R. v. Matson, 2020 ONCJ 642

ONTARIO COURT OF JUSTICE CITATION: R. v. Matson , 2020 ONCJ 642 DATE: 2020 11 20 BETWEEN: HER MAJESTY THE QUEEN — AND — DANIEL MATSON Before Justice V. Rondinelli Reasons released on November 20, 2020 P. Keen....................................................................................................... counsel for the Crown D. V. Gunn................................................................................................ counsel for Mr.

Matson Rondinelli J.: [ 1 ] On October 28, 2020, Daniel Matson pleaded guilty before me on 5 counts of obstruct justice (s. 139(2)); 4 counts of using and dealing with forged documents (s. 368); 1 count of forgery (s. 367); and 2 counts of fraudulently personating another person (s. 403(1)). Agreed Statement of Facts [ 2 ] As part of the guilty plea proceedings, the following agreed statement of facts was read into the record. Introduction [ 3 ] Daniel James William Matson is a lawyer, called to the bar on June 21, 2013, practicing in the area of civil litigation.

After being called to the bar, he worked with a reputable local law firm, Carrel and Partners. A lawyer, Rod Johansen, left the partnership, and Mr. Matson entered into a partnership with Mr. Johansen under the name Johansen Law Firm. The allegations in this case arose principally when Mr. Matson was in partnership with Mr. Johansen. Mr. Matson’s license to practice law was suspended on June 30, 2017 as a result of some of the allegations in this case. [ 4 ] The Law Society of Upper Canada reported the first of the allegations in this case to the Thunder Bay Police on June 2, 2017.

They advised they had received evidence indicating that Mr. Matson had falsified court orders. These orders were turned over to the Law Society by the Superior Court of Justice in Thunder Bay. On June 30, 2017, Mr. Matson’s license to practice law was subject to an interim suspension. [ 5 ] As a result of the allegations, the police commenced an investigation that uncovered a number of criminal offences involving Mr. Matson. Crown and defence counsel in this case have agreed that Mr. Matson will be entering one plea in relation to each complainant.

All facts in relation to each complainant will be read in. [ 6 ] Mr. Matson was interviewed by the Law Society in this case. He denied the allegations during his first interview but did admit his wrongdoing subsequently. The evidence against him on many allegations was overwhelming. Mr. Matson, after the suspension,

acknowledged to his counsel at the outset of the criminal case, that he had committed the acts alleged subject to some clarifications. He co-operated with the Law Society investigation and consented to being formally disbarred by the Law Society of Ontario on September 28, 2020. [ 7 ] As a result of Mr. Matson’s actions, the Law Society of Ontario investigated the Johansen Law Firm. Mr. Johansen conducted an internal investigation, discovering more criminal acts, which he self-reported to the law society. After consulting with clients, he turned over information about these acts to the police.

INFORMATION 190393 Count 1: Patsy Lynn Andrechuck [ 8 ] Patsy Lynn Andrechuck was a court reporter employed by the Court Services Division of the Ministry of the Attorney General. She resigned from her position with CSD, and alleged that this was due to ongoing harassment, negligence and misfeasance. She alleged that a Justice of the Ontario Court of Justice had engaged in vexatious and harassing behaviour towards her. Ms. Andrechuk first met with Mr. Matson on December 3, 2015, for the purpose of discussing the matter. At no time was Mr. Matson ever paid any money to represent her.

It was not until mid-2016 that she requested an action be commenced. [ 9 ] It is not possible to sue a Justice of the Ontario Court of Justice in this scenario. However, it is possible to sue a Judge in their personal capacity for actions off the bench. [ 10 ] Mr. Matson prepared a statement of claim against the Justice. He forged an affidavit of service, indicating that the statement of claim had been served by process server Frank Livingston. Mr. Livingston does not exist. No such statement of claim was ever served on the Justice. [ 11 ] Between mid-2016 and December 14, 2016, Mr.

Matson misled Patsy Lynn Andrechuck about the state of the litigation. Examples of this include: that he had prepared and filed civil litigation materials; that the Justice had been served with a deposition notice; that he had reached a settlement with counsel from the Ministry of the Attorney General for $200,000. He provided these documents to Patsy Lynn Andrechuck to support claims that her civil litigation case was ongoing. These legal steps had not actually happened. Mr. Matson had not done the work he claimed. After Patsy Lynn Andrechuck had been advised of the settlement, she sought payment on it.

No payment occurred. [ 12 ] Mr. Matson forged a minutes of settlement and release document and presented that document to Patsy Lynn Andrechuck, as a valid agreement, signed by counsel for the Justice. He identified the lawyer for the Ministry of the Attorney General as being “S Clarence.” No such lawyer is employed by MAG.

The minutes of settlement indicated a number of terms including that: • The Ministry of Attorney General would pay $200,000 in damages • the Justice would undergo counselling for one year and would provide status reports to Patsy Lynn Andrechuck • the Justice would apologize, provide a written explanation of his conduct, and would be monitored by the Ontario Judicial Council for one year, with monthly reports on his courtroom conduct to be provided to Patsy Lynn Andrechuck • the Justice would be suspended for 30 days [ 13 ] No such minutes of settlement were ever reached with the Ministry of the Attorney General.

The minutes of settlement were filed with the court file. This is unusual, as minutes of settlement are not normally filed. After Mr. Matson was suspended, and new counsel was retained, Patsy Lynn Andrechuck filed a notice of discontinuance. The Prosecuting Crown understands that the lawsuit was dismissed as it had no merit. Ms. Andrechuck does not have the same understanding. Count 4: Raymond Antcliffe [ 14 ] Raymond Antcliffe was a sign installer, employed by Commercial Electric. He retained Mr. Johansen in November 2013, when Mr.

Matson was working for Carrel and Partners, because Raymond Antcliffe believed he had been wrongfully dismissed. Mr. Matson eventually assumed carriage of the file. For three years, he was advised by Mr. Matson that his case was ongoing, and he was advised there was a trial date of October 16, 2016. These statements were true. Before the trial date, Mr. Matson advised that the defendant was offering a $45,000 settlement. Raymond Antcliffe refused that offer and instructed Mr. Matson to make a counter offer of $49,000. Mr.

Matson advised that the counter offer had been accepted, and a structured settlement was reached involving a payment plan. [ 15 ] Mr. Matson advised on November 11, 2016 that payments on the payment plan had bounced. Mr. Matson then said they were going to recommence the lawsuit, take steps to foreclose on the defendant’s home to enforce settlement agreement, and that he had received a cheque for $167,000, which was being held in trust by the Royal Bank of Canada. Mr.

Matson also stated that the defendant’s lawyer was pleading with him not to foreclose on the home, and that the defendants were arranging to get a second mortgage on the house to pay the settlement agreement. He showed Raymond Antcliffe a copy of the cheque. Mr. Matson also provided 24 post dated cheques that he claimed Raymond Antcliffe could cash as they became due. [ 16 ] Some of the steps that Mr. Matson had claimed had occurred while others did not. There was a structured settlement in the amount of $45,000 with Mr.

Matson agreeing to reduce his legal fees to make up for the additional $4,000 the client requested. Those funds were paid monthly to Mr. Antcliffe and the scheduled trial date was vacated. However, Mr. Matson mislead Mr. Antcliffe with respect to other monies that he requested. Mr. Antcliffe requested that the payments be accelerated which did not happen. There was no cheque for $167,000 being held in trust. [ 17 ] During this process, Mr. Matson presented a number of fraudulent documents and court orders to Mr. Antcliffe as genuine to support his claims that the litigation was ongoing, including:

• a forged court order dated May 4, 2017 ordering the release of $167,000 held in trust • a notice of appeal [ 18 ] None of these steps were actually taken. During the course of the litigation, Mr. Matson also advanced $8,000 to Raymond Antcliffe, claiming these were settlement monies for the requested accepted payments. In fact, the money had come from the law partnership’s account. [ 19 ] Mr. Matson’s behaviour came to light after Mr. Matson was suspended. Mr. Johansen reviewed the firm records and believed that Mr.

Matson had advanced money to Raymond Antcliffe, and that Raymond Antcliffe had not paid legal fees. Mr. Johansen sent Raymond Antcliffe an invoice for over $27,000, attempted to negotiate with Raymond Antcliffe to obtain payment, and threatened legal action in an effort to recover this. Mr. Johansen’s trust records indicated that $11,250 had been advanced to Raymond Antcliffe. Raymond Antcliffe had to retain new counsel to deal with the claim by Mr. Johansen. Raymond Antcliffe’s new counsel put LawPro (the lawyers professional indemnity company) on notice of a negligence claim against Johansen Law and Mr.

Matson. [ 20 ] Mr. Antcliffe did receive his original settlement of $45,000.00 from Commercial Electric. Count 6 and Count 8: Richard Young and Daniel Pugen [ 21 ] Richard Young was a paramedic who had been employed in the District of Kenora. Richard Young retained Daniel Matson in July 2015 to represent him in a wrongful dismissal claim against the Kenora District Services Board. Richard Young was informed by Mr. Matson of repeated delays in the case. Richard Young advised that it was very frustrating dealing with Mr.

Matson, as he would not return phone calls and would delay meetings to discuss the case that had been initiated. In December 2016 Mr. Matson told Richard Young that a settlement for $25,000 had been reached. Mr. Matson told Richard Young that the money would be received before Christmas. Mr. Young advised that there were then multiple delays with payment of the settlement. [ 22 ] In support of the claim that there had been a settlement, Mr.

Matson provided Richard Young with undated correspondence from opposing counsel Daniel Pugen, indicating that the settlement was delayed because a release had not yet been received from Richard Young. The letter was forged. Daniel Pugen wrote no such letter. Mr. Matson also provided Richard Young with a forged minutes of settlement. [ 23 ] In June 2017 Richard Young’s spouse was attending Thunder Bay for work and was advised that there was a cheque for Richard Young. Mr. Matson advised he would pick her up at the airport and provide the cheque. Mr.

Matson did not attend for that meeting, and did not communicate with her at any point when she was in Thunder Bay. [ 24 ] On June 28, 2017, Mr. Matson advised Richard Young that he had been hospitalized, and that he was at the hospital because he was ill. Richard Young inquired and learned that Mr. Matson was not at the Thunder Bay Regional Health Sciences Centre. On June 30, 2017 (the date of Mr. Matson’s suspension judgment), Mr. Matson advised he was heading west to deal with some work related matters and claimed he would meet them in Dryden to provide a cheque. Mr.

Matson did not show up for the meeting. [ 25 ] Richard Young then contacted Johansen law and learned that Mr. Matson had been suspended. Mr. Johansen sent a bill for legal services, which Richard Young did not pay. [ 26 ] No lawsuit had ever been commenced. Richard Young was unable to commence a lawsuit after he learned of Mr. Matson’s suspension, because the limitation period had passed. In fact, as Mr. Young was unionized, the grievance procedure may have been the only available mechanism to enforce a settlement and it had already been utilized prior to Mr. Young approaching Mr. Matson.

Count 10: Adam Gollatt [ 27 ] Mr. Gollatt hired Mr. Matson in April 2014 to resolve an outstanding debt he was owed by Gordon Trailers Sales. In the following years, Mr. Matson kept advising him that the case was delayed. In late 2016, Mr. Gollatt understood from Mr. Matson that his case was going to trial. Mr. Matson’s recollection is he indicated the case was either going to trial or that he would be arguing a motion for

summary judgment. While the motion was filed, it was never argued. Mr. Matson told him there were a series of delays in getting the judgment. [ 28 ] In February 2017, Mr. Matson advised Mr. Gollatt he received $146,000 from the

summary judgment, and that the money was in trust at Johansen law firm. After further delay, Mr. Gollatt contacted the courthouse directly, learned there had never been a motion for

summary judgment, and that in fact a trial was scheduled on June 8, 2017. [ 29 ] Mr. Matson, after being confronted, provided Mr. Gollatt with fraudulent documents to support his claim that the legal steps had been taken. One appeared to be a Court Order signed by a Justice of the Superior Court of Justice dated May 1, 2017, granting

summary judgment in the amount of $134,869.23. Another appeared to be a garnishee statement. The documents appear convincing and legitimate, but are in fact fraudulent. Mr. Gollatt was suspicious of the documents due to the history he had been given. He confirmed with the court that they were fraudulent. Court Services Division employees have identified the documents as being fraudulent. Counts 12: Warren Hughes [ 30 ] Warren Hughes retained Johansen Law firm to represent him in a wrongful dismissal lawsuit. Mr. Matson advised Mr.

Hughes that a number of legal steps had been taken on his account when they had in fact not been, including: that four examinations for discovery had occurred, and that he had obtained a motion for costs against the opposing party to force them to attend the examination for discovery. Mr. Matson also advised Mr. Hughes that a settlement had been reached, and had Mr. Hughes sign a settlement agreement. Mr. Matson subsequently affixed Mr. Hughes’ signature to a different agreement than the one Mr. Hughes had approved. This was because a settlement had not been reached. Mr. Hughes was prepared to settle for $42,000.

The opposing party was prepared to settle for $35,000. Mr. Matson affixed Mr. Hughes’ signature to the $35,000 agreement and provided Mr. Hughes with $7,000 of firm

money to make up the difference. Count 13: Carol McMillan [ 31 ] Carol McMillan retained Mr. Matson’s former employer to represent her in a wrongful dismissal suit against Domco food services in 2011. Her claim received some significant public attention. Mr. Matson was a student-at-law and worked on the case. After becoming a lawyer, he took over the file. He was never paid any money by Ms. McMillan. On three separate occasions between 2013 and 2015 Mr. Matson gave her possible dates to attend for examinations for discovery but Domco was being very difficult in terms of finding agreeable dates.

She booked time off work for potential examinations, and at the last minute he told her that the examinations were cancelled, causing her to lose time off work. He then advised her there was an offer to settle for $8,000 (and in fact there was) which she rejected. In April 2017, he advised her there was a settlement of $244,000. Other than the $8,000 offer, these legal steps had not occurred. [ 32 ] Mr. Matson told Ms. McMillan that he would meet her at an airport in Alberta to provide the settlement cheque. She attended the airport and waited for several hours, but Mr.

Matson did not arrive and later advised her that his flights had been cancelled due to a snow storm. She became stranded at the airport due to the snowstorm, and he provided her with a hotel room to stay in. He then said he would meet her the next day but after repeat excuses, did not show and she left. He later advised that a relative would meet her in Fort Saskatchewan, but that meeting did not occur. [ 33 ] Mr. Matson later advised that the settlement funds were being held up by a bank. During this process, Ms. McMillan repeatedly questioned why the settlement was not being forwarded. On April 24, 2017, Mr.

Matson advised her she had to fly to Toronto from Alberta to meet with Domco representatives and Mr. Matson purchased her a plane ticket. She flew to Toronto but Mr. Matson did not appear and he provided a series of excuses as to why he could not appear. The excuses included an explanation that his flight had been cancelled. Ms. McMillan confirmed the flight had not been cancelled. There were a series of other messages in which Mr. Matson advised he would meet her at various locations as he was in Toronto, but he did not do so.

There were a series of messages in which he advised her he would meet her at the airport, but he did not do so. [ 34 ] Mr. Matson blamed opposing counsel for the delays. Ms. McMillan flew to Thunder Bay and Mr. Matson met her there at the airport. Mr. Matson provided a false explanation that he’d flown from Toronto to Thunder Bay. Ms. McMillan demanded to see copies of all the court documents that Mr. Matson claimed were involved in the case. [ 35 ] Mr. Matson provided her with several documents that he claimed were legitimate. The documents included warrants that ostensibly committed opposing parties to custody.

These warrants fooled Ms. McMillan, but a legal practitioner would recognize quickly they are not genuine (the warrants were on Ministry of Transportation forms, but the case was a Superior Court of Justice matter). The documents also included: notices of default judgment for $244,000, dated March 4, 2016; a judgment issued under the name of Justice Pierce for $150,000, dated February 1, 2017; an order for costs dated February 1, 2017; an order granting judgment for $610,000 dated 17 May 2017; and an order for trial dated May 29, 2017.

These documents appear genuine, but Court Services Division has confirmed all of these documents are fraudulent. [ 36 ] During the course of this fraud, Mr. Matson advanced Ms. McMillan approximately $27,000.00 of his own money. His advancing of money and false information to her appears to have been done for the purpose of hiding the fact that he had not performed the work, or obtained the results he claimed.

Count 16: Patrick Pengelly [ 37 ] Patrick Pengelly is a lawyer, registered with the Law Society of Ontario, who was acting as opposing counsel representing Domco in the case involving Carole McMillan. [ 38 ] Mr. Matson presented Carol McMillan with a number of fraudulent email communications ostensibly from Patrick Pengelly, including a bank deposit slip, wire transfer notice and cheque for $244,000. The emails and documents appear genuine, with bank seals, logos, and law firm logos on them. The communications were dated February 6, 8 2017, March 22, 2017, April 22, 27, 2017, and May 28, 2017.

The substance of the communications were the settlement funds of $244,000 had been forwarded, and that the bank was causing the delay in payment. [ 39 ] Mr. Pengelly reviewed the communications and has confirmed he did not send those communications. Count 18: Pasi Pinta [ 40 ] Pasi Pinta retained Daniel Matson to represent him in an employment case against CBRE. He never paid Mr. Matson any money. Mr. Pinta alleged he received insufficient money from a severance package. Mr. Matson told Mr. Pinta there should be a quick settlement and he did not require Mr. Pinta to pay a retainer up front. Mr.

Pinta advised they were a series of delays in the case, but ultimately advised that Mr. Pinta was receiving a settlement for approximately $129,000. Mr. Matson advised that a number of legal steps had been taken including: payment being made by CBRE, but for $6,000 less than what it should be; a court order being made requiring CBRE to pay; enforcement efforts of obtaining liens and writs, payment being made into Mr. Matson’s trust account; motions by CBRE to alter the payment terms; and orders for additional damages due to non-payment. In fact, those steps had not been taken. Mr.

Pinta attempted to obtain the settlement funds from Mr. Matson but believed that Mr. Matson was avoiding him. [ 41 ] After Mr. Matson was suspended by the Law Society, Mr. Pinta learned from Mr. Johansen that there never was a settlement, nor a settlement cheque. Mr. Pinta subsequently hired a new lawyer, and was considering commencing the entire legal process all over again.

Count 20: Lowery’s Limited [ 42 ] Lowery’s Limited, a business in Thunder Bay, hired Rod Johansen as their corporate lawyer. Daniel Matson was handling a lawsuit involving Grant Thornton. Mr. Matson provided emails and a minutes of settlement and release to Lowery’s on July 14, 2016, indicating that a settlement of $50,000 had been reached. After Mr. Matson was suspended, Mr. Johansen confirmed that no such settlement had been reached, and that the settlement agreement was fraudulent. [ 43 ] Mr.

Matson was also retained by Lowery’s to deal with a lawsuit involving the Thunder Bay Health Unit, with Lowery’s as plaintiff. Mr. Matson prepared and provided a document to Lowery’s entitled “Statement of Defense” dated June 5, 2017. The document appears genuine. In fact, the defendant did not prepare a statement of defense. After Mr. Matson was suspended, Mr. Johansen inquired into the file, notified the Law Society, client and Defendant, and the Defendant promptly provided a statement of Defense. [ 44 ] Lowery’s paid Mr. Matson between $15,000 and $20,000 in legal fees for the TBXI and TBHU matters.

There was substantial legal work actually completed on these files, including document review, site visits, and discussing the matter with experts. All of this work has value. INFORMATION 192081 COUNT 1: Kyle Johansen [ 45 ] Kyle Johansen is the brother of Rod Johansen, and he retained Johansen law in a wrongful dismissal lawsuit in late 2016. He never paid Mr. Matson any money. [ 46 ] Rod Johansen asked Mr. Matson to assist, and a statement of claim was issued. Kyle Johansen was told by Mr. Matson that a settlement had been reached for $40,000.

Rod Johansen noted that the file was not proceeding in an efficient manner. Rod Johansen reviewed the file and saw what appeared to be emails containing offers to settle from the opposing counsel for $40,000 in the file. Rod Johansen asked Mr. Matson about whether Kyle Johansen had given instructions to settle, and Mr. Matson advised there was an agreement to settle for $40,000 but he was too busy to complete the paperwork. [ 47 ] Rod Johansen then took the file and communicated with opposing counsel for the purpose of completing the settlement. Opposing counsel advised there had never been an offer to settle.

Count 4: Que-Hong Tang [ 48 ] Que-Hong Tang owned the Oriental Gardens restaurant. They retained Mr. Matson to represent them in a lawsuit involving the building that the restaurant was in. They claimed they had a rent to own agreement with the building owners, but the relationship with the owner broke down. Multiple settlement offers were exchanged and Mr. Matson did recommend the acceptance of the same and warned the client about the potential for receivership. None of the offers were accepted. [ 49 ] The building owner also brought an application to end the tenancy. The application was defended and Mr.

Matson convinced the owner, through counsel, to abandon the application. [ 50 ] The building went into receivership in Spring of 2017 and was placed on the market to be sold. They retained Mr. Matson to represent them in the case against, as they wished to obtain ownership over the building. An offer was made to the receiver but it was not accepted. Mr. Matson misled them about the progress of their legal case advising them their case was going to be settled. In fact, there was no settlement, and the building was sold. Que-Hong Tang paid Mr.

Matson approximately $20,000 in legal fees most of which was for the pleadings and the Application. Mr. Matson did not provide an account for any work associated with the receivership. Count 5: Bernie and Leanne Dowson [ 51 ] Bernie Dowson retained Daniel Matson in 2012 to represent him in a wrongful dismissal case against Confederation College. He was never paid any money. On February 27, 2017, the Dowsons attended the Thunder Bay Courthouse for what they believed from Mr. Matson was a financial hearing. Mr.

Matson advised the Dowsons they should wait outside the court because the judge was delaying the trial, but Mr. Matson told the judge that Mr. Dowson did not want to come into the courtroom. Mr. Matson told the Dowsons many times they had received a $1.7 million settlement, and that there were a series of appeals that were preventing them from accessing the money. In actual fact, there was no judgment and no appeal. The Position of the Parties [ 52 ] The defence submits that a conditional sentence in the range of 12 to 18 months would be an appropriate sentence for Mr. Matson.

In the Crown’s view, a 6-month jail term is required because incarceration is needed to denounce and deter Mr. Matson’s conduct. As the Crown put it, Mr. Matson’s actions amounted to a sort of “double breach of trust” – that is, a breach with respect to his clients’ trust, and on a broader level as an officer of the court, a breach of trust associated with the administration of justice. [ 53 ] The Criminal Code mandates that an offence committed in the context of an abuse of trust or authority is to be considered an aggravating factor in sentencing the offender: see s. 718.1 (a)(iii). In R. v.

Rosenfeld , 2009 ONCA 307 , Justice Doherty explained why an offender’s status as a lawyer is a significant aggravating factor. He stated at para. 40: [A]part from the specifics of the offences committed by the appellant, those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community.

Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the

privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of theprofession. In the long run, that cynicism must undermine public confidence in the justice system. [54] In an earlier case, this time sitting as a trial judge, Justice Doherty emphasized the importance of denunciation and generaldeterrence in sentencing a lawyer convicted of fraud in R. v. Sahaidak, [1990] O.J. No. 2792 (H.C.). He stated at para. 11: If my job was to sentence Mr.

Sahaidak, the man, and if my sentence did not have to concern itself with the details of the crimes, and if Ididn’t have to be concerned for the effect of my sentence on others and the effect of my sentence on the public perception of justice, Iwould impose a most lenient sentence in recognition of Mr. Sahaidak’s positive antecedents, his contribution to the community, andperhaps most importantly to save his family from further pain. My concerns and responsibilities on sentencing, however, go beyond theantecedents of Mr.

Sahaidak and considerations of what sentence is in his best interest and the best interest of his family. [55] There is no doubt that public confidence in the reliability of lawyer services is eroded where a lawyer breaches the trust he or sheowes to clients and to the community at large. This is starkly demonstrated in the victim impact statements filed at sentencing in thiscase.

For example, in his victim impact statement, Raymond Antcliffe noted that he felt betrayed and a loss of faith in the justice system.Pasi Pinta wrote in his victim impact statement: The respect and trust I had lost for the legal profession was further destroyed with the new lawyer and I came to realize that theprofession is not to be trusted and that they protect their own. Whether or not this is true I don’t know. This is my perception of itthrough first person experience and my lived in reality thanks to Mr.

Matson and his profession and colleagues. [56] With experiences like these, it is not surprising that the case law has made it clear that the primary sentencing principles engagedin breach of trust cases involving lawyers is general deterrence and denunciation: see R. v. McLellan, 2012 ONCA 717 at para. 27. I takeno issue with the general sentencing principles established in this case law. But this is not a general case. In my view, there are importantfactors that remove this case from the line of cases that place general deterrence and denunciation well ahead of rehabilitation andspecific deterrence. Mr.

Matson’s Mental Health [57] On my assessment of the medical evidence filed at sentencing, it is clear that Mr. Matson’s mental health issues contributed tohis offences. As such, for the purpose of sentencing, denunciation and deterrence become less important and rehabilitation becomesmore important. As Justice Gillese held in R. v. Batisse, 2009 ONCA 114 at para. 38: [38] …[W]here offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence ismeaningless to them.

Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to thecommission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in casesof persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender.

In such circumstances,the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the publicand that the offending conduct is not repeated. [58] It appears that the offences before the court were committed during a time that Mr. Matson was suffering from an undiagnosedand untreated Major Depressive Disorder. As the clinical psychologist and neuropsychologist, Dr. Michael Stambrook concluded in hisreport: [Mr.

Matson] had decompensated significantly in the face of a heavy workload, the absence of life balance, the absence of appropriateboundaries, and the reported absence of the mentorship that would have been beneficial, therapeutic, and preventative in providingappropriate oversight for his early in career and age partnership.

This had been in the context of what he reported to be what likely was an unrecognized although subsequently reported here history ofhaving recurrent Depressive Episodes which clearly escalated to having a Major Depressive Disorder during the time of his legalpractice life and consequent mental status decompensation. [59] According to Dr. Paul Johnston’s report, this Major Depressive Disorder contributed to Mr.

Matson’s diminished concentration,short-term memory, organization, planning, prioritizing, multitasking, problem-solving, motivation and frustration tolerance. [60] In my view, this disorder contributed to the commission of the offences before the court, thus reducing his moralblameworthiness. Indeed, it is hard to imagine why Mr. Matson would be losing lots of his own money and engaging in self-destructivebehaviour but for this Major Depressive Disorder. It is important to stress that Mr. Matson did not benefit financially from theseoffences. Mr.

Matson’s Rehabilitation [61] The sentencing material filed on behalf of Mr. Matson makes clear that he has made tremendous strides towards rehabilitationsince the commission of these offences. It would be an error to focus almost entirely on general deterrence and fail to consider individualdeterrence and rehabilitation, especially when sentencing a first offender: see R. v. Dubinsky, (Ont. C.A.). [62] In Dr. Stambrook’s opinion, there is no evidence that Mr. Matson has a current Major Depressive Episode, with this havingresolved in the context of receiving counselling from the psychotherapist, Sarah A. Spencer.

When Mr. Matson was first seen by Ms.

Spencer, he presented to treatment with active suicide ideation and a then recent attempt to kill himself. Ms. Spencer’s opinion was that while Mr. Matson had been in a difficult psychological state previously, he was in a “different space now.” She believes that Mr. Matson is not a risk to the public or a current risk to himself. [ 63 ] Dr. Stambrook’s report speaks further about Mr.

Matson’s risk of future harm: In regards to your question, on “issues related to dangerousness within the community,” I have no evidence that this is the case, and in the contrary, he was described as an ethical man who is functioning well in his personal and occupational life at this point. He has a position of responsibility with his employment that has been sustained, with the employer indicating that he was doing very well with this.

Significant preventative and therapeutic factors are the supportive relationships he has with his spouse, from his parents and, as I was informed explicitly from his father-in-law [ 64 ] The numerous letters of support filed on behalf of Mr. Matson amply confirm the doctors’ assessments that Mr. Matson is a very different person than he was during the commission of these offences. Collateral Consequences [ 65 ] In R. v. Bunn , 2000 SCC 9 , the Supreme Court of Canada upheld a conditional sentence imposed on a lawyer convicted of illegally diverting client money from his trust account to his general account.

Chief Justice Lamer observed at para. 23: Turning to a consideration of the principles of sentencing, the court reasonably concluded that the ruin and humiliation that Mr. Bunn had brought down upon himself and his family, together with the loss of his professional status, could provide sufficient denunciation and deterrence when coupled with a conditional sentence of two years less a day with house arrest… [ 66 ] In this case, Mr. Matson has been stripped of his licence to practice law. This is a significant consequence to Mr.

Matson when one considers what an exceptional law student he was and the great early promise he demonstrated at excelling in his chosen profession. A profession Mr. Matson indicated that he was dreaming of being a part of since grade 2. Mr. Matson’s Remorse [ 67 ] Another significant mitigating factor is that Mr. Matson pleaded guilty and has thereby freed up court time that has become even more of a valuable commodity during this pandemic.

With the number of complainants involved in this matter and typical length of trials associated with proving fraudulent documents, the time saved is not insignificant. [ 68 ] Further, the presence or absence of remorse and an assessment of whether an individual displays insight into his or her offending conduct are relevant considerations for a sentencing judge in deciding whether a conditional sentence will be consistent with the purposes and principles of sentencing: see McLellan , supra , at para. 33 . [ 69 ] Mr. Matson spoke at length at the time of his sentencing.

He acknowledges and appreciates the harm he has caused his former clients who had come to him for help with their problems, only to end up with even more problems to deal with because of his actions. I accept Mr. Matson’s remorse as being genuine. [ 70 ] It may be that Mr. Matson could have prevented these offences by seeking professional assistance earlier than he had, but as Mr. Matson put it, “I didn’t want to be seen to be that guy with mental health issues.” It is unfortunate that while Mr. Matson recognized that he needed help, he resisted it until things fell apart completely. Mr.

Matson’s experience may speak to a broader issue. That is, the stigma of mental illness remains pervasive in our society. Professionals are not immune to the risk of mental health issues. But with the engagement of proper assistance, issues can be addressed and managed. The positive results of treatment are evident in Mr. Matson’s case. As Ms. Spencer concluded in her report: Mr. Matson appears to have experienced mood and stress related mental health concerns as a result of a stressful employment situation. Since his departure from said situation and his participation in treatment. Mr.

Matson has been able to better manage potential issues including seeking support when symptoms returned. Mr. Matson is an insightful client who is eager and willing to participate in treatment despite some challenges resulting from a measure of cognitive inflexibility common among the general population. He is a bright client who attends sessions regularly and applies suggested treatment successfully. [ 71 ] It may be that Mr. Matson’s case not only serves as a deterrence to similar conduct, but also raises awareness of the benefits of seeking support for mental health issues.

Conclusion [ 72 ] In considering the sentencing principles at play in this case, and without in any way minimizing the seriousness of these offences and the impact on the lives of the complainants, I have arrived at the conclusion that an appropriate sentence for Mr. Matson is a global 18-month conditional sentence. [ 73 ] In my view, to incarcerate Mr.

Matson would be counter-productive to his rehabilitation, since it sacrifices the meaningful gains that have been achieved in terms of his mental health and support systems he has established since the time of these offences simply to foster the principles of denunciation and general deterrence by means of incarceration: see R. v. Ghadban , 2015 ONCA 760 at para. 24 . [ 74 ] Further, it has long been held by the Supreme Court of Canada that a conditional sentence is “…a punitive sanction capable of

achieving the objectives of denunciation and deterrence”: see R. v. Proulx , 2000 SCC 5 at para. 22 . The collateral consequences of Mr. Matson’s conviction for breach of trust, coupled with a conditional sentence, would provide sufficient denunciation and deterrence. As well, a conditional sentence that includes house arrest would significantly curtail Mr. Matson’s liberty. [ 75 ] For these reasons, I order that Mr. Matson serve the 18 months of his sentence by way of a conditional sentence with the following terms: 1) Keep the peace and be of good behaviour. 2) Appear before the court when required to do so by the court. 3) Report to a supervisor:

a) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and;

b) thereafter, when required by the supervisor and in the manner directed by the supervisor; 4) Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; 5) Notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation; 6) Not to possess any controlled substance within the meaning of the Controlled Drugs and Substances Act , save as authorized by law or as prescribed by a doctor or medical professional; And for the first 6 months (house arrest) 7) Reside at ____ or at an address approved of by your supervisor; and 8) Be in your place of residence at all times, except for the purposes of employment, attending for educational or counseling activities, medical appointments, religious services, or for any other purpose as approved by your conditional sentence supervisor.

And for the second 6 months (curfew) 9) Be in your place of residence between the hours of 10 p.m. and 6 a.m. except for the purposes of employment, attending for educational or counselling activities, medical appointments, religious services, or for any other purpose as approved by your conditional sentence supervisor; And for the third 6 months (statutory terms only) Released: November 20, 2020

Signed: Justice V. Rondinelli