Her Majesty the Queen v. Matte [Indexed as: R. v. Matte]

111 O.R. (3d) 791

2012 ONCA 504

Court of Appeal for Ontario,

Juriansz, Watt and Hoy JJ.A.

July 19, 2012

Criminal law -- Evidence -- Hearsay -- Accused convicted of breaching long-term supervision order by taking non-prescribed drug -- Accused convicted based solely on his admission that took pill held out to be Dilaudid -- Trial judge entitled to conclude that accused's admission reflected his acceptance of truth of his supplier's statement -- Conviction not unreasonable.

Criminal law -- Sentencing -- Long-term offenders -- Breach of long-term supervision order -- Accused breaching long-term supervision order ("LTSO") by taking one pill held out to be Dilaudid -- Trial judge sentencing accused to one year's incarceration -- Trial judge erring in holding that protection of public was sole purpose of LTSO and in failing to recognize that rehabilitation may also be appropriate sentencing consideration -- Sentence proportionate to gravity of offence and degree of accused's responsibility -- Accused having lengthy history of violence linked to drug abuse, having three prior breaches of LTSO and poor institutional conduct -- Appeal from sentence dismissed.

The accused, a long-term offender ("LTO"), was charged with breaching his long-term supervision order ("LTSO"). When asked by his parole officer to provide a random sample of urine to test for drugs, the accused admitted that he took a pill held out to be Dilaudid by another residence of the community correctional facility in which the accused was required to reside. His LTSO required him to abstain from non-prescribed drugs. Dilaudid was not detected when a urine sample was analyzed, so the case for the Crown consisted of the accused's admission. The trial judge convicted the accused and sentenced him to one year's incarceration. The accused appealed the conviction, arguing that it was unreasonable in the absence of proof that the pill he took was Dilaudid, and that the trial judge erred in relying on the accused's admission to carry the full burden assigned to the Crown because the admission was based on hearsay unconfirmed by other evidence. He also appealed the sentence.

Held, the appeal should be dismissed.

A party making an admission may adopt a hearsay statement for the purpose of admitting the facts disclosed in that statement. Where a party indicates a belief in, or acceptance of, a hearsay statement, such a belief or acceptance is some evidence of the truth of the contents of the hearsay statement. It was open to the trial judge to conclude that the accused's admission provided some evidence that he took Dilaudid.

The trial judge did not have the benefit of the Supreme Court of Canada's analysis in Ipeelee setting out the principles of sentencing relevant to breaches of LTSOs. The trial judge erred in characterizing the protection of the public as the "entire purpose" of the LTO provisions. Long-term supervision has two specific objectives: protecting the public from the risk of re- offence, and rehabilitating the LTO and reintegrating him or her into the community. However, despite the trial judge's error in principle, the sentence imposed was consistent with the [page792] fundamental principle of proportionality. The drug prohibition was included in the LTSO because the accused had a lengthy history of drug abuse which was inextricably interwoven with his equally lengthy history of violent offences. This was the accused's third conviction for breach of his LTSO. He had violated the terms of his statutory release four times and had a robust history of institutional offences. Despite many chances to participate in programs for violent offenders and drug abusers, he had a history of failures to attend, suspensions for inappropriate behaviour and superficial responses. As the accused had been unswerving in his resistance to rehabilitative efforts, it would not have been appropriate to give rehabilitation a prominent place in the sentencing decision. The sentence imposed was proportionate to the gravity of the offence and the degree of the accused's responsibility.

APPEAL from the conviction entered by Masse J. of the Ontario Court of Justice dated January 13, 2011 for breach of a long- term supervision order and from the sentence imposed by Masse J. on February 4, 2011.

Cases referred to

R. v. Ipeelee, [2012] S.C.J. No. 13, 2012 SCC 13, 428 N.R. 1, 91 C.R. (6th) 1, 318 B.C.A.C. 1, 2012EXP-1208, J.E. 2012-661, 288 O.A.C. 224, EYB 2012-204040, 280 C.C.C. (3d) 265, 99 W.C.B. (2d) 642, [2012] 2 C.N.L.R. 218; R. v. Streu, 1989 CanLII 52 (SCC), [1989] 1 S.C.R. 1521, [1989] S.C.J. No. 59, 96 N.R. 58, [1989] 4 W.W.R. 577, J.E. 89-954, 97 A.R. 356, 48 C.C.C. (3d) 321, 70 C.R. (3d) 1, 7 W.C.B. (2d) 332, apld

Other cases referred to

R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, J.E. 2000-838, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, 45 W.C.B. (2d) 454; R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, 42 D.L.R. (3d) 142, 1 N.R. 258, [1974] 2 W.W.R. 524, 14 C.C.C. (2d) 385, 25 C.R.N.S. 296; R. v. Labine, 1975 CanLII 1403 (ON CA), [1975] O.J. No. 235, 23 C.C.C. (2d) 567 (C.A.); R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639, 80 O.A.C. 161, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4, 26 W.C.B. (2d) 436 (C.A.); R. v. Schmidt, 1948 CanLII 6 (SCC), [1948] S.C.R. 333, [1948] S.C.J. No. 24, [1948] 4 D.L.R. 217, 92 C.C.C. 53, 6 C.R. 317; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, J.E. 87-995, 17 B.C.L.R. (2d) 1, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 718.1 [as am.], 718.2 [as am.], Part XXIII [as am.]

Authorities referred to

Wigmore on Evidence, vol. 4 (Chadbourn Rev.)

Fergus J. (Chip) O'Connor, for appellant. Holly Loubert, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: -- The appellant, Corey Matte, is long-term offender ("LTO"). Contrary to a term of his long-term supervision [page793] 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 appellant's 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 appellant's 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 urinalysis.

[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. [page794]

The test results

[9] About a week later, the urinalysis results came back. Neither Dilaudid nor creatine was detected. The parole supervisor suspected that someone else's urine had been substituted for testing.

The case for the Crown

[10] The case for the Crown consisted of the appellant's 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. O'Connor 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 appellant's 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 appellant's 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: [page795] R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, at para. 36; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, at p. 185 S.C.R.; and R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, at p. 282 S.C.R.

[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), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), at p. 538 O.R. 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 O.R. 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 O.R.

[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 CanLII 1403 (ON CA), [1975] O.J. No. 235, 23 C.C.C. (2d) 567 (C.A.), at pp. 570-71 C.C.C. 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 Crown's 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 CanLII 52 (SCC), [1989] 1 S.C.R. 1521, [1989] S.C.J. No. 59, at p. 1529 S.C.R. Admissions are not subject to the rules for testimonial qualifications of personal knowledge: R. v. Schmidt, 1948 CanLII 6 (SCC), [1948] S.C.R. 333, [1948] S.C.J. No. 24, at p. 336 S.C.R.; Streu, at p. 1528 S.C.R.; and Wigmore on Evidence, vol. 4 (Chadbourn Rev.), 1053, at p. 16.

[20] Finally, we exclude hearsay, in part at least, because we consider extrajudicial statements tendered without affording an opportunity to the party against whom it is adduced to cross-examine the declarant inherently untrustworthy. But this [page796] 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 S.C.R. 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 S.C.R.; 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 urinalysis.

[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 appellant's admission reflected his belief in, or acceptance of, the truth of his supplier's 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 judge's reasons, considered as a whole, puts paid to any submission that he misapprehended the substance or effect of evidence of the appellant's 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 appellant's acknowledged drug addiction in his personal life and relationships, and in the commission of the offences of which he has been convicted. Prevalent themes [page797] in the appellant's lengthy history of violent recidivism include emotional instability exacerbated by substance abuse. The appellant's 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 appellant's 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. O'Connor says that the trial judge erred in failing to appreciate that the objectives and principles of sentencing, provided for in Part XXIII of the Criminal Code, R.S.C. 1985, c. C-46, 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 appellant's LTO status dispositive. The sentence imposed was disproportionate to the gravity of the offence and the appellant's 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 [page798] protection of the public and only minimal weight to rehabilitation. She concedes that, as a result of the decision in R. v. Ipeelee, [2012] S.C.J. No. 13, 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 appellant's 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; [page799] (ii) the nature of the condition breached; and (iii) the relationship between the condition breached and the management of offender's 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 offender's 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 appellant's offence seems minor, almost trivial. He took a tiny pill, 2 milligrams of Dilaudid. He wasn't supposed to take pills unless they were prescribed by a doctor, or available over-the-counter and taken in accordance with the manufacturer's 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 appellant's uninterrupted string of violent crime. And so it is that taking that tiny pill is more serious than, shorn of context, it first appears. [page800]

[43] An assessment of the degree of the appellant's 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 doesn't get it.

[44] This conviction is the appellant's 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 appellant's 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 appellant's attitude towards rehabilitative programs. Despite many chances to participate in programs for violent offenders and drug abusers, the appellant's 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 offender's 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 appellant's responsibility.

Conclusion

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

Appeal dismissed.