ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:

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HER MAJESTY THE QUEEN
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Respondent )
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- and )
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DWAYNE WILLIAM BOISSONEAU
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Appellant )
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Ms. Celia Jutras, for the respondent, Crown

Mr. Michael Hargadon, for the appellant,
Dwayne Boissoneau

HEARD: January 12, 2016,
at Thunder Bay, Ontario

Madam Justice H.M. Pierce
Reasons on Appeal
Introduction
[1]

The appellant, Dwayne William Boissoneau, pleaded guilty to theft under $5,000,

contrary to s. 334(b) of the Criminal Code, fraud under $5,000, contrary to s. 380 of the Code
and threatening to cause death or bodily harm, contrary to s. 264.1 of the Code. He takes no
issue with the sentences imposed for theft and fraud. However, he appeals from custodial portion
of the sentence imposed by Mr. Justice F. Valente with respect to the charge of uttering threats.
[2]

The sentence imposed for threatening was 365 days in prison less credit for 166 days of

pre-sentence custody served, credited at a rate of 1.5 days for each day, resulting in a credit of

2016 ONSC 820 (CanLII)

CITATION: Her Majesty the Queen v. Boissoneau, 2016 ONSC 820
COURT FILE NO.: CR-15-0031
DATE: 2016-02-01

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

-2-------------------------------------------------------------------------------------------------------------------250 days of pre-sentence custody served. In addition, Mr. Boissoneau was sentenced to 30 days
consecutive on the theft count and 30 days concurrent for fraud. The sentence included two

DNA. The appellant does not take issue with the propriety of the probation or ancillary orders.
[3]

Mr. Boissoneau has served his custodial sentence. Nevertheless, he submits that the

sentencing judge erred in principle in imposing a sentence of one year in prison for the charge of
threatening, based on the facts of the case, his background, including Gladue factors, the
principle of proportionality, and by considering factors that should not have been considered.
[4]

On a preliminary basis, the Crown argued that the appeal should be dismissed as moot,

because Mr. Boissoneau has served his sentence and there is no longer a dispute to be
adjudicated.
[5]

Counsel agree that case law with respect to the unique facts of this case is sparse. They

agree that Mr. Boissoneau is not a terrorist. However, the appellant submits that the court should
provide guidance on the quantum and range of sentence for aboriginal offenders engaged in
threatening in a “terrorism- like” context.
[6]

The principles for considering mootness are set out in Borowski v. Canada (Attorney

General) [1989] S.C.J. No. 14 (S.C.C.), paras. 31, 34, and 40. Hearing a Case that is moot is a
discretionary matter. Although there is no adversarial contest remaining between the parties, and
although hearing the appeal draws on scarce judicial resources, nevertheless, there is a public
interest in the court exercising its law-making function by entertaining this appeal. For that
reason, I exercise my discretion to hear the appeal.
Facts Underlying the Plea to Uttering Threats
[7]

The exchanges referred to below occurred via the social medium of Twitter.

2016 ONSC 820 (CanLII)

years’ probation, a ten year weapons prohibition and a requirement to submit a sample of his

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

-3-------------------------------------------------------------------------------------------------------------------[8]

On August 28, 2014, the appellant sent out two messages on his Twitter account. The

first message, “Death to America,” was addressed to two other Twitter addresses. The second

[9]

On October 19, 2014, an individual identified as Abu Turaab al-Kanadi replied, “And the

best outcome is for the righteous, 7128. Keep the brothers in your dua.”
[10]

Then, on October 24, 2014, the appellant responded to Turaab’s Tweet in these words:

“Hey brother, I’m ready to fight and support ISIS till death. I’m a Canadian and I’m sick of this
[sic] fake politics here.”
[11]

On October 28, 2014, a person named Kim sent the appellant a tweet, “Want a free

ticket?” The appellant replied to Kim on November 6, 2014, saying “I will fight to the death of
all this fake politics in US and Canada.” He also tweeted, “If I could afford it, I’d be gone by
now.” Later that day he wrote to Turaab, saying, “Canada and US will suffer wrath of IS.”
Below this tweet appeared the appellant’s tweet of October 13, 2014: “God willing, I will come
and fight the cause.”
[12]

On November 7, 2014, a twitter user identified as Abu Dujana tweeted to the appellant,

“Who wants to do something to some top kaffirs? We get addresses for you.”
[13]

The appellant responded to Dujana and another twitter user on November 10, 2014,

“Give me Canadian addresses. I will ensure something happens.” This utterance comprised the
threat with which Mr. Boissoneau was charged. Turaab and Dujana are considered to be Muslim
extremists and supporters of ISIS.
[14]

These exchanges associated with the appellant were detected by the RCMP Tactical

Internet Operational Support Unit in November, 2014. In a cautioned statement, the appellant
stated that he didn’t remember writing some of the tweets but acknowledged posting some
“stupid stuff” that he shouldn’t have. His statement concluded,
I don’t know what to say, like I know you guys are going to look through the
computers. There isn’t going to be – there won’t be much. I did have a Twitter

2016 ONSC 820 (CanLII)

message, sent to one of the two addressees, read “I kill infidels.”

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

account. I did say those things. I haven’t associated with anyone. I have never met a
terrorist in person. I wasn’t really that serious about going down there. I wasn’t that
serious. I was going through a rough time. I would test the system; I already know
people get caught. I wanted to see if CSIS and stuff was really real, actually real, like I
know they’re real but if they can actually detect stuff like that. I pretty much use only
Facebook. I got no terrorists on there. I do Google stuff like Canadians joining ISIS
and stuff. I’ve looked up the costs of plane tickets to go to Turkey; I have looked that
up. And that Kim girl. I don’t even think she supports ISIS because a lot of times on
her posts she seems kind of against that stuff.
[15]

The court also heard that the appellant’s sister gave police a statement about the

appellant. She advised that Mr. Boissoneau developed a romantic relationship with a woman
from Hungary and he had travelled to Europe on three occasions to see her. Ms. Boissoneau also
indicated that her brother was curious about terrorism but that she didn’t want him to go because
she feared he would be killed.
[16]

The Crown’s theory was that a threat was made to a class of individuals, citizens of the

United States and Canada, rather than to a specific individual. The Crown did not allege that the
appellant was an actual terrorist or that he took steps beyond the content of the tweet. However,
the Crown submitted that his actions could not be divorced from the context of terrorism globally
and in Canada. The plea was taken a few months after the shooting occurred on Parliament Hill.
The Crown argued that general deterrence and denunciation should be the primary sentencing
objectives for terrorism-related offences.
[17]

The defence conceded that Mr. Boissoneau intended the words to be taken seriously.

However, the defence submitted that the nature of the offence and the offender did not warrant
the length of sentence that the Crown was advocating.
[18]

The appellant’s criminal record was admitted. It began in 1999 and continued until 2011.

His Youth Court record contains four convictions for failing to comply with a disposition; one
conviction for breach of undertaking; three convictions for theft; three convictions for break and
enter; three convictions for mischief; and one conviction each for being unlawfully at large,
assault, and possession of stolen property.

2016 ONSC 820 (CanLII)

-4--------------------------------------------------------------------------------------------------------------------

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

-5-------------------------------------------------------------------------------------------------------------------[19]

His adult record consists of the following convictions: break and enter; three counts of

theft; three counts of breach of probation; four counts of mischief; one count of threatening;

to attend court; one count of failing to attend for identification and one assault conviction. Thus,
Mr.

Boissoneau’s

criminal

history

featured

property

and

nuisance-related

offences,

supplemented by compliance breaches. As his defence counsel on the plea submitted, the
sentences are at the lower end of the spectrum. His previous conviction for threatening attracted
a sentence of thirty days.
[20]

A pre-sentence report was filed at the sentencing hearing. At the time of the report, Mr.

Boissoneau was a First Nations man, aged thirty years. He was raised by his father who had been
exposed to residential school. Mr. Boissoneau’s relationship with his father was positive. The
same cannot be said of Mr. Boissoneau’s relationship with his mother. She is an alcoholic; his
relationship with her is strained.
[21]

As a toddler, the appellant he sustained multiple skull fractures when he fell downstairs.

Later he was diagnosed as suffering from Fetal Alcohol Spectrum Disorder. Undoubtedly the
FASD has led him to make bad decisions that bring him into conflict with the law.
[22]

The appellant’s difficulties with the law at age twelve led to his apprehension by the child

welfare authorities as his father found his behaviour unmanageable. He was in care for about two
years.
[23]

His legal difficulties coincided with his experimentation with marijuana and alcohol.

During his teen years, he drank heavily. By twenty-three, he graduated to using opiates. His drug
habit was funded by criminal behaviour. He enrolled in the methadone program for a few years
at the age of twenty-five but withdrew in order to travel with his girlfriend. He advises that he
quit using drugs in 2014, but admits that he continues to use alcohol. His family identifies his
alcohol use as problematic. He has not had any residential treatment.
[24]

Mr. Boissoneau also had difficulty in school. He was assessed as functioning in the low

average range. Because of his history of incarceration, he did not attend high school and has no

2016 ONSC 820 (CanLII)

three counts of breach of recognizance; two counts of breach of undertaking; one count of failing

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

-6-------------------------------------------------------------------------------------------------------------------work history. He is supported by public disability benefits. The Crown described him as

[25]

The pre-sentence report (p. 8) observed that the appellant:
…did not appear to minimise his behaviour though was not always able to fully to
fully explain his actions. He gives the impression of being easily led and
susceptible to substance abuse.

[26]

Mr. McCartney, his defence counsel on the sentencing submitted that there was no

evidence that the European travel he undertook was related to terrorism pursuits. As well, he
indicated that his relationship with the woman from Hungary had ended. He characterized Mr.
Boissoneau as unsophisticated in his understanding of Islamic extremism. The appellant’s father
told the police that his son often says things to “seem macho.”
[27]

Prior to being sentenced, the appellant apologized.

[28]

The Crown submitted that denunciation and deterrence should be emphasized. It sought a

global sentence of 15 – 16 months for all three charges plus two years’ probation and ancillary
orders. The defence submitted that time served of four months (the equivalent of six months with
pre-sentence credits) plus one day would be a fit sentence. This defence submission was made on
March 19, 2015; in fact, sentence was reserved and not imposed until April 29, 2015, meaning
that the appellant’s time in pretrial custody then totalled 166 days. In sentencing the appellant,
the judge recognized the additional time served at credited him with the equivalent of 250 days
served.
Parameters for Sentence Appeals
[29]

Sentencing decisions are entitled to significant deference unless the sentencing judge has

made an error in principle, at which point, the deference ends. The Ontario Court of Appeal
described such errors in R. v. Rezaie (1996), 112 C.C.C. (3d) 97, at para. 20:

2016 ONSC 820 (CanLII)

impulsive as a result of the brain injury, lack of formal education and FASD.

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

…an appellate court may interfere with a trial judge’s sentencing discretion in only
two kinds of cases. First, an appellate court may interfere if the sentencing judge
commits an “error in principle”. Error in principle is a familiar basis for reviewing
the exercise of judicial discretion. It connotes, at least, failing to take into account a
relevant factor, taking into account an irrelevant factor, failing to give sufficient
weight to relevant factors, overemphasizing relevant factors and, more generally, it
includes an error of law. If the sentencing judge commits an error in principle, the
sentence imposed is no longer entitled to deference and an appellate court may
impose the sentence it thinks fit. [Citations omitted].
[30]

The second type of case in which an appellate court may interfere is if the sentence is

outside an “acceptable range”: Rezaie, para. 21. The notion of an “acceptable range” for
sentences encompasses sentences that are too severe or not severe enough.
Did the Sentencing Judge Err in Principle?
[31]

There is a dearth of sentencing cases dealing with individuals who commit offences of a

“terrorism-like” nature. In effect, these are nuisance offences that take up the time and attention
of the authorities. They arise out of bad judgment but the offenders are at a low level in posing a
risk to the public.
[32]

By way of contrast to Mr. Boissoneau’s misconduct, the appellant cited R. v. Lapoleon,

[2008] B.C.J. No. 484 (British Columbia Provincial Court). Unfortunately, this case was not
presented to the sentencing judge for its persuasive value.
[33]

Mr. Lapoleon was convicted after trial of engaging in a hoax regarding terrorist activity

contrary to s. 83.231(1) of the Criminal Code; and public mischief by causing police to
investigate to determine whether the hoax constituted a real threat, contrary to s. 140(1)(a) of the
Code.
[34]

The facts found at trial in 2007 are that Mr. Lapoleon sent a fax to the national security

unit of the RCMP alleging that an Islamic terrorist cell operating in Vancouver was plotting to
blow up the Danish and American consulates. The communication set out the names and
addresses of three alleged terrorists involved. It also referred to explosives being kept at a certain
location.

2016 ONSC 820 (CanLII)

-7--------------------------------------------------------------------------------------------------------------------

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

-8-------------------------------------------------------------------------------------------------------------------[35]

While the police did not assess the risk as high, nevertheless, they kept the three

individuals under surveillance. The two consulates were advised of the threat and police

at the location identified in the communication.
[36]

Simultaneously, a grand jury subpoena was obtained in New York City to seize computer

records from the server believed to have directed the fax transmission through various computer
re-routes. RCMP and Vancouver police were called in on the case. Investigation eventually
linked Mr. Lapoleon’s fax to various computers used at internet cafes. He was placed under
surveillance, a plan which was complicated by the fact that Mr. Lapoleon had no fixed address.
Ultimately, he was arrested and charged. The three persons he identified in his fax were entirely
blameless; he simply didn’t like them.
[37]

Mr. Lapoleon was sentenced on the charge or perpetrating a terrorist hoax to six months

in custody plus time served of four and a half months (credited at nine months). He was
sentenced to four months consecutive on the mischief count. As well, a two year probation order
was imposed.
[38]

The court recognized that Mr. Lapoleon was an aboriginal man who was homeless. He

had a background of physical and sexual abuse, alcoholism and petty crime. In sentencing him,
the court took into account the significant investigative resources required to deal with the
matter, diverting police from legitimate terrorist threats. The court considered that Mr. Lapoleon
undertook significant planning to perpetuate the hoax and his actions took place in a serious
socio-political context. In summary, the sentence emphasized deterrence.
[39]

The Crown submits that Lapoleon is distinguishable in that the offender was convicted of

a different offence than threatening; in the alternative, the Crown argues that the sentence
imposed in this case was within the range established in Lapoleon.
[40]

In sentencing Mr. Boissoneau, the sentencing judge properly considered the sentencing

principles set out in the Criminal Code, including Mr. Boissoneau’s personal circumstances and

2016 ONSC 820 (CanLII)

protection was enhanced at both locations. As well, a canine search for explosives was conducted

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

-9-------------------------------------------------------------------------------------------------------------------Gladue factors. In his reasons, he pointed to the following four circumstances requiring a

(1) the period of time during which the offence was committed;
(2) that while the appellant “may well not have committed any specific terrorism
related offence,” the concept of terrorism informed the appellant’s utterances;
(3) by virtue of his plea and his counsel’s submissions, the appellant intended his
comments to be taken seriously; and
(4) the appellant’s utterances were made at a time of intense public sensitivity and
insecurity about the threat of terrorism, making his words more ominous.
[41]

The appellant contends that the sentencing judge erred when he referred to a period of

time over which the offence was committed as a factor calling for denunciation. The Crown
suggests this was not an error; the comment refers to the narrative read into the record that
provides the context for the utterance that gave rise to the charge. It also corresponds with the
wording on the information.
[42]

I agree that the sentencing judge was entitled to consider the context in which the

offending comment was made. Indeed, it was necessary in order to understand the degree of
blameworthiness attached to the utterance. However, the period of time over which the offence
took place is not an aggravating factor. Rather, considering that the offence took place in
communications made between August 28 and November 10, 2014 is a mischaracterization of
the admission made on the guilty plea that the last Twitter utterance gave rise to the offence.
[43]

The appellant concedes that the second factor, the backdrop of terrorism underpinning the

threat was aggravating. I agree with this submission. The sentencing judge was entitled to treat it
as an aggravating fact.
[44]

Counsel for the parties agree that the third factor listed by the judge, that the appellant

intended his comments to be taken seriously, is not an aggravating factor, but rather a necessary
element of the offence of threatening. It forms part of the mens rea of the offence and is
therefore a neutral factor. See: R. v. McRae, [2013] 3 S.C.R. 931 (S.C.C.), para. 23.

2016 ONSC 820 (CanLII)

denunciatory sentence:

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

- 10 -------------------------------------------------------------------------------------------------------------------[45]

Next, the appellant submits that the sentencing judge erred in considering that the

utterance was made at a time of intense public sensitivity about terrorism in order to impute the

terrorism-motivated shooting on Parliament Hill.
[46]

The Crown argues that the sentencing judge is entitled to take judicial notice of local

conditions when sentencing an offender, citing R. v. Lacasse, 2015 SCC 64, para. 90. In Lacasse,
the Supreme Court recognized that denunciation of conduct endemic to a local area was a
consideration for sentencing. The court stated:
Although the fact that a type of crime occurs frequently in a particular region is not
in itself an aggravating factor, there may be circumstances in which a judge might
nonetheless consider such a fact in balancing the various sentencing objectives,
including the need to denounce the unlawful conduct in question in that place and at
the same time to deter anyone else from doing the same thing. It goes without saying,
however, that the consideration of this factor must not lead to a sentence that is
demonstrably unfit.
[47]

In my view, in naming public sensitivity to terrorism as a ground for a denunciatory

sentence, there are three problems. The first is that there was no evidence that Mr. Boissoneau
was aware of the shooting on Parliament Hill or that his utterance was linked to these events. The
chain of his communications on Twitter preceded the shooting by several months. His counsel at
the sentencing, characterized Mr. Boissoneau’s conduct as “shooting his mouth off”. The presentence report described Mr. Boissoneau as an impulsive individual who had suffered from a
brain injury and FASD, such that he functioned in the low-average range. The report-writer
commented that the appellant “was not always able to fully explain his actions” and left her
“with the impression he does not fully appreciate the gravity of his actions in respect to the
offences before the Court.”
[48]

The second problem is that there is no suggestion that threats of terrorism are prevalent in

the Thunder Bay area, such that the sentencing judge ought to have emphasized denunciation. In
other words, there is no “local condition” inviting judicial notice in sentencing.

2016 ONSC 820 (CanLII)

appellant’s level of intent when there was no evidence that Mr. Boissoneau was aware of the

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

- 11 -------------------------------------------------------------------------------------------------------------------[49]

The third problem arises from the judge’s conclusion that Mr. Boissoneau’s threat was

more ominous in light of a distressed society. In fact, the evidence indicates that the appellant

terrorists anxious to recruit him and the police unit tasked with monitoring their conduct. Thus,
unlike in Lapoleon, there was no public distress occasioned by the appellant’s thoughtless
Twitter post.
[50]

The Crown contends that the sentence for threatening was proportionate to the gravity of

the offence and the culpability of the offender. Respectfully, I do not agree. In my view, the
sentence unduly emphasized denunciation and deterrence given the nature of the offence and the
circumstances of the offender. In short, the sentence imposed was outside the acceptable range.
In his submissions at the sentencing hearing, defence counsel commented,
…my view is that there’s never been a police state in history that hasn’t been started
with the law getting pushed around by public fear and news headlines, and we’re in that
situation now in respect to Islamic extremism.
[51]

His defence counsel also queried whether, had the offence taken place two years earlier,

when there was less alarm about radical extremism, would the sentence be more serious than the
four months he actually spent in prison? It is telling that Mr. Boissoneau’s previous sentence for
threatening was thirty days.
[52]

The case at bar is obviously distinguishable from Lapoleon, where international law

enforcement agents were involved, an extensive investigation was required, innocent people
were accused, and two consulates were put on alert. Here, the police investigation was limited.
Mr. Boissoneau did not conceal his identity. His threat was naïve and unsophisticated, in keeping
with his brain injury, his cognitive abilities and the Gladue factors. Mr. Boissoneau took no steps
to plan attacks in Canada and did not involve others in the threat. His threat did not alarm the
public. His real motivation was to obtain a plane ticket to visit his girlfriend in Europe. In these
circumstances, his culpability was limited.

2016 ONSC 820 (CanLII)

had a limited following on Twitter. His communication came only to the attention of a couple of

 R. v. Boissoneau
Court File No: CR-15-0031-AP

Reasons on Appeal
Pierce J.

- 12 -------------------------------------------------------------------------------------------------------------------[53]

In my view, the appellant is correct that the sentence should not have exceeded the time

served, which was four months in jail, having regard for the two other offences for which he was

[54]

The appeal is therefore allowed. The sentence of Mr. Justice Valente for the offence of

uttering threats is varied to four months in custody, which, on an enhanced basis of 1.5:1
constitutes six months in custody.

“Original signed by”
The Hon. Madam Justice H.M. Pierce

Released: February 1, 2016

2016 ONSC 820 (CanLII)

also sentenced. Mr. Boissoneau’s conduct was in the nature of a nuisance to law enforcement.

 ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -

DWAYNE WILLIAM BOISSONEAU
Appellant

REASONS ON APPEAL

Pierce J.

Released:

/cs

February 1, 2016

2016 ONSC 820 (CanLII)

CITATION: Her Majesty the Queen v. Boissoneau, 2016 ONSC 820
COURT FILE NO.: CR-15-0031
DATE: 2016-02-01