BARRIE COURT FILE NO.: CR-19-082-MO
DATE: 20190814
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Respondent
– and –
Braedon Mathers
Applicant
Mike Flosman, Counsel for the Respondent
Alan B. Richter, Counsel for the Applicant
HEARD: August 12, 2019
RULING
HEALEY, J.:
[1] Braedon Mathers is charged with sexual assault, choking for that purpose, and assault causing bodily harm. He applies for certiorari in support of an order quashing the warrant issued by Justice E. Meijers on May 27, 2019 pursuant to s. 487.05 of the Criminal Code, authorizing the taking of his bodily substances for DNA analysis.
[2] The argument of the defence is that there is an absence of credible evidence available from the affiant, D.C. Sarah Vance, to support a finding by the justice that reasonable grounds exist to satisfy either of subsections (c) and (d) of s. 487.05(1). Specifically, the position advanced by the defence is that the affiant’s evidence speculates that the accused can be identified as a person who committed the offences in question, and speculates that any analysis of bodily substances from him will match that of the substances found on the complainant’s underwear. The idea that Braedon Mathers is the individual who attacked her is then blindly accepted by the complainant, acting upon the speculative conclusions reached by D.C. Vance, according to the defence. The procedures used by the officer tainted the entire investigation and the ultimate identification of the accused by the complainant, such that no reasonable grounds existed to issue the warrant.
[3] The statutory standard set out in s. 487.05(1) is “reasonable grounds to believe” and does not require proof on the balance of probabilities. As summarized by Watt, J.A. in R. v. Sadikov, 2014 ONCA 72 (Ont. C.A.), at para 81, “[t]he statutory and constitutional standard is one of credibly-based probability” (citations omitted).
[4] The standard for warrant review is whether there is reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: Sadikov, at para. 84.
[5] Defence counsel pointed to two errors in the Information to Obtain, Appendix “B” (the “affidavit”) where individuals with no apparent connection to this investigation are named, but primarily he sought to impugn the evidence-gathering process of the affiant, or lack of it, all for the purpose of pointing out why the affiant’s evidence failed to provide credible grounds for the issuance of the warrant. In doing so, he sought at times to have this court weigh the strength of some of the evidence provided in the affidavit, and to draw inferences favorable to his client. However, some of the evidence is capable of several different inferences, some favorable and some unfavorable to Mr. Mathers. The exercise at the time of review is not to attempt to guess which inferences were drawn by Justice Meijers, but rather to determine whether there is some credible evidence upon which he could exercise his jurisdiction to issue the warrant.
[6] However, the primary objection to the evidence relied on by the justice can be summarized as the use made by D.C. Vance and the complainant of photographic evidence.
[7] The evidence provided in the affidavit is that the complainant did not know her attacker, and she knew only one person at the wedding that she attended on July 28, 2018. The evidence is that the suspect joined her on the back patio area where she went to get fresh air, and then he led her away from the reception area and finally onto the golf course, where, after consensual kissing, he assaulted her, included hitting her on the side of her head. In her interview with the police she described losing consciousness and being in and out of consciousness, but remembers seeing the offender walk away from her. There is no evidence that the complainant viewed any photographs before providing a description of this person to the police. She described him as being: blond/red a bit curly hair, full beard nicely groomed, button nose, blue eyes, not too tall about 5’8”, a “very white with no collar shirt”, blue pants.
[8] According to the affidavit, two photo lineups may have been conducted, one on August 25, 2018 and one on October 4, 2018. The affidavit provides no evidence about how the first lineup was conducted, or in fact even if it was conducted, and minimal information about the second. The complainant did not identified anyone as a suspect from the second lineup.
[9] On October 31, 2018, the complainant contacted D.C. Vance. She told the officer that she had been looking through the Facebook friend list of the bride’s sister, and found an individual that had a strong resemblance to the male party who had sexually assaulted her. The complainant told D.C. Vance that the man’s name was Kyle Mathers, whose Facebook profile picture was from May, 2017. The complainant told the officer that she believed that Kyle Mathers had the same nose as the male who had assaulted her, and stated that if he lost some weight and had a thicker beard he could be the suspect. The complainant then sent an email to D.C. Vance, attaching the Facebook profile picture that she had located of Kyle Mathers, and wrote: “I have attached a photo of someone that looks remarkably like him. This is someone under the name Kyle Mathers. This photo is from May, 2017. If he lost some weight and grew his beard more, that would for sure be an identical look-alike of the person who attacked me”.
[10] D.C. Vance reviewed the list from the Nottawasaga Inn and noted that a female named Stephanie Mathers had rented a room in relation to the night of July 27, 2018. The room was rented for four people. Stephanie Mathers provided the hotel with an address of 13 Oban Court, Courtice, ON, together with a phone number.
[11] The affidavit provides evidence that an analyst who performed a social media scrape for Kyle Mathers found links between the bride’s family and the Mathers family.
[12] D.C. Vance then obtained a production order and viewed all the photographs taken by the professional photographer at the wedding, which she estimated to be 2,500 in number. While going through these photographs, she found that she was not able to locate a picture of Kyle Mathers, however she located multiple photographs of another male, who she determined not to be Kyle Mathers. The individual in question appeared to match the descriptors of the suspect provided by the complainant, who looked similar to Kyle Mathers. She also searched the MTO website with the last name of Mathers under the address of 13 Oban. Two results appeared: Braedon Mathers (1999/05/26) and Bruce Mathers (1967/06/03). The officer then viewed the photograph on the MTO website of Braedon Mathers and deposed that she believed it to be an exact match to the male observed throughout the wedding photographs.
[13] Among the photographs was what is described as a seating plan, with table numbers and a list of guests seated at each table. The officer observed that listed under one table were individuals with the surname of Mathers, including Stephanie, Bruce, Braedon and Kyle. Another specific photograph referenced in the affidavit is described by the officer as a family photograph that included the Mathers family, all of whom she identified through an MTO search or from the online scrapes that the officer had received. She observed that one of those individuals in the photograph was Braedon Mathers, or appeared to her to be Braedon Mathers. The officer believed that she could see the accused in 27 photographs overall.
[14] The officer took a sampling of 101 photographs from the wedding, both photographs depicting the accused as well as most of the other wedding guests. She deposed that her goal was to obtain the broadest sampling possible of guests who had attended the wedding, and so chose the photographs taken during the reception/dance. These photographs were then individually reproduced and reviewed by the complainant at the OPP detachment on December 19, 2018. The officer deposed that she asked the complainant to go through the photographs and advise the officer if there was anyone in the photographs that the officer should be aware of for any reason, and to tell her if she saw the person who had attacked her. The complainant immediately identified Braedon Mathers as a male who had attacked her at the wedding.
[15] Braedon Mathers was tracked down by the officer through Stephanie Mathers, using the phone number that the officer had obtained for her. Stephanie Mathers provided D.C. Vance with Braedon Mather’s phone number but requested that the officer wait some time before calling him because he was sleeping.
[16] Again, part of the defence’s argument is that there is an absence of evidence in the affidavit as to whether the officer followed up on various investigative leads into other potential subjects, including investigating other individuals named in the affidavit. There is an absence of evidence as to whether the officer investigated that the suspect may have been attending a different wedding. These omissions, it is argued, should have heightened the concern of the reviewing justice about the subjectivity of her investigation.
[17] However, none of this detracts, in my view, from the fact that the affiant’s evidence was that the complainant provided her with a workable description of her assailant, that the complainant located a photograph of an individual named Kyle Mathers who she described as someone who looked “remarkably alike” her attacker but whom she did not positively identify as her attacker, but that she did identify another individual in the wedding photographs as her attacker. That individual had previously been identified as Braedon Mathers by the officer through his MTO photograph. Some evidence exists that Braedon Mathers was invited to the wedding in question.
[18] The failure in the affidavit to provide extensive evidence about how the two photo lineups were conducted, or any failure on the part of D.C. Vance to follow the recommendations of the Sophonow Inquiry about the manner in which photo lineup should be conducted, is not determinative of whether the statutory standard was met in this case. The recommendations from the Sophonow Inquiry are “neither conditions precedent to the admissibility of eyewitness testimony nor binding legal dictates for the assignment of weight”: R. v. Pelletier, 2012 ONCA 566, 2012 CarswellOnt 10665 (Ont. C.A.), at para. 94. The way in which the photographic evidence was used by the complainant and the officer in this case is not without reliability and provided grounds on which the issuing justice could form reasonable grounds to believe that Braedon Mathers had opportunity to commit the offences, and that he was the individual whom the complainant pointed out as being her assailant from the wedding photographs.
[19] The defence also argues that another photo lineup should have been carried out that would include photographs of both Kyle and Braedon Mathers. This argument was advanced because of the dated nature of the photo of Kyle Mathers observed by the complainant, that there would have been time for him to lose weight or grow his beard, that the 101 wedding photos were thought to contain none of Kyle Mathers, and that there was no conclusive evidence that either were present or absent from the wedding. This argument, along with the similar arguments about the officer’s failure or apparent failure to investigate other potential suspects, is not persuasive. It is not the function of the issuing justice to ensure that all potential suspects have been eliminated before he or she can be satisfied that there are reasonable grounds to issue the warrant.
[20] I conclude that the justice had sufficient evidence to form reasonable grounds to believe that Braedon Mathers was the individual who committed the designated offences in question.
[21] The affidavit also provides evidence that DNA from a male was located in the cut out from the crotch of the underwear provided by the complainant and examined at the Centre of Forensic Sciences in Toronto. The underwear were provided to police by the complainant, who advised they were the underwear worn by her on the night the offences were committed. Semen and blood were detected in this cut out and saliva was suggested. Accordingly, there was likewise some evidence for the justice to have reasonable grounds for belief that forensic analysis of a bodily substance from Braedon Mathers will provide evidence about whether the DNA sample obtained from the underwear was from Braedon Mathers.
[22] In the result, the application to quash the warrant is dismissed.
[23] As the original warrant has expired, this court orders that the warrant shall re-issue for a period of 30 days from today’s date, under the same conditions set out in Appendix B to the original warrant.
Healey, J.
Released: August 14, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Braedon Mathers
REASONS FOR JUDGEMENT
HEALEY J.
Released: August 14, 2019