W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
CITATION: R. v. Matton, 2008 ONCA 845
DATE: 20081212
DOCKET: C43436
COURT OF APPEAL FOR ONTARIO
Cronk, Gillese and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Larry Matton
Appellant
Breese Davies and Gavin MacKenzie, for the appellant
Joanne Stuart, for the respondent
Heard: December 4, 2008
On appeal from the conviction entered on April 8, 2005 by Justice Robert A. Riopelle of the Superior Court of Justice, sitting with a jury.
By the Court:
[1] Following a five-day jury trial, the appellant was convicted of assault of his former common law spouse, attempt to obstruct justice and two counts of failure to comply with an undertaking. He was acquitted on charges of two other assaults, one of which was allegedly committed on the same victim and the other on their son. He was acquitted also of charges of threatening death in the course of the assault and extortion.
[2] The appellant was sentenced to seven days intermittent imprisonment for the assault, 30 days imprisonment concurrent plus 12 months probation for the conviction for attempt to obstruct justice, and fined $200 for the failure to comply convictions.
[3] He appeals against conviction.
BACKGROUND
[4] The complainant, D.D., and the appellant had been common law partners for seven years when, in 1995, L.R. moved in with them. Two years later, D.D. gave birth to the couple’s son, T. D.D. suffered from rheumatoid arthritis which worsened after she gave birth. Eventually, she was unable to care for T. and L.R. took over the majority of the childcare responsibilities. The appellant and L.R. began a romantic relationship. All three adults and T. lived together until December of 2001.
[5] D.D. testified that she and the appellant had an argument in December 2001. She said that the appellant pushed her from behind, slamming her body into the counter, knocking her head against a cabinet and shaking her. She tried to fend him off and hit him with a glass mug that was in her hand because she was washing dishes at the time of the assault.
[6] On December 29, 2001, D.D. left the home with T. and went to a crisis centre. The following day the appellant called the police complaining that D.D. had left with their son and that she had assaulted him with a mug. He declined to make a sworn statement in respect of the alleged assault and did not pursue the matter further.
[7] On January 3, 2002, the complainant gave a sworn statement to the police about the December 2001 assault and other allegations. Charges were then laid against the appellant. The day after that, the appellant married L.R.
[8] T. returned to live with the appellant. Although there was a condition that the appellant have no contact with the complainant, the complainant phoned the home regularly to speak to her son. She testified that the appellant would listen in on the calls. On the advice of his lawyers, the appellant bought T. a cell phone so that he (the appellant) could avoid phone calls from the complainant.
[9] The complainant testified that over time, the appellant convinced her to sign an affidavit recanting her allegations. She testified that he told her he would leave L.R. and that they could get back together but, if she did not recant, he and L.R. would make it difficult for her to see her son.
[10] In March 2002, D.D. recanted her allegations that the appellant assaulted her. She swore an affidavit saying the earlier allegations were false.
[11] As the preliminary hearing neared, D.D. moved away. She testified that the distance made her less vulnerable to the appellant’s manipulation. She went to the police and give another sworn statement in which she stated that the recantation was a result of the appellant’s having asked her to swear a false affidavit and in which she re-affirmed her initial allegations. The appellant was then charged with the additional offences of obstructing justice, extortion and breaches of his undertaking.
[12] At trial, the investigating officer Sgt. Vandermeer was asked questions about whether the complainant had been charged as a result of her having sworn an affidavit recanting the initial allegations. As Sgt. Vandermeer’s testimony is a crucial aspect of this appeal, the relevant parts of his examination-in-chief and cross-examination are set out now.
[13] In the course of his examination-in-chief, the Crown asked the following questions and Sgt. Vandermeer gave the following answers:
Q: Did you ever charge D.D. with, ah, any criminal offence coming out of this affidavit?
A: I did not.
Q: And why was that?
A: When I read the affidavit, I was – my, my thoughts on the subject were that she had been influenced in some way into signing that affidavit. I didn’t know how, but I was of that opinion.
Q: And, ah, if I could just have a moment, um, all right, ah, could you tell us, officer, why you formed that opinion?
A: The affidavit, without going into the details, the, ah, actual criminal charges that Mr. Matton was facing, they’re, ah, on what’s known as a, ah, Criminal Information. It’s, ah, very technical words. Ah, it’s a, it’s, it’s a complicated legal document where each charge is, ah, stated on that, ah, court document, and it carries, ah – it’s very complex, complex document, with many legal words that are sometimes difficult to understand. The basis – the affidavit, in the order and wording that was used on it, I was of the opinion that the affidavit had been based on the actual Criminal Information charging Mr. Matton with those criminal offences. And I had never given D.D. a, ah, copy of that Information.
[14] During cross-examination, defence counsel asked Sgt. Vandermeer several questions with respect to his failure to videotape the statement taken from D.D. after she presented him with the affidavit in which she recanted. In the course of those questions, the following exchange occurred:
Q: She offered you more detail about her recantation than was in the affidavit.
A: Um, the statement that she gave, and this was another one of my concerns, um, when I believed that she had been somehow influenced into signing that affidavit, the statement that she gave me, the written statement, was not consistent with what was in the affidavit. And if she had prepared the affidavit, my view was that her written statement would have been consistent, and they weren’t the same. They were, there were differences.
Q: Okay, and what were those differences?
A: Well, in her affidavit, she basically stated that these offences did not occur. In her statement, she, that she gave me, the offences and the events had still occurred, but she generally took credit, basically blamed herself for these events occurring, and the two didn’t match; and that caused me concern, that if she, my view was if she had prepared the affidavit, her statement following, it should’ve been the same and have the same content as the, ah, as the ah, affidavit. She didn’t appear to be that familiar with the contents of the affidavit.
Q: And so because there were so many differences between the affidavit and the statement she gave you, why wouldn’t you get a sworn videotaped statement from her?
A: Well, I, I considered, ah, I can only say what I considered at the time. I, I had a sworn affidavit, and it was sworn, and that’s why I did not do a, ah, sworn video statement. I had sworn testimony.
Shortly thereafter, the exchange continued:
Q: Okay. Now you told my friend that, um, one of the reasons why you thought she may have been influenced into, um, swearing that affidavit was because of the language. The language seemed to come from the Information.
A: Yes, ah, yes.
Q: Okay, and it concerned you …
A: Yes.
Q: …that Ms. D. could’ve come up with this language.
A: Yes, actually, I had three concerns.
MS. BUDGELL: Okay.
A: Um, the first was the, ah, affidavit appeared to be very similar in the order of the charges and in the actual technical legal wording that was used on the Criminal Information charging Mr. Matton. The second, ah, concern that I had, making me believe she had been somehow influenced into signing this was that, ah, her written statement that she gave me was not consistent with the affidavit. If she had made that affidavit, they should’ve been similar, and they weren’t. And the third problem that I had, that I found striking was, um, no offence to D.D., but I don’t believe she has the educational background to prepare a document like that. That’s, that was what I was thinking.
Q: But presumably anybody who had a copy of the Information, being the charging document with the list of charges, could’ve simply copied them…
A: Yes.
The Grounds of Appeal
[15] The appellant raises five grounds of appeal. The first four relate to the charge to the jury. The appellant submits that the trial judge erred in the charge by failing to:
(1) provide a limiting charge with respect to “opinion evidence” adduced from the investigating officer;
(2) instruct the jury not to infer guilt from the appellant’s failure to provide a formal police statement;
(3) instruct on the mental element of the offence of attempting to obstruct justice; and
(4) charge on the defence of lawful excuse with respect to the failure to comply charge, and in so doing, failed to properly put the theory of the defence to the jury.
The appellant also submits that the verdict on the attempt to obstruct justice charge is unreasonable and inconsistent with the not guilty verdict on the extortion count.
[16] At the outset of the oral hearing of the appeal, the appellant abandoned the second ground of appeal.
[17] The Crown was called on to respond only to the first ground.
THE INVESTIGATING OFFICER’S “OPINION” EVIDENCE
[18] The appellant argues that Sgt. Vandermeer’s evidence as to why he did not charge D.D. for having given him a false affidavit was not relevant to any issue at trial. Consequently, the appellant submits, Sgt. Vandermeer’s opinion on that matter served no purpose other than to bolster D.D.’s credibility and, therefore, offended the rule against oath-helping.
[19] We disagree. The impugned part of Sgt. Vandermeer’s evidence was not adduced solely to bolster D.D.’s credibility. A defence theme in this case was that in domestic matters, police policy resulted in different treatment for men than for women. Thus, the Crown’s very limited questioning on this matter was directed at determining why Sgt. Vandermeer had not charged the complainant after receiving her recantation. Sgt. Vandermeer’s evidence related to the chronology of events and was limited to the actions he took and the reasons for his actions. In this regard, it is telling that defence counsel did not object to the Crown’s examination of Sgt. Vandermeer on this point. Instead, she chose to pursue it in detailed cross-examination. Further, defence counsel did not object to the charge in this regard nor did she seek a limiting instruction on it.
[20] Moreover, as Sgt. Vandermeer never gave an opinion about the complainant’s honesty or veracity, his evidence did not contravene the rule against oath-helping. The explanation that he offered for not charging D.D. after receiving her recantation was based on his investigative process and not which of her versions of events he believed. Rather, as he explained, it was the nature of the language in the affidavit – which he described as technical and complex - that caused him to think that the complainant had been influenced to sign it. The references to what Sgt. Vandermeer believed related only to his observations about the nature of the affidavit and not about the complainant or any aspect of her testimony.
DISPOSITION
[21] Accordingly, the appeal is dismissed.
RELEASED: December 12, 2008 (“E.A.C.”)
“E.A. Cronk J.A.”
“E.E. Gillese J.A.”
“G. Epstein J.A.”