R. v. Vanbree, 2010 ONSC 6862

CITATION : R. v. Vanbree, 2010 ONSC 6862 CORNWALL COURT FILE NO.: 10-84 DATE: 2010/12/13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Malcolm Lindsay, for the Crown ) ) ) - and - ) ) ) RONALD RICHARD CHARLES VANBREE ) ) ) Frank Horn, for the accused ) ) ) ) )) HEARD at Cornwall: October 14 and 15, December 7 and 8, 2010 Decision on Voir Dire Re Admissibility of Videotaped Statement Annis J. [ 1 ] This voir dire concerns the admissibility of a videotaped statement of approximately one hour given by Mr.

Ronald Vanbree to Detective Constable Ryan Campeau (“Detective Campeau”) starting at 6:51 P.M. on June 30, 2009 at the Cornwall Police Station. [ 2 ] Mr. Vanbree is charged with three counts of unlawful possession of controlled drugs, to wit hydromorphone, morphine and oxycodon, possession of hydromorphone for the purpose of trafficking and possession of Canadian currency exceeding $5000 obtained by the commission of an indictable offence. [ 3 ] Mr. Vanbree claims that the videotaped statement was not given voluntarily.

He alleges that he was induced into giving the statement on promises by Detective Campeau made in a brief conversation before the video statement commenced. He claims that Detective Campeau indicated that unless he agreed to provide a statement, the accused's three friends who he considered to be like "family" and who had been arrested at his residence the same day, would not be released. Arrest of the Accused and his Three Friends

[ 4 ] The Crown theory is that the accused was running a drug operation. After conducting surveillance and other police operations, the Street Crime Unit of the Cornwall Community Police Services (“CCPS”) under the direction of Detective Campeau obtained search warrants which they executed simultaneously at approximately 2 PM on June 30, 2009 at the accused's business Ace Upholstery shop on 527A Pitt Street and at his rented residence at 2755 Ross Ave. [ 5 ] Three other individuals, being Mr. Robert Walker, his brother Mr. Stephen Walker and Randy Hart also resided with Mr.

Vanbree as his sub tenants at 2755 Ross Ave. The house was setup with common living areas, being a kitchen and living rooms along with several bedrooms, two in the basement. The three tenants were long time friends of Mr. Vanbree. In addition to their rooms which had individual locks, they shared the remainder of the residence with him.

They paid a monthly room and board and contributed to the household expenses while performing household duties such as cooking, cleaning and maintaining the property. [ 6 ] The police found drugs at both sites, the trafficking quantities of prohibited drugs being located at Ace Upholstery. At Ace Upholstery shop on 527A Pitt Street the evidence of Detective Campeau was that upon entering the premises, as a safety precaution before conducting the search, he asked Mr. Vanbree whether there were any hazards or traps on the premises.

He states that the accused indicated "No" but referred or pointed to the filing cabinet. The prohibited drugs were found in the filing cabinet after the lock was removed. Mr. Vanbree also had C$8560 on his person. [ 7 ] The search warrant was executed by a different team of police officers at the Ross residence. Oxycodone pills were found in the basement common room at the premises of Ross Avenue along with contraband cigarettes and alcohol, digital and manual scales plus a card organizer of debtors. Also found at the residence was cash in the amount of Canadian $4500 in a safe in Robert Walker's room.

The three friends of the accused were arrested and taken to the police station. [ 8 ] The accused was arrested at Ace Upholstery for possession of prohibited drugs and proceeds of crime. He was cautioned as to his rights and advised of his right to counsel, whereupon he indicated he wished to speak to Ian Paul, a criminal lawyer practising in Cornwall. He was then handcuffed and taken to the station by Constable Martin DePratto. [ 9 ] At the station Constable DePratto phoned the office of William Wade, another Cornwall criminal lawyer whose name was given to him by the accused.

He was also provided with a secondary caution. When he could not reach Mr. Wade and after leaving a message that Mr. Vanbree was at the police station, he offered to locate the duty counsel, which offer Mr. Vanbree declined. [ 10 ] Mr. Vanbree was processed by Sergeant Holland the station OIC at approximately 4:30 PM and then placed in cell number 3 in the basement cellblock. Robert Walker was later placed in cell number 1 with an empty cell separating the two gentlemen. The other individuals were lodged elsewhere in the police station.

Conversation Preceding the Video-Recorded Interview [ 11 ] While in his cell in the basement, the accused testified that he had a conversation with Robert Walker. When told that the three of them had been arrested for pills found at their residence, the accused indicated that he would straighten that out. There was no evidence however that he raised this issue with Detective Campeau when he came down to his cell.

He testified that the Detective advised him that there would be more charges arising out of the pills found in his filing cabinet and that he agreed to go upstairs to discuss the pills. [ 12 ] Detective Campeau's evidence is that he proceeded to the cellblock and asked Mr. Vanbree whether he was prepared to speak to him about the day’s events to which the accused agreed. Detective Campeau then took him upstairs into the video room. During the move to the video room there was no discussion. Once in the video room however, Mr.

Vanbree alleges there was a conversation during which he was induced to participate in the videotaped statement that followed. [ 13 ] From the discrepancy in times noted in the dispatcher's log and Detective Campeau's notes, there was some issue as to the period of time between leaving the cellblock and commencing videoing of the statement during which the alleged discussion would have taken place. Based on Detective Campeau's notes 11 minutes passed between leaving and starting the taping. On the basis of the dispatcher’s log book, it was 19 minutes.

Detective Campeau indicated that the time in his notes was taken from his cell phone. Both Detective Campeau and Sgt. Holland testified that errors sometimes occurred in the dispatcher's log which was entered by hand because of the numerous duties the person performed, particularly in the afternoon when the station was very busy.

In any event, the accused's evidence was that the conversation with the Detective was brief, approximately 5 minutes, which he also confirmed in cross- examination. [ 14 ] The accused indicated that from his many experiences being involved with crimes and particularly on one occasion when he provided a statement that led to a conviction, he would never provide a statement to the police. He also testified that he wanted to speak to a lawyer because he did not know what the charges were against him.

He had asked on two occasions to speak to a lawyer and testified that he only abandoned these requests under compulsion of Detective Campeau's inducements and threats related to detaining his friends if he did not cooperate with him. [ 15 ] The accused testified that his main concern was to get his friends, whom he called "the boys", released because they should not have been sitting in the cells. The evidence of Messrs.

Vanbree, Robert Walker and Randy Hart (who were not boys - ages 57 and 51 respectively) supports a conclusion that there was a special bond between the four individuals who had lived together for over a decade. [ 16 ] Mr. Vanbree had assisted the other three gentlemen overcome serious personal issues of alcoholism, drug abuse etc. He had also provided other support by taking care of financial matters for them, offering room and board at a highly discounted rate and generally helping them out when needed.

In return, the three gentlemen, in addition to paying room and board, were responsible for cleaning and maintaining the house and providing the meals etc. [ 17 ] Mr. Vanbree states that Detective Campeau was aware of his concern for his friends and that he used this against him. However,

the accused offered no evidence to support a conclusion that Detective Campeau was aware of the special relationship between the fourgentlemen apart from stating that that was his belief. [18] Mr.

Vanbree testified that Detective Campeau led him to understand that if the Detective could not find out what was going on inrelation to the pills and other matters of concern to him, he could not release his friends. [19] He also testified that Detective Campeau minimized the negative consequences of providing a statement, holding out that it was asmall matter and that all he had to do was simply tell him what happened - that it was all over - that he would not do it again and that thematter would end there for him as well. [20] The accused's position changed in cross examination however, when he testified that it was implied to him by the Detective thatif he wanted his friends released, he was going to have to “sink" himself. [21] Detective Campeau denied that there was any such conversation on any of the points alleged by the accused.

He also denied anyknowledge of the nature of the relationship between the accused and the other gentleman. He had only recently arrived in Cornwall. The Videotaped Statement [22] At the commencement of the videotaped statement, Detective Campeau had Mr. Vanbree confirm that he agreed to their interview being videotaped and that he had already been cautioned at the scene on statementsgiven to the police and his right to counsel. [23] Detective Campeau also notes that he had made another attempt to call the accused's lawyer, Mr. William Wade, withoutsuccess.

He asks whether the accused wishes to speak to someone else or to the Duty Counsel. Mr. Vanbree refuses the offer of dutycounsel indicating "all they're going to do is tell me don't say nothing and we'll speak to you another time". [24] Thereafter, Detective Campeau reviews the charges and evidence implicating the accused, starting with his breaches of probationconditions and then moving to the issues of his possession of drugs, cash etc. In addition he asks questions about numerous other items,such as cigarettes, other money found in the house, his camper and other persons not of interest to these charges.

There is almost nodiscussion in relation to the accused's friends. [25] For the most part, the videotaped statement is exculpatory with only very brief comments that I find could be consideredadmissions. It is certainly not a confession as throughout Mr. Vanbree’s approach appears to be to explain suspicious circumstances, blame others such as an alleged resident who left the premises theprevious night, or minimize his own behaviour. [26] Towards the end of the interview, Detective Campeau indicates to Mr. Vanbree that he was finished with him and that he wouldbe held for bail.

The accused then asks whether there is "another way to do something around this so I can get back to work", indicatingthat a breach of probation is not a very serious charge. [27] The video shows that at all times Detective Campeau was respectful and not aggressive with the accused. He asked mostly open-ended questions, persisted from time to time which I find was appropriate as Mr. Vanbree had a tendency to digress. Generally however,he just let Mr. Vanbree talk which he did in a fairly "chatty" fashion.

The session appeared to be principally about the Detectiveinforming the accused of his charges and attempting to obtain further information on matters generally tangential to the chargesthemselves. Mr. Vanbree appeared to follow his own path in providing explanations for what happened often recounting stories that hadlittle relevance with the events. Analysis [28] It is well established that statements would be inadmissible if they were the result of "fear of prejudice or hope of advantage" touse the classic language of Ibrahim Ibrahim v.

The King, [1914] A.C. 599 (P.C.), at p. 609. [29] The accused claims that he was induced to provide a statement because of threats or benefits that would be accorded his threehousemates whom he claims had been improperly arrested. [30] The law in this regard was stated in R. v. Jackson (1977), (BC CA), 34 C.C.C. (2d) 35 (B.C.C.A.), McIntyreJ.A. (as he then was) and cited with approval in R. v.

Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 (at p. 38) as follows: It is my opinion that for a promised benefit to a person other than the accused to vitiate a confession, the benefit must beof such a nature that when considered in the light of the relationship between the person and the accused, and all the surroundingcircumstances of the confession, it would tend to induce the accused to make an untrue statement, for it is the danger that a person maybe induced by promises to make such a statement which lies at the root of this exclusionary rule. [31] I also think it is well to bear in mind the conclusions in Oickle citing R. v.

Rennie (1981), 74 Cr. App. R. 207 (C.A.) that thesource of inducements very often in the minds of the declarants: In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain aconfession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convincethe suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or

in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence.

If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority.

More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

Credibility Analysis of the Pre-Videotaping Conversation [ 32 ] Turning to the evidence, the question of whether the videotaped statement is voluntary is largely a matter of assessing the credibility of the Detective and the accused in regard to the brief conversation that preceded it. [ 33 ] I must determine whether a conversation of the nature alleged by the accused occurred prior to the videotaped interview, and if so, whether I find that the nature of the conversation thereby raises a reasonable doubt that Detective Campeau held out an inducement to Mr.

Vanbree or made a threat concerning his friends that resulted in the accused agreeing to provide the videotaped statement. [ 34 ] My conclusion is that the accused lacks credibility and that no reasonable doubt can exist that an inducement was not offered to Mr. Vanbree nor any threat made regarding his friends by Detective Campeau during their conversation that preceded the taped interview. [ 35 ] I arrive at this conclusion for the following reasons: 1. Mr. Vanbree's evidence that his main concern was to get his friends released is belied by the evidence of the videotaped statement.

His friends' charges and conduct figures almost nowhere in the hour-long interview. No objective observer could conclude that their interests were the main focus of the accused. When Detective Campeau indicates that he is about to terminate the interview, the accused pleads for his own interests asking whether there is "another way to do something around this so I can get back to work" and minimizing a breach of probation as not being a serious charge. Any deals that he was seeking at that point in time were in his own interest only.

Similarly, when discussion turned to the pills found in the Ross Street residence that might implicate his friends, he disavowed any possession of them. It is true that he attempted to shift the blame to another person whom he alleged passed some evenings at Ross Street. The point is however, that he certainly did not “sink” himself to help his friends on the key evidence implicating them, which he states was the implied deal with Detective Campeau. 2. There is nothing in the evidence beyond Mr.

Vanbree's own belief that suggests the Detective Campeau had any knowledge of the accused's alleged special relationship with the persons who resided with him. No specific evidence was provided of the nature of the discussion between them in respect of the accused’s special relationship with his friends. There is no presumption of emotional or family ties such as would exist for true family members and nothing in the evidence that could indicate to Detective Campeau that the accused had a special relationship with his housemates. The apparent evidence would lead to the contrary conclusion.

The accused stated in his evidence that he told Detective Campeau that the search warrant was illegal as against his friends’ quarters because they were tenants at the residence with locked rooms. As well, his friends appeared to be involved in similar questionable activities of their own involving contraband goods, possessing substantial amounts of cash for persons on social assistance, living in a home with exterior surveillance cameras in operation and possessing implements of the drug trade. This would point to a financial relationship, not one based on Mr.

Vanbree’s having taken them in off the street to help them in

an act of generosity to create ties similar to those of a family. 3. The versions alleged of what transpired during the five-minute conversation between the accused and the Detective changed as Mr. Vanbree testified in chief and cross examination. It began with Mr. Vanbree indicating as a secondary inducement that Detective Campeau was holding out his own release by the fact that his conduct was not serious, in addition to releasing his friends if he

cooperated. Ultimately, the accused's version of the nature of the conversation was that Detective Campeau implied that if he wanted to get his friends released, he would have "to sink" himself. This is a different scenario from that originally painted, in effect changing the nature of Detective Campeau's alleged malfeasance from one of inducement by minimizing the seriousness of his conduct to that of threatening to use his policing authority to detain his friends unless Mr. Vanbree sacrificed himself. 4.

The secondary inducement originally alleged against Detective Campeau that he minimized the seriousness of the charges is not credible. This pertains to his evidence that he held out the possibility of dropping the charges if the amount of drugs was all that was involved - that it was all over - that he wasn't interested in him Sgt. Butler indicated that the charges were serious, not to mention the violation of probation conditions.

The police had conducted surveillance over a considerable period of time and Detective Campeau's conclusion was that the accused was running a drug operation out of his business with numerous people coming and going. This was supported by the evidence found including Mr. Vanbree having in his possession large amounts of cash. Mr. Vanbree by his own admission has led a life of crime having had sentences of 12 years and seven years imposed against him with more than nine separate convictions since 1983.

There is nothing in the evidence that suggests that the police would or could rely upon his word to conclude that he was finished in dealing in drugs. Moreover, if Detective Campeau had held out such an inducement, no reasonable person with the accused's background and knowledge of the criminal process could believe the promise. Besides the problem of Crown attorneys having responsibility for determining whether charges should be dropped, the evidence shows that Mr. Vanbree is clearly an intelligent person and sophisticated participant in the criminal legal process.

In addition to his many years of incarceration and involvement in criminal proceedings, he took courses at Queens University in relation to criminal matters and was an advocate for prisoner's rights, including publishing a paper on the subject matter. It is not credible therefore that he could believe that dropping charges against him was plausible, even were I to find that such an inducement was made. 5. The accused was also not credible in relation to his evidence on his request for his "puffer" to deal with his asthma.

He stated at one time that Detective Campeau held out in his inducements that he would release his friends, give them the key to his business premises so they could get his puffer and bring it back to them that evening. No mention of the accused needing his puffer was made to Sgt. Holland who interviewed him and prepared his medical intake form, or to any of the other police witnesses, including Detective Campeau during the videotaped statement. The question of the puffer and Mr. Vanbree's request for it was not corroborated by Robert Walker who could not confirm that Mr.

Vanbree asked him to get it and bring it to the station. His evidence in cross examination was that another woman friend of Mr. Vanbree arranged for the delivery of the puffer to the police station 2 to 3 days later. 6. Detective Campeau testified in a forthright, serious and competent manner. His evidence was logical and consistent with what appeared on the videotaped statement. He followed proper procedures in discharging his duties and ensuring that Mr. Vanbree was properly treated and provided full access to his rights and ensured that he understood them.

No inconsistencies were demonstrated during cross examination or otherwise in his evidence apart from the one issue of the differing times as to when he removed the accused from the cellblock. I find that his evidence was confirmed by that of the accused wherein he stated that their discussion was brief and lasted about 5 minutes. Detective Campeau was relatively inexperienced and new to Cornwall at the time, which I think in this case this plays in his favour, both in respect of his knowledge of Mr.

Vanbree's background and contradicting the accused's allegations that he was participating in a videotaped interview on the basis of a hidden deal worked out between them, i.e. that the accused would offer himself up in order to obtain the release of his friends. Mr. Vanbree attempts to attribute to Detective Campeau a cynical contempt for his duties as a police officer which I simply do not find conveyed or intimated in any of his evidence or the videotaped statement. At no time during the videotaped statement did the Detective

actually make suggestions or directly seek a confession from the accused. Had this been their "deal", he surely would have done so. At no time either did the accused make a statement that even borders on a confession. At best his admissions against interest were minimal and appeared to be unintended, rather being a consequence of his overly "chatty" disposition and attempts to minimize the seriousness of his activities.

There was no suggestion that he had offered himself up in the interview. [ 36 ] In conclusion therefore, I do not find that the events of this conversation and its surrounding circumstances raise a reasonable doubt that Mr. Vanbree was offered an inducement or threat that caused him to participate in the interview. [ 37 ] I recognize that Mr. Vanbree had originally asked for lawyers to assist him, yet proceeded to participate in the videotaped interview without first speaking to one.

However, I find that the reasons for doing so had nothing to do so with anything Detective Campeau said or did. [ 38 ] His participation in the videotaped session was for his own reasons, probably in the hopes of improving his position by providing explanations for his actions and the drugs found, or perhaps to be released on bail as appears to be what he was seeking when Detective Campeau indicated he was terminating the interview. Oppressive Operating Mind [ 39 ] At one point it was alleged by Mr.

Vanbree that he was subject to an oppressive atmosphere and did not have an operating mind during the interview because he was suffering a severe asthma attack which left him vulnerable to Det. Campeau’s tactics to obtain inculpatory statements to the extent that any were made. This allegation was not pursued in submissions. [ 40 ] While his laboured breathing was evident from the videotaped interview, at no time in the evidence is there any suggestion that he was complaining about being in distress from not having his puffer.

Nor was any evidence of distress noted by any of the officers who saw him, including by Sgt. Holland when interviewing him and recording his medical condition. [ 41 ] I can find no basis in the evidence of any circumstances that would suggest an oppressive atmosphere or that the accused’s mindset was such that he did not understand at all times what was occurring or that what he was saying could be used to his detriment.

Conclusions on the Videotaped Statement [ 42 ] The controlling authority is Oickle which requires trial judges to consider all the circumstances surrounding an inculpatory statement and if doubt arises as to voluntariness then the statement should be ruled inadmissible. The relevant factors include threats or promises, oppression, the operating mind requirement and police trickery. [ 43 ] I am satisfied that the Crown has proven voluntariness beyond a reasonable doubt. [ 44 ] For these reasons the videotaped statement made to Detective Campeau on June 30, 2010 is ruled admissible.

The Accused’s Statement Regarding the Contents of the Filing Cabinet [ 45 ] The Crown has also requested a ruling on the admissibility of a statement made by Mr. Vanbree when executing the search warrant at Ace Upholstery on Pitt Street regarding the contents of the filing cabinet. [ 46 ] The circumstances put in evidence by Detective Campeau is that upon entering the premises as a safety precaution before conducting the search he asked Mr. Vanbree whether there were any hazards or traps on the premises. He states that the accused indicated "No" but referred or pointed to the filing cabinet.

The prohibited drugs were found in the filing cabinet. [ 47 ] I am satisfied that this statement or the conduct of the accused referring to the filing cabinet in response to a question as to whether there were any hazards or traps on the premises was given voluntarily and is admissible. ___________________________ Annis J. Released: December 13, 2010 CITATION : R. v. Vanbree, 2010 ONSC 6862 CORNWALL COURT FILE NO.: 10-84

DATE: 2010/12/13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – RONALD RICHARD CHARLES VANBREE Decision on Voir Dire Re Admissibility of Videotaped Statement Annis J. Released: December 13, 2010