R v Campeau, 2021 ABQB 408

Court of Queen’s Bench of Alberta Citation: R v Campeau, 2021 ABQB 408 Date: 20210416 Docket: 200239150Q1 Registry: Edmonton Between: Her Majesty The Queen - and - Matthew Leonard Campeau and Jaremy Cain Krause Accused _______________________________________________________________________ Reasons for Decision on Voluntariness of Statement by Matthew Leonard Campeau of the Honourable Mr. Justice Eric F.

Macklin _______________________________________________________________________ Introduction [ 1 ] Matthew Leonard Campeau faces one count of first-degree murder contrary to s 235 (1) of the Criminal Code of Canada in the death of Desmond Day Gordon. [ 2 ] Mr. Campeau turned himself into the RCMP in Langley, British Columbia where he was taken into custody. He gave a video recorded statement on March 2, 2019 to detectives with the Edmonton Police Service homicide unit who had travelled to Langley for that purpose. [ 3 ] Mr.

Campeau acknowledges being given his Charter rights and caution but argues that his statement, or a portion of it, was not voluntary.

Background [ 4 ] On February 26, 2019, at approximately 12:45 AM, the Edmonton Police Service (EPS) attended at a residence located at #1, 13570-38 Street, Edmonton, Alberta and found Desmond Day Gordon dead from gunshot wounds. [ 5 ] On February 27, 2019, as a result of EPS investigations, an arrest warrant for Matthew Leonard Campeau was issued. Mr.

Campeau was to be arrested on charges of second murder, using a firearm in committing an offence, possession of a firearm without a license, and possession of a prohibited firearm with readily accessible ammunition. [ 6 ] On February 28, 2019, the arrest warrant was extended Canada wide on a reasonable belief that Mr. Campeau had left the jurisdiction of Alberta. [ 7 ] On March 1, 2019, at approximately 10:00 AM, Mr. Campeau turned himself in on the warrant at the RCMP Community Policing Office in Langley, British Columbia. [ 8 ] After turning himself into the RCMP Community Policing Office, Mr.

Campeau was met by Constable Berthier Kyobela who took Mr. Campeau into custody, restrained him with handcuffs and did a cautionary search. He found two crack pipes on Mr. Campeau and noted that he had red eyes. [ 9 ] At 10:17 AM Constable Kyobela read Mr. Campeau his Charter rights and caution in relation to the outstanding warrant. When asked by Constable Kyobela if he understood his Charter rights, Mr. Campeau responded that he did and that he wanted to speak to a lawyer.

He also acknowledged that he understood the caution. [ 10 ] Constable Kyobela then determined that the outstanding warrant included a charge of second-degree murder and advised Mr. Campeau that he was under arrest for second-degree murder. At 10:27 AM, he again read to Mr. Campeau his Charter rights and caution. Mr. Campeau said that he understood his Charter rights and wished to speak to a lawyer. He also confirmed that he understood the caution. [ 11 ] There was no secure facility at the RCMP community policing office where Mr. Campeau could speak with a lawyer.

He was transported to the RCMP Detachment (a 5 to 7 minute drive) and arrived at 10:42 AM. He smoked a cigarette in the garage area of the Detachment and was taken into the processing area at 10:56 AM. [ 12 ] Mr. Campeau was taken to a private room and, from outside of that room at 11:05 AM, Constable Kyobela placed a call to the lawyer requested by Mr. Campeau. [ 13 ] The lawyer was initially unavailable but did leave a message that he was available at 11:13 AM.

Constable Kyobela called him back and, when assured that the lawyer was on the line, he transferred the call into the private room at 11:14 AM and hung up. [ 14 ] Constable Kyobela noted that the telephone call appeared to end at 11:24 AM. He opened the door to the private room and asked Mr. Campeau if he spoke to a lawyer. Mr. Campeau confirmed that he did so and that he was satisfied. [ 15 ] Mr.

Campeau was then processed, had his photo and fingerprints taken and was placed into a cell. [ 16 ] Constable Kyobela was later advised by Constable Dylan Burtman that information was received from Edmonton about additional charges relating to firearms, break and enter and assault. He returned to Mr. Campeau’s cell and at 4:16 PM he again read to Mr. Campeau his Charter rights and caution. At 4:22 PM, Mr.

Campeau again confirmed that he understood both the Charter rights and caution but he did not wish to call a lawyer again at that time. [ 17 ] At 4:32 PM, Constable Kyobela contacted the lawyer himself and advised him of the additional charges. At 4:52 PM, he told Mr. Campeau about his conversation with the lawyer and Mr. Campeau agreed to speak with the lawyer again. Constable Kyobela facilitated this call and noted at 5:09 PM that it was over. Mr. Campeau confirmed that he did speak with a lawyer and was satisfied. [ 18 ] Constable Kyobela did not ask Mr.

Campeau about his use of drugs but noted that he did appear sleepy or tired. He also did not recall asking Mr. Campeau about medication. [ 19 ] While Mr. Campeau was in custody at the RCMP Detachment, he was not provided with any soap, washcloth, toothbrush, toothpaste or deodorant. No change of clothes was provided to him. While shower facilities were available, he did not use them. There is no television in the cells and Mr. Campeau was not provided with any magazines or books to read nor a pencil and paper.

The lights in the cells were always on. [ 20 ] Between March 1, 2019 and March 2, 2019, while in the custody of the RCMP, Mr. Campeau had no significant conversations that affect the voluntariness of any statement with any individual in authority, including guards and RCMP members. [ 21 ] On March 2, 2019, Mr. Campeau gave a statement to EPS detectives at the RCMP detachment in Langley. The Statement of March 2, 2019 [ 22 ] Detective Dave Radmanovich was the primary or lead investigator with the Edmonton homicide unit investigating the murder of Desmond Gordon. After being notified of the arrest of Mr.

Campeau in Langley, British Columbia, he assigned Detectives Derek Lai and Greg Scott to travel to Langley and interview Mr. Campeau. They arrived in Langley in the evening of March 1, 2019 and prepared to conduct the interview on March 2, 2019.

[23] Mr. Campeau was escorted into an interview room at the Langley RCMP detachment at 11:05 AM. Detective Lai re-arrestedMr. Campeau on his outstanding warrant relating to charges of second-degree murder, use of a firearm while committing an offence,unauthorized possession of a firearm and possession of a prohibited firearm with ammunition. He also advised Mr. Campeau that he maybe charged with first degree murder. Detective Lai then read to Mr. Campeau his Charter right to counsel and questioned Mr. Campeauto ensure that Mr. Campeau understood that right. Mr.

Campeau confirmed his understanding, said that he had already spoken to hislawyer and indicated that he would again contact his lawyer after the interview. [24] Detective Lai then read a standard caution to Mr. Campeau and Mr. Campeau acknowledged understanding that he did nothave to say anything. A secondary caution was then read to Mr. Campeau and again Mr. Campeau acknowledged his understanding thathe did not have to say anything to the police. [25] Due to the possibility that Mr. Campeau might later be charged with first degree murder, Detective Lai again went throughwith Mr.

Campeau his Charter right to retain and instruct counsel. Mr. Campeau again acknowledged his understanding of his Charterrights, advised that he would wait before contacting his lawyer again and confirmed his understanding that he was not obliged to sayanything. [26] Detective Lai left the interview room at 11:19 AM and Detective Scott entered it at 11:34 AM. He conducted the interviewwith Mr. Campeau. At different times during the interview, Mr. Campeau lay down on the floor with an arm covering his eyes or sat atthe table with his head resting on his arm.

He was allowed to take a number of cigarette or washroom breaks. On a number of occasions,Mr. Campeau stated in response to a question or statement from Detective Scott that he had nothing to say, they could talk to his lawyer,his lawyer told him to remain silent, he wanted to go back to his cell or he wanted them to stop asking him questions. [27] At around 2:05 PM, Mr. Campeau asked to speak to his lawyer and at 2:12 PM, Detective Lai took him to the telephone room.Mr. Campeau returned to the interview room at 2:23 PM.

He remained essentially unresponsive to most questions and statements byDetective Scott until Detective Scott played a 90 second video clip at 3:23 PM from an interview on February 27, 2019 of his co-accused, Jaremy Krause, and was advised that Mr. Krause had been released. [28] After seeing the video clip, Mr. Campeau had a brief but very emotional and aggressive reaction. He then calmed down andagain responded to questions or statements by Detective Scott by stating that he had nothing to say. The interview concluded at 3:40 PM. Issue [29] The sole issue is whether the statement given by Mr.

Campeau to the Edmonton Police Service on March 2, 2019 in Langley,British Columbia was voluntary. If so, it is admissible. If not, neither it nor those derivative portions of a subsequent statement areadmissible. Law [30] A statement or confession by an accused is not admissible in evidence if it is made under circumstances that raise areasonable doubt as to voluntariness: R v Oickle, 2000 SCC 38 , [2000] 2 SCR 3.

If a statement is found to be inadmissible asbeing involuntary, any subsequent statements made while the same factors affecting the voluntariness of the initial statement are stilloperating will also be inadmissible. Further, any subsequent statements or portions of statements obtained in reliance or as a consequenceof the involuntary statement will also be tainted and inadmissible. The fact that a statement is made voluntarily and found to beadmissible does not preclude a finding that the statement or portions of it may be unreliable.

That is, it is still necessary for the trial judgeto assess the weight to be given to any admissions made. [31] The assessment of whether a statement was made voluntarily may be impacted by whether the police provided inducementsor created oppressive circumstances, whether the accused had an operating mind or whether the police have used trickery. Theoverriding question in each case is whether the will of the accused has been overborne: Oickle para 57. [32] When considering the presence of inducements, courts often look at whether there has been a hope of advantage or a fear ofprejudice directed to the accused.

Oppressive circumstances may include relentless accusations by the police, aggressive or intimidatingquestioning for a prolonged period or the deprivation of necessities of life such as food, drink, medical attention or washroom breaks. [33] The lack of an operating mind may be caused by someone being in shock, intoxicated by alcohol or drugs or suffering from amental illness.

The presence of these factors do not necessarily mean that a statement will be inadmissible as it may still be establishedthat the accused possessed a limited degree of cognitive ability to understand what they were saying and to comprehend that the evidencemay be used in evidence against them: R v Whittle, (SCC), 1994 SCC 55 , [1994] 2 SCR 914 at para 20. [34] The use of “dirty tricks” by the police may render a statement involuntary and inadmissible where the police conduct “is soappalling as to shock the community” (Oickle para 65). [35] In every case, and regardless of the method or behaviour used by the police in obtaining a statement from an accused, theissue is whether there is a basis for doubting whether the accused would have made the statement in the absence of the impugned policeconduct.

As emphasized by the Court in Oickle, the conduct of the police in trying to convince an accused to make a statement onlybecomes improper when the conduct, either standing alone or in combination with other factors, is “strong enough to raise a reasonabledoubt about whether the will of the subject has been overborne” (Oickle para 57). Discussion

[ 36 ] Mr. Campeau clearly understood his right to counsel and his right to remain silent in the face of questions or statements from Detective Scott during the course of the interview. At various times he made himself comfortable by lying on the floor with his arm covering his eyes or by sitting on a chair with his head resting on his arm on the table while exercising his right to remain silent. [ 37 ] In response to questions or statements designed specifically to elicit some form of response, Mr.

Campeau often responded by stating any one or more variations of: he had nothing to say; he did not want to talk; they should talk to his lawyer; his lawyer told him to remain silent; he wanted to go back to his cell; and that he wanted them to stop asking him questions. He did assert his right to remain silent around 14 different times and though Detective Scott continued in his attempts to question him or make statements in an attempt to elicit information from him, it did not have that desired effect.

While Detective Scott was persistent in continuing, he did not make relentless accusations and was not aggressive. Mr. Campeau never appeared intimidated by him and was able to resist being engaged in any meaningful discussion. [ 38 ] At one point, Detective Scott exhibited his frustration at Mr. Campeau’s reluctance to sit in the chair at the table and in response to Mr. Campeau’s desire for a cigarette break, Detective Scott told him that he was willing to take Mr. Campeau for a “smoke break” if Mr. Campeau would commit to “at least sit in the chair.” Mr.

Campeau responded that he would sit up at the table but he did not “have anything to discuss with you nor do I have anything I want to see. You guys can talk to my lawyer.” Detective Scott acknowledged that one of the reasons he wanted Mr. Campeau to sit in a chair was that he wished to have him view some evidence. [ 39 ] I am satisfied that this discussion did not amount to any inducement by holding out a hope of advantage by speaking nor did it amount to any kind of oppressive circumstance. It did not result in Mr.

Campeau speaking to Detective Scott as is evident by his comment that he still had nothing to discuss with Detective Scott. That is, the quid pro quo for allowing a smoke break was a willingness to sit in a chair, not to make a statement. It is also of note that later in the interview, Mr. Campeau returned to his preferred positions of lying on the floor or with his head down on the table. [ 40 ] While Mr. Campeau did, at times, provide short responses to comments or questions by Detective Scott, it is clear that he never lost sight of his right and ability to refuse to say anything to Detective Scott.

For the most part, the brief comments or responses that he did make related to personal matters. Again, they were often followed by an outright refusal to say anything further. [ 41 ] Detective Scott testified that one of the tactics he intended to, and ultimately did, use to try and get a response or reaction from Mr. Campeau was to play an emotional 911 call made by Ms. Yendo and to show him evidence such as photographs of the crime scene, CCTV surveillance footage and the video clip from the interview with Mr. Krause. The only one that elicited a real emotional response from Mr. Campeau was the video clip.

He did not react in any meaningful way to the 911 call, the CCTV footage or the photographs which he either turned over or did not appear to look at. [ 42 ] When Detective Scott played the 90 second video clip from the interview with Mr. Krause and told Mr. Campeau that Mr. Krause had been released, it prompted a brief but very emotionally charged response from Mr. Campeau. Mr.

Campeau responded by pushing the table away and in a loud profanity laced outburst lasting perhaps 30 seconds, he made a statement that, in the context of the voir dire evidence alone, is somewhat ambiguous. [ 43 ] Following this outburst, Mr. Campeau calmed down and emphasized again that he had nothing else to say. Further, it is clear that the statement by Detective Scott to the effect that Mr. Krause had been released was neither an attempt to induce Mr. Campeau to talk with a promise of favour nor was it interpreted as such by Mr. Campeau. That is, the statement cannot be seen as a promise to Mr.

Campeau that he too would be released if he provided a statement and it was clearly not so interpreted by him. [ 44 ] The Defence says that it was incumbent upon Detective Scott to determine whether Mr. Campeau was either on drugs (two crack pipes were found on him when he was first arrested) or coming down from being on drugs or in withdrawal from drugs. Given Mr. Campeau’s demeanour and responsiveness during the course of the interview as well as his clear understanding and exercise of his right to silence, it is not at all evident that Mr.

Campeau was, or may have been, under the influence of any drugs at the time such as to impair his operating mind. While a checked box on the Prison Report form indicated that Mr. Campeau was not “fit for incarceration” I am satisfied that this was checked in error by Constable Kyobela who testified that he did not believe this to be the case and that Mr. Campeau was fit for incarceration. Further, this form was completed on March 1, 2019, the day before the statement was taken, and there is nothing to indicate that Mr.

Campeau may have ingested any drugs between the time of his arrest and the beginning of the interview on March 2, 2019 during which time he was always in custody. [ 45 ] The Defence further argues that Mr. Campeau was under oppressive conditions while in custody due to bad food, the lack of self hygiene items (soap, washcloth, toothpaste and toothbrush), overhead lighting being constantly on, an inability to shower and a cool temperature. However, there is no evidence that Mr.

Campeau thought that the food was bad or that the lack of self hygiene items or inability to shower between the time of his arrest and the time of the statement caused him any distress. While there is some evidence that the temperature in the cells was cooler, there is nothing to suggest that Mr. Campeau was uncomfortable with it or that he was bothered by the light. That is, there is no evidence that any of these factors impacted in any way on Mr. Campeau, and particularly, on his ability to exercise his free will at the time of and during the interview. [ 46 ] During the course of the interview, Mr.

Campeau was provided with food and drinks. He was given breaks to smoke cigarettes and, for the most part, was able to choose where to sit or lie down. At his request, he was given another opportunity to speak to counsel and did so about one hour before his outburst. The conditions existing during the interview were not oppressive for Mr. Campeau. [ 47 ] The question remains whether the tactics attempted or employed by Detective Scott, including his continued attempts to engage Mr. Campeau notwithstanding his oft and repeated statements asserting his right to silence, and the conditions of Mr.

Campeau’s detention collectively amounted to such an oppressive atmosphere that Mr. Campeau’s will to remain silent was overborne. [ 48 ] On viewing the entire statement, and paying particular attention to Mr. Campeau’s comments, demeanour and actions throughout, I am not of the view that the combined effect of all of Detective Scott’s methods, the atmosphere in the interview room and the conditions of Mr. Campeau’s custody created such an oppressive environment as to cause Mr. Campeau’s will to remain silent

overborne. He remained clear and firm in expressing his wish to remain silent both before the video clip and after the brief emotional outburst. The emotional outburst was not a consequence of his will being overborne. [ 49 ] In short, the evidence of the conditions under which Mr. Campeau was held and the manner in which the interview of Mr. Campeau was conducted are collectively not strong enough to raise a reasonable doubt as to whether the will of Mr. Campeau had been overborne. Conclusion [ 50 ] In conclusion, I am satisfied beyond a reasonable doubt that the statement by Mr.

Campeau in his interview with Detective Scott on March 2, 2019 was made freely and voluntarily. At no point was the will of Mr. Campeau overborne. The statement is admissible. Heard on the 6 th day of April to the 13 th day of April, 2021 Decision given orally on the 16 th day of April, 2021. Dated at the City of Edmonton, Alberta this 16 th day of April, 2021. Eric F. Macklin J.C.Q.B.A. Appearances: Lori Dunford and Vern Eichhorn for the Crown Shawn King and Caliena Swick for the Accused Matthew Campeau