R. v. Plamondon, 2020 MBPC 68

CITATION: R. v. Plamondon, 2020 MBPC 68 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) A. Millo and A. Gingera ) for the Crown - and - ) ) Mathieu Plamondon ) T. Walker ) for the Accused Accused ) ) ) Reasons for Decision ) Delivered: January 27, 2021 at ) the City of Brandon, ) in the Province of Manitoba Hewitt-Michta, P.J. INTRODUCTION [ 1 ] The accused allegedly conspired with a co-accused to transport firearms stolen from Brandon, Manitoba across the prairies to Edmonton, Alberta for purposes of selling them.

Following his arrest in Edmonton, a police officer interviewed the accused and obtained admissions, which the crown seeks to use against him at his trial. At issue is the voluntariness of the accused’s statement. More specifically, the consideration in this case is whether there is proof beyond a reasonable doubt that the accused’s statement was not the product of improper inducement by police.

EVIDENCE [ 2 ] The circumstances surrounding the accused’s police interview provide the context in which the issue of voluntariness must be examined. [ 3 ] All of the police officers who had meaningful contact with the accused from the time of his arrest through to the completion of the interview testified during the voir dire. That interview was recorded and the crown played the video.

The crown also presented video evidence from the holding area at the Edmonton Police West Division station where the accused was held following his arrest and interviewed. [ 4 ] The accused was under surveillance by members of the Edmonton Police Service prior to his arrest. Officers anticipated the issuance of a search warrant and had two warrants of arrest for the accused. The objective was to arrest the accused and execute the search warrant in a safe manner. Mobile surveillance units followed the accused and his girlfriend from 10616-107 Street to a strip mall on St Albert Trail.

The accused went into a liquor store at the mall. When he returned to the parking lot, he was arrested.

[ 5 ] Sargent Dreilich was parked in the vicinity of 11933 St Albert Trail, a residence police received authorization to search. He was in a covert vehicle and dressed in plain clothes. He drove up to the accused; displayed his police badge; and detained the accused and his girlfriend. He handcuffed the accused’s girlfriend while another officer dealt with the accused. Sargent Dreilich had no further contact with the accused in the parking lot but was tasked with interviewing him later. [ 6 ] Constable Sled was a member of the mobile surveillance unit.

Upon Sargent Dreilich detaining the accused, Constable Sled took control of the accused and placed him in handcuffs. The time of arrest was 6:51PM. Constable Sled performed a frisk search during which he seized three “dime baggies” appearing to contain controlled substances and two cell phones. He walked the accused to a police car where he read him his Charter rights including the notice of arrest, right to remain silent, and right to counsel. The accused indicated he wished to speak to a lawyer.

Constable Sled estimated he spent 18 minutes with the accused before handing him over at 7:08PM to uniformed Constables Brenneice and Lefurgey for transport in a marked police vehicle. [ 7 ] Constables Brenneice and Lefurgey testified similarly that they took custody of the accused from Constable Sled and transported him in a police wagon to the West Division police station. The accused was in a compartment in the back of the wagon. Neither officer spoke with the accused during the transport. Upon arrival, they handed the accused over to Constable Veasey.

They had no other involvement in the investigation or with the accused. [ 8 ] Constable Veasey’s first contact with the accused was at 7:26PM in the common area of West Division cells. He testified the accused “ said he was on his way to re-up from the biggest drug dealer in town ”. He understood the accused to be saying he had been on his way to pick up a new supply of drugs. The officer said the accused uttered this remark spontaneously; that it was not an answer to any question asked and that Constable Veasey said nothing in response.

Constable Veasey performed a frisk search during which the accused said repeatedly that everything in “ the black purse ” was his. Again, the officer testified the comment was spontaneous, not a response to any question from police. [ 9 ] The accused was placed in holding cell 143 and not afforded an opportunity to contact counsel. [ 10 ] Just before 8:00PM Constable Veasey learned there was a stand-off reportedly involving hostages and a firearm underway at one of the residences police were attempting to search.

Officers on scene wanted Constable Veasey to find out whether the accused had phone numbers for anyone who might be in that residence to assist the crisis negotiator. Constable Veasey spoke to the accused about this in his cell at 8:18PM and the accused provided a phone number. The interaction lasted about one minute. [ 11 ] Constable Veasey had a further interaction with the accused from 8:24 until 8:30PM. The officer was inside the cell and not visible on the video some of that time.

Constable Veasey did not have notes and could not recall any details about the interaction. [ 12 ] Around 9:00PM there is evidence of contact between Constable Veasey and the accused spanning several minutes, including Constable Veasey providing the accused with a sandwich. The officer appears to be engaged with his cell phone before and after the interaction. He then returned to the cell briefly. It was suggested in cross-examination that he may have been talking to the accused about the standoff.

Constable Veasey could not recall the details of the interaction but did not feel it concerned the standoff as he believed he would have made notes if that were the case. [ 13 ] At 9:13PM Constable Veasey again approached the accused. Constable Veasey was inside the cell and not visible on camera for some of that interaction. He did not make notes and could not recall the nature or details of the contact. [ 14 ] From 9:53 until 10:01PM Constable Veasey had further contact with the accused. Throughout this time a janitor was in and out of the cell and appeared to be cleaning or doing maintenance work.

For a few minutes the accused was removed from the cell by Constable Veasey and they walked to an area not visible on the video. Constable Veasey could not recall the details of the interaction and made no notes. He testified that maintenance staff do not enter cells that are in use to clean or do maintenance unless there is an immediate issue which might relate to property damage or malfunctioning utilities. [ 15 ] At 12:50AM Constable Veasey interacted with the accused for approximately seven minutes.

Constable Veasey did not make notes and could not recall the nature or details of that interaction. [ 16 ] Constable Clark was tasked with bringing arrestees from this investigation to the phone room to exercise their right to contact a lawyer. At 5:02AM, upon direction from Constable Veasey, he escorted the accused from his holding cell to the phone room, a distance of approximately 15 feet. He left the accused alone in the room so he could speak to a lawyer in private.

When the accused signalled he was finished, Constable Clark returned him to his holding cell. [ 17 ] Early afternoon on May 26, Sargent Dreilich walked the accused from holding cell 143 to room 151 where he conducted a video- recorded interview. Sargent Dreilich and the accused are visible on video at 12:52:17 hours moving through the hallway in the cell area. At about 12:52:24 hours they passed through a doorway and disappeared from the camera view.

Sargent Dreilich testified the interview room is just past the door and that he would have taken the accused directly into the interview room. [ 18 ] The video commences at 12:53PM and it is apparent the recording did not capture the beginning of the interview. There is no evidence as to whether the time clock on the cell block video is in sync with the time clock on the interview room video. Assuming they are in sync, the video is potentially missing the first 50 or so seconds of the interview.

Sargent Dreilich explained the video did not run continually in that interview room; it had to be manually started and stopped; and operating the recording equipment was the responsibility of the monitoring officer not the interviewing officer. [ 19 ] Sargent Dreilich told the accused this was his chance to set the story straight. He stated police had been working on this investigation for a long time and that lots of people would be charged with serious offences.

He advised the accused that regardless of anything said to him by anyone up to that point, he did not need to say anything and that whatever he did say may become evidence. He had the accused confirm his understanding verbally and by signing a standard form. [ 20 ] Sargent Dreilich asked the accused if he wanted water or anything else; the accused requested water; and a cup of water was

provided to him. The accused thanked the officer. He told Sargent Dreilich he had been sleeping the whole time. [ 21 ] Sargent Dreilich asked the accused what he had to say. The accused asked who was being charged in relation to the gun and there was an exchange about the officer’s inability to provide information about what was happening with others in the investigation. [ 22 ] The accused denied knowing the firearms were stolen property. Sargent Dreilich told the accused he was facing serious charges and listed several examples indicating some carried mandatory minimum sentences.

The accused said his lawyer told him mandatory minimums were gone and the officer contradicted that information. [ 23 ] The officer continued to emphasize the seriousness of the situation and again told the accused this was an opportunity to set the record straight. The accused said he was not sure what to say as he was scared about getting more charges “ by giving you guys more evidence ”. [ 24 ] The accused said Chad Hooke brought the accused to Edmonton so the accused could introduce him to people and that he had done so. He denied receiving any benefit or being involved in making the deals.

He denied involvement with Chad Hooke in stealing the guns. He denied knowing where the stolen truck was. The accused told the officer he could look at his cell phone to confirm the accused had not been responding to recent messages from Chad Hooke. He detailed for the officer how he had come to be involved with Chad Hooke over the preceding month. He admitted taking pictures of guns Chad Hooke showed him and sending those pictures to a contact whose name he provided to Sargent Dreilich. He provided identifying information for the individual he introduced to Chad Hooke and with whom Chad Hooke “ did the deal ”.

He identified the location of the deal. [ 25 ] Sargent Dreilich told the accused “ if you’re not telling me the truth then things change…the truth goes a long ways with me ”. The accused insisted he was telling the truth and asked “ but…what good’s the truth doing me? ” Sargent Dreilich told the accused that would “ determine what happens with this…If your information’s good or not ”. [ 26 ] The accused said any information he provided from that point forward was serious information and said he was not providing it if it was not going to help him.

He said he did not care about being charged himself but that he had just learned his girlfriend was pregnant and he did not want her to be charged. He said he would not be talking to Sargent Dreilich were it not for his girlfriend being pregnant. [ 27 ] Sargent Dreilich changed the subject and asked the accused for more details about the gun deal. The accused did not provide further details. He told the officer he had been clean but recently started using drugs again. [ 28 ] Sargent Dreilich changed the subject asking the accused about how the gun was left in the hotel room.

The accused admitted knowing about the gun being found in the hotel room but that it was not his gun and not his problem. He admitted he handled the gun and that police would likely find his DNA on it. Sargent Dreilich asked about the involvement of “Smokey” and the accused provided information about his connection to that person. [ 29 ] The accused told Sargent Dreilich he was not going to tell him anything more unless he knew what was happening. He said he was not going to provide information and “ still get stuck with all these charges ”.

Sargent Dreilich told the accused he could not make him any promises and that it would be up to the crown. The accused told him to talk to the crown if he wanted more information. He said he “ could help a lot more ” but would not do so if he was not going to get some benefit from doing so. Sargent Dreilich said “ Okay. Okay. Give me a second .” He left the interview room and returned seven minutes later. [ 30 ] When Sargent Dreilich returned he did not address the accused’s earlier request for a quid pro quo .

He resumed questioning the accused about his involvement and the accused was responsive to the officer’s questions, providing further information. Sargent Dreilich then said “ Anything else? ” to which the accused responded asking what he was getting for the information he was providing. Sargent Dreilich said “ Fair enough…we’ll conclude it now…we’ll conclude this part right now and we’ll talk…we’ll wrap it up…cause I got to get some answers for you ”. [ 31 ] The video recording appears to stop before the interaction is complete and before the accused is taken out of the video room.

The officer is standing at the door to leave the interview room in the final image on the recording. When the recording stops the time stamp indicates 13:19:43. The officer said he remembers that after the interview he cautioned the accused about providing information about dangerous people on video. He said he stopped the interview abruptly because he was concerned about the accused starting to talk about dangerous people knowing the recording would form part of a disclosure package. [ 32 ] There is video evidence of the accused returning from the interview room to the cell area at approximately 13:20:54.

He was not, however, returned to his holding cell. At 13:23PM, Officer Dreilich walked the accused back in the direction of the interview room though there is no evidence of where they actually went once they passed through the doors exiting the cell block area. Sargent Dreilich testified he had no recollection of where he took the accused at 13:23PM or of any further conversation with the accused. When asked whether he recalled a further discussion with the accused along with another officer he said he did not recall. I did not believe this aspect of Sargent Dreilich’s evidence.

I suspect there was another meeting or interview of the accused but there is no evidence other than a video of Sargent Dreilich returning the accused to cell 143 approximately 75 minutes later. [ 33 ] All of the officers who had contact with the accused on May 25 and 26, testified that they made no threats or promises to the accused. THE LAW [ 34 ] The assessment of voluntariness is contextual and grounded in the confessions rule which has a broader scope than the Charter.

The onus rests with the crown to prove voluntariness beyond a reasonable doubt and failure to do so always results in exclusion of the evidence. The modern day confessions rule strives to safeguard the rights of an accused person without disproportionately constraining the public interest in solving crimes. The rationale for requiring proof of voluntariness rests in the importance of ensuring reliability of the statement and fair treatment of the accused, including his right to choose whether or not to make a statement.

When the court assesses voluntariness it works to prevent reliance upon improperly induced or coerced admissions; it seeks to weed out potentially false

confessions. [ R. v. Oickle 2000 SCC 38 ] [ 35 ] Inducements are not uncommon during police interrogations. The mere presence of an inducement by threat or promise is not determinative. The question is whether inducement(

s) alone or together with other dynamics raise a reasonable doubt about whether the will of the accused was overwhelmed. Self-generated hopes of favour held out by the accused do not render a statement involuntary. “The most important consideration in all cases is to look for a quid pro quo offer by interrogators” [ Oickle at para. 57] . ANALYSIS [ 36 ] The defence says Constable Veasey intentionally engaged in rapport building, introducing the idea that police could help the accused if he provided information.

That suggestion was never put to the officer but the defence argues it is an available inference arising from the number of times the officer sought out and interacted with the accused over the ten hours he was in the holding cell prior to being allowed to call a lawyer in combination with the fact that the officer did not similarly attend to any other holding cells. [ 37 ] The defence asserts that Sargent Dreilich then took advantage of the accused’s obvious belief that providing information would earn him a benefit and that he was intentionally vague in his dealings with the accused so as to leave the impression of a quid pro quo .

The defence says this is apparent from watching the video and can be inferred from the premature conclusion of the interview as well as the cell block video recording of Sargent Dreilich walking the accused back in the direction of the interview room within minutes of concluding the recorded interview. [ 38 ] The defence emphasizes a suspicious lack of notes or recollection on the part of the two officers in terms of interactions with the accused apart from the audio-video recorded interview. [ 39 ] Finally, the defence says the court should be concerned about whether the accused had an operating mind during the statement because he yawned, seemed to fall asleep while Sargent Dreilich was out of the room, indicated he had recently relapsed regarding drug use, may have had undiscovered cocaine on his person when he went into custody, and said time felt “squashed”. [ 40 ] All of these issues in combination should raise a reasonable doubt about the voluntariness of the accused’s statement is the assertion. [ 41 ] I share the defence concern about the absence of officer notes and independent recollection of interactions with the accused before and after the video statement.

Constable Veasey’s notes seem unadvisedly sparse for an investigation of this significance. His insistence that he carried a clipboard and would have noted any relevant exchanges with the accused is less comforting when one watches the video and sees the clipboard is not always in his hand when he is interacting with the accused. It is difficult not to be suspicious of Sargent Dreilich’s insistence he has no recollection of where he took the accused a few minutes after completion of the formal interview especially given the exchange just before the conclusion of the statement.

That being said, aspects of the defence argument are simply an invitation to speculate beyond the scope of the available evidence. [ 42 ] Constable Veasey testified that, while he does not recall the details of some of the conversations he had with the accused, he remembered that the accused was “chatty”. That testimony is corroborated somewhat by the accused’s behaviour during the interview. He seemed eager to talk and sometimes provided information beyond what he was asked. When officer Dreilich attempted to end the interview, the accused continued to talk.

This likely accounts for at least some of the time Constable Veasey interacted with the accused [ 43 ] There is a dearth of evidence about what, if anything, happened following the formal interview. [ 44 ] Assuming the defence is correct and Constable Veasey was chatting the accused up in an effort to build rapport and make him more amenable to providing information, it does not inevitably follow that his statement was involuntary.

Even if Sargent Dreilich was intentionally vague in response to the accused’s requests for consideration in exchange for information and even though he left the room at a time in the conversation that was arguably suggestive, it does not automatically follow that the statement was involuntary. Consideration must be given to whether the actions of police caused the accused’s will to be overborne and whether there was a quid pro quo offered by police.

Careful review of the statement establishes this was not the case. [ 45 ] The accused repeatedly tried to generate a quid pro quo with police and his desire to make such a deal with police appears to have been a primary motivation for providing the information that he did. He suggested his pregnant girlfriend not be charged. He requested consideration in terms of the charges he would be facing. He made it clear he had good information about matters beyond the scope of the firearms investigation, but he would not share it unless he got something in return.

His repeated requests for consideration demonstrate that he knew there was no quid pro quo yet established. Sargent Dreilich told him he could not make him any promises; he changed the subject; he left the room when the accused persisted and then returned and continued with his questioning. Leaving the room had the same effect as changing the subject. It distracted the accused and the officer was able to elicit further evidence upon his return. There was no quid pro quo , implicit or otherwise, offered by Sargent Dreilich. [ 46 ] The interview was short in duration and conversational in nature.

It was not an interrogation. The officer’s tone of voice and choice of language was calm and measured. The accused was engaged and cooperative. He presented as savvy and worldly, not timid or naïve. There was nothing oppressive or threatening about the atmosphere or the exchange. The accused was eager to provide information and to be rewarded for it. He offered to help police; said he had good information including about the biggest drug dealer in the city. But he would not and did not share it during the statement because there was no agreement about his receiving something in return.

Any belief or hope for a quid pro quo was self-generated. There is no evidence to support a belief or even a doubt that the accused’s will or ability to choose whether to speak with the officer was overborne by inducement held out by police. [ 47 ] There is no evidence about what happened following the interview, specifically about whether any offer or agreement related to the accused providing information was formalized. If the accused made admissions during a second interview there is no application by the crown to tender it as evidence.

The admissions the crown does seek to tender were video-recorded such that I was able to watch the video and assess voluntariness. In all the circumstances and particularly after review of that video statement, the fact that police may have had a second discussion with the accused about whether he could help them in other or even related investigations in exchange for

consideration does not raise a reasonable doubt about the voluntariness of what the accused told Sargent Dreilich on video. [48] Finally, having reviewed the entirety of the circumstances surrounding the taking of the statement and having watched thatstatement, I am not left in any reasonable doubt about whether the accused had an “operating mind” during the interview. Operatingmind requires a limited cognitive ability to understand what is being said to the accused and what he is saying in response as well ascapacity to choose whether to provide a statement.

The fact that the accused makes a choice contrary to his best interests is not proof thathe had no ability to choose and the crown need not prove the accused was aware of all legal consequences of making the statement. Thethreshold for “operating mind” is not onerous. [R. v. Whittle (SCC), [1994] 2 SCR 914] [49] The accused was responsive throughout the statement. His speech was clear as were his thought processes. He made statementsthat demonstrated an understanding that by speaking to police he was potentially providing evidence against himself and that he waschoosing to participate in the interview.

He did not appear confused. While he yawned and seemed to doze off while alone in the room,he told the officer he was able to sleep earlier while in the holding cell. He was attentive and an engaged participant in the conversationthroughout the interview. CONCLUSION [50] The crown proved the voluntariness of the accused’s statement beyond a reasonable doubt and it will be admitted into evidence. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta