



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Matte, 2012
    ONCA 504

DATE:  20120719

DOCKET: C53669

Juriansz, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Corey Matte

Appellant

Fergus J. (Chip) OConnor, for the appellant

Holly Loubert, for the respondent

Heard: May 30, 2012

On appeal from the conviction entered by Justice Rommel
    G. Masse of the Ontario Court of Justice on January 13, 2011, and from the
    sentence imposed by Justice Masse on February 4, 2011.

Watt J.A.:

[1]

The appellant, Corey Matte, is long-term offender (LTO). Contrary to a
    term of his long-term supervision order (LTSO), he took a pill held out by a
    fellow offender to be Dilaudid.  A judge convicted Matte of breaching his LTSO
    and sentenced him to nearly a year in jail in addition to the time he had
    already spent in custody awaiting trial.

[2]

Matte appeals both his conviction and sentence. He says that the
    conviction is unreasonable because the Crown did not prove that the pill he
    admitted taking was Dilaudid. But even if he were properly convicted, he
    contends that the sentence imposed was out of proportion to the offence he
    committed.

[3]

These reasons explain why I disagree with the appellant and would
    dismiss his appeal against conviction and sentence.

the conviction appeal

[4]

The evidence adduced at trial was brief and uncomplicated.

The Background

[5]

In early 2010, the appellant lived under the supervision of his parole
    officer at the Portsmouth Community Correctional Centre in accordance with the
    terms of his LTSO. The LTSO required the appellant to abstain from the use of
    drugs, other than those prescribed by a doctor and over-the-counter drugs taken
    as directed by the manufacturer.

[6]

To ensure the appellants compliance with this prohibition on drug use,
    his parole supervisor was authorized to make random demands for urine samples
    for analysis. The appellant was required to comply with such demands.

The Demand

[7]

Around January 19, 2010, the appellants parole supervisor, concerned
    about possible drug use, issued a demand for a urine sample for analysis. The
    appellant attempted to avoid providing the sample. When questioned by his
    parole supervisor, the appellant, who worked part-time as a fitness instructor,
    explained that he was taking creatine, a body-building supplement. The appellant
    expressed concern that the presence of creatine might interfere with the
    urinanalysis.

[8]

When his supervisor pressed further, the appellant said that the night
    before the demand was made, two other residents at Portsmouth had pressured him
    to take an orange or red pill. The appellant, a person with a lengthy history
    of drug addiction took the pill, which he had been told was Dilaudid. In the
    same conversation, the appellant admitted to his parole supervisor that he had
    a drug problem and needed to participate in a residential treatment program.

The Test Results

[9]

About a week later, the urinanalysis results came back. Neither Dilaudid
    nor creatine was detected. The parole supervisor suspected that someone elses
    urine had been substituted for testing.

The Case for the Crown

[10]

The
    case for the Crown consisted of the appellants admission to his parole
    supervisor that he had taken a 2 milligram pill offered to him by another
    offender as Dilaudid. The pill was orange or red in colour.

The Arguments on Appeal

[11]

For
    the appellant, Mr. OConnor reinvigorates the argument advanced, but rejected,
    at trial. He says that the conviction is unreasonable in the absence of proof,
    by certificate of analysis or otherwise, that the pill the appellant took was in
    fact Dilaudid. The trial judge relied on the appellants admission to carry the
    full burden assigned to the Crown. It was an error to do so because the
    admission was based on hearsay unconfirmed by other evidence. Further, the
    trial judge reversed the onus of proof, essentially requiring the appellant to
    establish that the pill was not Dilaudid.

[12]

For
    the respondent, Ms. Loubert says that the finding of guilt was reasonable:  it
    was a conclusion that a reasonable trier of fact, properly instructed and
    acting judicially, could have rendered.

[13]

Ms.
    Loubert says that the existence of a drug may be proven by direct or
    circumstantial evidence. The manner of proof includes, but is not limited to, a
    certificate or other proof of the results of analysis. As a matter of law and
    in the circumstances of this case, the trial judge could rely on the
    appellants admission, which accepted or reflected his belief in the truth of
    the statement of another about the nature of the pill. The conclusion of guilt
    in this case was based on the evidence as a whole untainted by any shift or
    reversal of the onus of proof.

The Governing Principles

[14]

Several
    basic principles are at work in connection with this ground of appeal.

[15]

First,
    the standard to be applied in determining whether a finding of guilt is unreasonable
    or cannot be supported by the evidence is whether the verdict is one that a properly
    instructed jury, acting judicially, could reasonably have rendered:
R. v.
    Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36;
R. v. Yebes
,
    [1987] 2 S.C.R. 168, at p. 185; and
Corbett v. The Queen
, [1975] 2
    S.C.R. 275, at p. 282.

[16]

The
    test or standard to be applied in determining whether a finding of guilt is
    reasonable includes both objective and subjective assessments. The reviewing
    court must determine what verdict a reasonable jury, properly instructed, could
    judicially have reached. In doing so, the court must review, analyze, and
    within the limits of appellate disadvantage, weigh the evidence:
Biniaris
,
    at para. 36.

[17]

Second,
    submissions that allege a trial judge misapprehended the evidence may refer to
    a failure to consider evidence relevant to a material issue, a mistake about
    the substance of the evidence, or a failure to give proper effect to an item or
    items of evidence:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at
    p. 538. A finding that a trial judge misapprehended the evidence may become the
    centerpiece of an argument that the verdict was unreasonable:
Morrissey
,
    at p. 540. It seems to logically follow that a failure to give proper
    effect to an item of evidence that plays an essential part in the reasoning
    process leading to a finding of guilt yields a conviction that is not based
    exclusively on the evidence, and, thus, constitutes a miscarriage of justice:
Morrissey
,
    at p. 541.

[18]

Third,
    as with other issues of fact, the Crown may prove the nature or character of a
    substance by circumstantial evidence. Proof by introduction of a certificate of
    analysis is one, but not the exclusive, method of proof:
R. v. Labine
(1975),
    23 C.C.C. (2d) 567 (Ont. C.A.), at pp. 570-571. In each case it is incumbent on
    the trial judge to consider the circumstantial evidence in its entirety and to
    assess its ability to satisfy the Crowns obligation to prove the unlawful
    character of the substance beyond a reasonable doubt.

[19]

Fourth,
    a party making an admission may adopt a hearsay statement as his or her own for
    the purpose of admitting the facts disclosed in that statement:
R. v. Streu
,
    [1989] 1 S.C.R. 1521, at p. 1529. Admissions are not subject to the rules for
    testimonial qualifications of personal knowledge:
R. v. Schmidt
,
    [1948] S.C.R. 333, at p. 336;
Streu
, at p. 1528; and
Wigmore on
    Evidence, vol. 4 (Chadbourn Rev.)
, § 1053, at p. 16.

[20]

Finally,
    we exclude hearsay, in part at least, because we consider extra-judicial
    statements tendered without affording an opportunity to the party against whom
    it is adduced to cross-examine the declarant inherently untrustworthy. But this
    rationale is sapped of much of its vigour when the party against whom the
    statement is tendered chooses him or herself to rely on the hearsay statement
    in making the admission:
Streu
, at p. 1529.  Where a party indicates a
    belief in, or acceptance of, a hearsay statement of another, such a belief or
    acceptance is some evidence of the truth of the contents of the hearsay
    statement:
Streu
, at p. 1530;
Wigmore
, at § 1053, p. 16.

The Principles Applied

[21]

I
    would not give effect to this ground of appeal.

[22]

In
    this case, the appellant told his parole supervisor that he had taken an orange
    or red pill provided to him by a fellow offender at Portsmouth Community
    Correctional Centre and described by the supplier as Dilaudid. The appellant
    made this admission in the context of a demand by his supervisor that he
    provide a urine sample for drug analysis. The appellant, an experienced
    consumer of illicit drugs, admitted that he needed help for his ongoing
    addiction problems and expressed concern about the results of the urinanalysis.

[23]

In
    accordance with the principles in
Streu
, set out above, it was open to
    the trial judge on the evidence adduced in this case to conclude that the
    appellants admission reflected his belief in, or acceptance of, the truth of
    his suppliers statement that the pill was Dilaudid. In the result, there was
    evidence that the appellant took Dilaudid. The weight to be assigned to this
    evidence was for the trial judge to determine.

[24]

A
    careful examination of the trial judges reasons, considered as a whole, puts
    paid to any submission that he misapprehended the substance or effect of
    evidence of the appellants admission, or for that matter, any other evidence
    adduced at trial, or that he shifted the onus of proof to the appellant to
    disprove the unlawful character of the pill he admittedly took.

the sentence appeal

[25]

The
    appellant also appeals the sentence imposed by the trial judge, a net sentence
    of 350 days imprisonment.  The trial judge considered this sentence to be the functional
    equivalent of a sentence of two years when considered alongside the credit he
    awarded for pre-sentence custody (380 days).

The Reasons for Sentence

[26]

In
    his lengthy reasons for sentence, the trial judge noted the significant role of
    the appellants acknowledged drug addiction in his personal life and
    relationships, and in the commission of the offences of which he has been
    convicted. Prevalent themes in the appellants lengthy history of violent
    recidivism include emotional instability exacerbated by substance abuse. The
    appellants relationships require close supervision because he poses a high
    risk of domestic violence and a very high risk of violent or sexual recidivism.

[27]

The
    trial judge also expressed concern about the appellants response to
    conditional release and community supervision, as well as his response to
    recommended programming. The appellant has been deceptive in reporting his
    community activities, tending to deny or minimize his bad behaviour. His
    compliance with the LTSO has been less than satisfactory, and with community
    supervision, superficial. The appellant fails to recognize the importance of
    his LTSO conditions to the management of the risk he presents in the community.
    He is an untreated violent offender with psychopathic tendencies.

[28]

In
    his discussion of the applicable objectives and principles of sentencing, the
    trial judge characterized the protection of the public as the whole purpose
    of the LTO provisions. He said:

Persons who are subject to long-term supervision are deemed to
    be very likely to reoffend unless restrictions are placed on them and unless
    they follow these restrictions. They must be made to know that they are on a
    very short leash and that society will not tolerate any breach, no matter how
    insignificant and that any breach will result in the offender being separated
    from society for the protection of society.

[29]

The
    sentencing judge considered the paramount sentencing objective was protection
    of the public achieved by separating the appellant from the community thereby
    reducing the palpable risk of violent recidivism. He acknowledged the relevance
    of the principle of proportionality, the possibility of rehabilitation and the
    continuing importance of specific deterrence.

The Positions of the Parties

[30]

For
    the appellant, Mr. OConnor says that the trial judge erred in failing to
    appreciate that the objectives and principles of sentencing, provided for in
    Part XXIII of the
Code
, apply to sentencing proceedings for breaches
    of LTSOs. The trial judge failed to give effect to the fundamental principle of
    sentencing - proportionality.  Instead, the trial judge considered the
    appellants LTO status dispositive. The sentence imposed was disproportionate
    to the gravity of the offence and the appellants moral responsibility. It was
    driven by deterrence and denunciation, took no account of rehabilitation, and
    ignored proportionality.

[31]

For
    the respondent, Ms. Loubert acknowledges that the trial judge erred in
    principle in assigning prominence to the protection of the public and only
    minimal weight to rehabilitation. She concedes that, as a result of the
    decision in
R. v. Ipeelee
, 2012 SCC 13,
280 C.C.C.
    (3d) 265,
which was rendered after the imposition of sentence, the
    deference that would normally be accorded to the sentencing decision falls away
    and leaves us to consider the matter afresh.

[32]

Ms.
    Loubert submits that in the end, deference or no deference, the sentence imposed
    was fit. The appellant has a substantial record for offences of violence and
    represents a significant risk of violent recidivism. The risks of violence and
    recidivism are enhanced when the appellant uses drugs. The breach here involved
    drug consumption. The prohibition breached was inserted in the LTSO to
    eliminate drug consumption as a risk-enhancing factor; thus, what appears at
    first a minor transgression is anything but.

[33]

Ms.
    Loubert underscores the appellants dismal performance on any form of conditional
    release, his established history of non-compliance, his intransigent attitude
    towards supervision and counselling, and his thinly-veneered response to
    community supervision.

The Governing Principles

[34]

In
Ipeelee,
a decision not available to the sentencing judge, the Supreme
    Court of Canada examined the principles that govern sentencing of offenders for
    breaches of LTSOs. Although
Ipeelee
dealt specifically with Aboriginal
    offenders convicted of breaches of LTSOs, several principles of fundamental importance
    to all LTOs emerge.

[35]

First,
    long-term supervision, as a form of conditional release, has two specific
    objectives:

i.        protecting
    the public from the risk of re-offence; and

ii.       rehabilitating
    the LTO and reintegrating him or her into the         community.

Ipeelee
, at para. 48.

[36]

Second,
    it is wrong to say that the main consideration in sentencing an LTO is the
    protection of the public and that significant sentences must be imposed even
    for slight breaches of LTSOs:
Ipeelee
, at paras. 48-49.

[37]

Third,
    the severity of a breach of an LTSO depends on all the circumstances,
    including, but not only:

i.        the
    circumstances of the breach;

ii.       the
    nature of the condition breached; and

iii.      the
    relationship between the condition breached and the   management of offenders
    risk of re-offence.

Ipeelee
, at paras. 52 and 55.

[38]

Fourth,
    rehabilitation will not always be the foremost consideration when determining a
    fit sentence for breach of an LTSO. The duty of the sentencing judge is to
    apply all the principles mandated by ss. 718.1 and 718.2 of the
Criminal
    Code
in order to devise a sentence that furthers the overall objectives of
    sentencing. The relative weight to assign to each sentencing principle or
    objective varies with the circumstances of the particular breach. But in the
    end, the sentence imposed must be faithful to the fundamental principle of
    proportionality: it must be proportionate not only to the gravity of the
    offence, but also to the degree of the offenders responsibility:
Ipeelee
,
    at para. 51.

The Principles Applied

[39]

Despite
    what both parties agree was an error in principle, I would not interfere with
    the sentence imposed by the trial judge.

[40]

Under
Ipeelee
, our task is to ensure that the sentence imposed is faithful
    to the fundamental principle of proportionality in s. 718.1 of the
Criminal
    Code
:
Ipeelee
, at para. 39. Compliance with our mandate requires
    a consideration of all the circumstances to ensure that the sentence imposed is
    proportional to both the gravity of the offence and the degree of
    responsibility of the offender:
Ipeelee
, at para. 39.

[41]

At
    first light, the appellants offence seems minor, almost trivial. He took a
    tiny pill, 2 milligrams of Dilaudid. He wasnt supposed to take pills unless
    they were prescribed by a doctor, or available over-the-counter and taken in
    accordance with the manufacturers directions.

[42]

The
    drug prohibition term of the LTSO was included because the appellant has a
    lengthy history of drug abuse. His lengthy history of drug abuse is
    inextricably interwoven with his equally lengthy history of crime, most of it
    violent offences against others. Management of the risk of re-offence, in this
    case the risk of violent recidivism, is linked to abstinence from drugs. Risk
    assessments have consistently identified drug abuse as a significant factor in
    the appellants uninterrupted string of violent crime. And so it is that taking
    that tiny pill is more serious than, shorn of context, it first appears.

[43]

An
    assessment of the degree of the appellants responsibility for the offence
    begins with an acknowledgement that he was the sole principal, not some
    secondary party. The offence involved non-compliance with a regulated scheme of
    conditional release. The appellant has a rich and lengthy history of
    non-compliance. Said in another way, the appellant does not do compliance
    well.  He simply doesnt get it.

[44]

This
    conviction is the appellants third for breach of his LTSO. He has violated the
    terms of his statutory release four times. He has a robust record of
    institutional offences. When granted release into the community at various
    times in 2006, 2007 and 2009, his conduct resulted in parole suspensions after
    only a few days or, at most, four months from the date of his release.

[45]

The
    appellants response to long-term supervision has been tepid, characterized by
    minimal effort, negligible motivation and spotty and superficial participation.

[46]

Of
    greater concern in the assessment of responsibility, is the appellants
    attitude towards rehabilitative programs. Despite many chances to participate
    in programs for violent offenders and drug abusers, the appellants history is
    littered with failures to attend, suspensions for inappropriate behaviour, and
    superficial responses. His attitude towards authority is consistently negative
    and he disagrees with the conditions of his release.

[47]

The
    trial judge was wrong in failing to recognize that rehabilitation was an
    appropriate sentencing objective to consider in determining a fit sentence for
    breach of the LTSO. But, as
Ipeelee
points out, rehabilitation is not
    always the foremost consideration in sentencing for LTSO breaches:
Ipeelee
,
    at para. 51.

[48]

Rehabilitation
    requires effort on an offenders part. It cannot be force fed to the unwilling.
    It ill lies in the mouth of the unwilling to complain that rehabilitation
    should have been accorded a prominent place in the sentencing decision,
    particularly where, as here, the offender complaining has been unswerving in
    his resistance to rehabilitative efforts for several years.

[49]

In
    my view, despite the conceded error, the sentence imposed was proportionate to
    the gravity of the offence and the degree of the appellants responsibility.

CONCLUSION

[50]

For
    these reasons, I would dismiss the appeal from conviction and grant leave, but
    dismiss the appeal from sentence.

Released: July 19, 2012  RGJ                           David
    Watt J.A.

I
    agree R.G. Juriansz J.A.

I agree Alexandra Hoy J.A.


