand Mr. Blackman to be. That said, when he made a brief statement to me after counsel finished their sentencing submissions, he said that he was not perfect and had made a mistake that he did not feel he should be punished for. I think that perhaps Mr. Blackman still does not understand the seriousness of what he did. While I appreciate he was upset about being charged for offences he did not commit, his method of showing his displeasure cannot be condoned by this Court.

Determination of a Fit Sentence

[17] I turn then to what is a fit sentence in this case.

[18] There are a number of mitigating circumstances that Mr. Taraniuk explained in detail in his submissions. Mr. Blackman has no criminal record and as I have stated, he was an upstanding member of the Weston community. There is no reason to believe that he will ever commit a criminal offence again in the future. Specific deterrence is therefore not a concern.

[19] However, the sentence I impose must reflect the gravity of the offences and meet the goals of denunciation and general deterrence, even though in practical terms this sentence will have no impact on Mr. Blackman, as even if I accept the Crown’s position, he has served his time.

[20] In Hopwood, the defendant was convicted of attempting to pass a note to a co-accused, T.M., who was being held in a unit neighbouring the defendant's unit. T.M was scheduled to testify in the near future against the defendant at the trial related to a home invasion, as well as another incident near Toronto. The defendant's trial ended up not going ahead at that time. In his note, the defendant asked T.M. to change his anticipated testimony to reflect a position more favourable to the defendant. In effect, the defendant asked T.M. to lie for him. Although these facts are different from the case at bar, they do share one important similarity and that is an attempt to intimidate someone who was going to be a witness at the defendant’s criminal trial, or in this case at Mr. Blackman’s preliminary inquiry.

[21] On the attempt to obstruct justice count, the trial judge in Hopwood imposed a sentence of six months consecutive to the sentence for the home invasion conviction, which on appeal the court found to be demonstrably unfit and imposed a sentence of two-and-one-half years.

[22] Nordheimer J.A., speaking for the court, stated, at paras. 22 - 26:

[22] I begin with the principle that efforts by accused persons (whether directly or through others) to interfere with witnesses strike at the very heart of our justice system. There are already very serious concerns regarding the willingness of people, who observe crimes, to come forward and offer themselves as witnesses. Concerns around the "code of silence", and possible repercussions from being considered a "rat" or a "snitch", often lead persons to remain silent when they ought to be coming forward and assisting the authorities to properly investigate and prosecute criminal activities.

[23] Against that backdrop, interference with persons who are prepared to be witnesses only serves to exacerbate the problem. It must be clear to all accused persons that attempting to interfere in any way with a witness represents conduct that will not be tolerated. In that regard, I respectfully adopt what the British Columbia Court of Appeal said in R. v. Hall, [2001] B.C.J. No. 560, 2001 BCCA 74, per Saunders J.A., at para. 12:

Obstruction of justice or attempting to obstruct justice strikes at our system of a lawful society. The message must be clear that this type of interference with the community system for handling criminal offences will not be tolerated. It is for this reason that the courts must act firmly to express society's disapproval and denunciation of such conduct.

[24] While there may be other conduct that would constitute an attempt to obstruct justice that would warrant a minor sentence of the type that was imposed here, attempting to interfere with a witness does not fall into that category. Indeed, I would say that, as a general proposition, attempting to interfere with a witness should normally attract a penitentiary term of imprisonment. I find support for that position in the fact that penitentiary terms of imprisonment are often imposed for persons who refuse to testify: R. v. Yegin, [2010] O.J. No. 1266, 2010 ONCA 238. If a person's personal choice not to give evidence can attract such sentences, then it seems to me that a person's choice to interfere with another person's right to testify should draw, at least, equal condemnation. In this case, therefore, the sentence sought by the Crown of two-and-one-half years was entirely appropriate.

[25] On that latter point, I note that this court upheld a two-and-one-half year sentence for obstruction of justice in R. v. Williams, [2016] O.J. No. 6633, 2016 ONCA 937. That case was provided to the sentencing judge. The sentencing judge attempted to locate the trial judge's reasons for sentence, but he was unable to. This inability then led the sentencing judge [page650] to conclude [at para. 34] that "the appellate ruling in Williams is of no use to me in sentencing" the respondent.

[26] With respect, it was not open to the sentencing judge to dismiss this court's decision in Williams in that fashion. While the particulars underlying the sentence may not have been available to the sentencing judge, he nonetheless had a decision of this court suggesting that the sentence being sought by the Crown with respect to the respondent was clearly one that was open to him. He also had this court's view of the seriousness of these types of offences. He committed an error in principle by failing to take that decision into account in arriving at the sentence. [Emphasis added]

[23] I appreciate that in Hopwood, the witness was a witness that might already be reluctant to testify and that is not this case given TK is a police officer. I also appreciate that the sentence imposed of two-and-one-half years is a guide and that I must consider it as such in determining a fit sentence, but as Nordheimer J.A. stated, there may be circumstances that warrant a sentence of less than two-and-one-half years. In my view that is not this case. Mr. Blackman had time to think about what he was doing; this was not a spur of the moment decision. He asked for a picture of TK and posted the picture once with text uttering a threat and the second image was just text elaborating on that threat. He then deleted those images at some point, presumably realizing that they could get him into trouble. Had I only found Mr. Blackman responsible for posting pictures of TK and revealing that he was an undercover officer; the TK Posts, that might have warranted a lesser sentence but posting both images and making the threats that he did in the two images, in my view warrants a sentence of two-and-one-half years.

[24] There is no dispute that Mr. Blackman is entitled to a Summers credit of 1.5 days to every day served pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. He had been in custody from April 3, 2019 to March 4, 2021, a period of 23 months resulting in a credit of about 34.5 months.

[25] Mr. Taraniuk also submitted that a Duncan credit based on R. v. Duncan, 2016 ONCA 754, would be appropriate in this case and provided evidence that there had been 282 days of full or partial lockdowns while Mr. Blackman was incarcerated at the Toronto South Detention Centre (“TSDC”). He also pointed out that this was in part during the Covid pandemic. I have no evidence from Mr. Blackman, however, as to how this impacted him.

[26] Mr. Taraniuk referred to several cases that speak to the deplorable conditions at the TSDC in support of his position for an enhanced Duncan credit, including R. v. Persad, 2020 ONSC 188, a decision of Shrek J. and R. v. Clarke, 2020 ONSC 3878, a decision of Kelly J. In those cases the courts quantified an additional credit that was applied as an enhanced credit.

[27] I pointed out to counsel that these cases predate the decision of the Court of Appeal in R. v. Marshall, 2021 ONCA 344 where, at para. 50, Doherty J.A. pointed out that the Summers credit “already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody” and that the purpose of the Duncan credit is to address “exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody.” I advised counsel that I considered Marshall in my decision R. v. Lira, 2021 ONSC 8294, where, at para. 131 I concluded that I should consider any Duncan credit as a mitigating factor in determining sentence, and that calculation of a specific number of months is discouraged and accordingly decided not to specify an exact number of days of credit for the conditions at the TSDC.

[28] Counsel did not revisit this in their submissions presumably because even with an enhanced Duncan credit, Mr. Blackman would still be in a time-served position. However, it occurred to me while I was deliberating that if my interpretation of Marshall is correct and the conditions at the TSDC are to be considered as a mitigating circumstance, they could result in reducing the two-and-one-half years suggested as an appropriate sentence in Hopwood to something less than that.

[29] In the circumstances I decided not to have counsel address this further before making my decision. Although I appreciate that evidence from the defendant is not strictly required, I have no evidence that he was not able to access courses, was particularly vulnerable to Covid or any adverse impact of that nature to justify any significant mitigation of what is otherwise a fit sentence.

[30] Accordingly for these reasons I find that on Count #1, intimidation of a justice system participant, a fit sentence is two-and-one-half years. Similarly, I find that a fit sentence for Count #2, uttering a threat to cause death or bodily harm to TK, is two-and-one-half years to run concurrent to his sentence on Count #1.

[31] That leaves the final question of whether the conviction on Count 2 should be stayed as a result of Kienapple. I find that the Kienapple principle does not apply as the elements that make up Counts #1 and #2 are different, in that as I have found, Mr. Blackman was guilty of intimidating TK by posting the TK Posts, even though those posts did not contain threats. Of course, an essential element of Count #2, the utter threat charge is that there be a threat to cause death or bodily harm.

Disposition

[32] Mr. Blackman would you please stand.

[33] For the reasons I have given, on Count #1, 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 I sentence you to two-and-one-half years.

[34] On Count #2, uttering a threat to cause death or bodily harm to TK, contrary to s. 264.1(1)(a) of the Criminal Code I sentence you to two-and-one-half years to run concurrent to your sentence on Count #1.

[35] Given you are entitled to a pre-sentence Summers credit of 34.5 month, you have no more time to serve. The Indictment will note both the sentence imposed on each count and that you are in a time-served position.

[36] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code for ten years.

“Spies J.”

N.J. Spies J.

Written Reasons Released: June 20, 2022

COURT FILE NO.: CR-21-50000184-0000

DATE: 20220613

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SHAUN BLACKMAN

REASONS for sentence

SPIES J.

Orally: June 13, 2022

Written Reasons Released: June 20, 2022

R. v. Blackman, 2022 ONSC 3649

Case Summary

Overview

Circumstances of the Offences

Positions of Counsel

Legal Parameters

Circumstances of the Offences

The Circumstances of Mr. Blackman

Determination of a Fit Sentence

Disposition

Counsel

Parties

Areas of Law

Fact Patterns

Issues