Court File and Parties

Ontario Court of Justice Date: January 20, 2022 Court File No.: Brampton 3111 998 18 12698

Between: Her Majesty The Queen

— And —

Geoffrey Mathews

Before: Justice G.P. Renwick

Heard on: 19-20 January 2022 Reasons for Judgment released on: 20 January 2022

Counsel: I. Osowski, for the Crown Geoffrey Mathews, appearing on his own behalf

RENWICK J.:

Introduction

[1] The Defendant appears before the court representing himself on two serious charges arising out of alleged intimate partner violence.

[2] At the close of the prosecution’s case, the court invited submissions from the parties on the issue of identification as an Application for a directed verdict.

[3] Obviously, the court reminds itself not to act as counsel for an unrepresented party. Generally, my role is to see that the rules of procedure are followed, that only admissible evidence is admitted in the Defendant’s trial, and that all parties receive a fair trial.

Issue

[4] There is no contest on the governing law. The test for a directed verdict is the same as the test for committal to stand trial after a preliminary inquiry: Is there some admissible evidence on all essential elements of the alleged offence, which if believed could satisfy a reasonably instructed trier of fact of the Defendant’s guilt, beyond a reasonable doubt: see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

Discussion

[5] It is trite to note that I need not determine credibility or the inherent reliability of evidence in my limited role at this stage: see Arcuri, supra, at paragraphs 23, 30, and 33, and R. v. Kamermans, 2016 ONCA 117, [2016] O.J. No. 685 (C.A.) at para. 15. Moreover, in considering circumstantial evidence on a directed verdict application, I am required to perform a limited weighing of the evidence to determine if the inferences sought by the prosecution are indeed capable of being drawn: see Arcuri, supra, at paragraphs 1, and 23-30.

[6] As a general proposition, the court is required to draw all potential inferences that are favourable to the prosecution in considering whether a prima facie case has been made out. It is an intermediate threshold [1] to find that there is some evidence on all essential elements to require a Defendant to stand trial or to establish that the Defendant has a case to meet.

[7] In this case, J.C., testified about an alleged assault and sexual assault perpetrated upon her by her then-boyfriend, “Geoffrey.” While many questions in examination in chief and cross examination referred to “Mr. Mathews,” I do not believe that the complainant ever said the perpetrator’s full name.

[8] Also, perhaps as an artefact of the hybrid nature of this trial, which occurred with the prosecutor and witnesses appearing virtually, while the Defendant appeared in the physical court room, the prosecutor never asked Ms. H. to physically identify the Defendant. Moreover, Ms. H. never gave much of a physical description of her alleged aggressor beyond his height. [2]

[9] Constable Andrew Cooper testified that he arrived at the scene and spoke with Ms. H. and that once “Mr. Mathews” was arrested and removed, Ms. H. re-entered their apartment. There is no direct evidence that Cst. Cooper ever saw the alleged offender, “Mr. Mathews,” much less that the arrestee is this Defendant.

[10] The prosecutor has not led any direct evidence that the Defendant, who responds to the name “Geoffrey Mathews” is the alleged offender in this case.

[11] The prosecutor responds to the directed verdict Application by seeking the court to draw an inference about the alleged perpetrator and the Defendant. The prosecutor seeks the court to infer that the Defendant in court is the same person who allegedly committed the offences on the basis of the evidence heard and the Information and release documents before the court.

[12] The Information is the charging document. It was sworn some seven days after the alleged offence, on 19 October 2018. There is a Promise to Appear and An Undertaking Given to a Peace Officer or an Officer in Charge, attached to the Information. These documents are both apparently signed on the date of the alleged offence, 12 October 2018.

[13] Neither party made any submissions on the admissibility of the court documents nor whether they are substantively admissible for the truth of their contents.

[14] I have no evidence to compare the Defendant’s signature with the signatures on the release documents. I have no evidence of the Defendant’s date of birth or address which also appear on the court’s paperwork.

[15] I am able to draw the following inferences on the evidence I have heard:

1. The Defendant is named Geoffrey Mathews; and
2. The alleged offender is named Geoffrey Mathews.

[16] The name “Geoffrey Mathews” is not so unique that I can automatically infer that the Defendant is the “Geoffrey Mathews” who is alleged to have committed these offences.

[17] Ms. H. failed to describe the race, skin colour, ethnicity, age, or any physical attributes of her boyfriend, beyond the reference to his height.

[18] The prosecutor seeks to rely upon the fact of the Defendant’s presence as some circumstantial evidence that he is the alleged offender in this matter, primarily because he has the same first and last name and by having appeared in person, he has responded to the Information before the court.

[19] While a trier of inference can close the gap between facts when it is reasonable to do so, on the basis of all of the circumstantial evidence adduced thus far during this trial, I am unable to conclude that there is even a scintilla of evidence that the Defendant is the alleged “Geoffrey” or “Mr. Mathews” spoken about by the witnesses for the following reasons:

1. Neither Ms. H. nor Constable Cooper were asked to identify the Defendant or “Geoffrey Mathews” in the court;
2. Neither Ms. H. nor Constable Cooper were asked to provide a physical description of the “Geoffrey Mathews” they apparently spoke about;
3. There is no admissible direct evidence that “Geoffrey Mathews” and the Defendant are the same person; and
4. There is no admissible circumstantial evidence that “Geoffrey Mathews” and the Defendant are the same person.

[20] An Information is an allegation. By its very nature, it contains unproven assertions. The fact that it describes an individual by name, date of birth, and address, does little to establish that the Defendant who appears in response to the court’s process is the same person about whom the allegations relate. Absent any evidence to authenticate the accuracy of the contents, an Information, and/or release documents, cannot establish a person’s name, date of birth, or address.

[21] Simply put, even if the Information (or release documents) can tell us something, it/they can only convey hearsay. Without any admissible evidence that the contents of the Information and related paperwork are true, I cannot rely on these documents to draw any inferences respecting identity. However, even if I could, there remains an evidential chasm in suggesting that the person arrested by the police is the same person who began to appear in court two weeks after the allegations were first made, and that this Defendant is that person.

Conclusion

[22] I am not satisfied that there is some admissible evidence that a properly instructed trier of fact acting reasonably could use to conclude that the Defendant is the alleged offender in this case.

[23] Accordingly, the Application for a directed verdict is granted. The Defendant, Geoffrey Mathews, is acquitted of both counts.

Released: 20 January 2022 Justice G. Paul Renwick

Footnotes

[1] This simply means that the test is higher than a reasonable suspicion, but lower than proof beyond a reasonable doubt.

[2] Although the Defendant has stood many times in court, given his distance to the bench and a lack of any comparators, I am unable to estimate whether the Defendant is the approximate height of the alleged offender (“probably about six feet”).