R. v. Vickerson, Lambie and Fairbarn, 2017 ONSC 5365
CITATION: R. v. Vickerson, Lambie and Fairbarn, 2017 ONSC 5365
NEWMARKET COURT FILE NO.: CR-15-0004125-00
DATE: 20170911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Adam Gordon Vickerson, Gavin Denis Lambie and Tracy Wilma Fairbarn
Defendants
COUNSEL:
A.K. Ghosh, for the Crown
Adam Gordon Vickerson, self-represented
A. White for the defendant, Gavin Denis Lambie
R. Handlarski for the defendant, Tracy Wilma Fairbarn
HEARD: June 19, 20, 21, 26, 27 and 28, 2017
REASONS FOR DECISION ON VOLUNTARINESS and SECTION 10(a) and SECTION 10(b) of the CHARTER
SUTHERLAND J.:
Introduction
[1] The defendants were arrested from a large scale investigation known as Project Tango & Cash. Each of the defendants gave video statements after their arrests. The Crown has brought an application to admit into evidence at the trial of the defendants, Vickerson and Fairbarn’s respective videos statements. The defendants, Mr. Vickerson and Ms. Fairbarn oppose the Crown’s applications. The defendant, Mr. Lambie does not. Mr. Lambie took no part in these applications. Ms. Fairbarn has also brought an application to exclude her video statements based of section 10(a) and 10(b) of the Charter. Mr. Vickerson has not brought an application to exclude his video statements based on any section of the Charter.
[2] Mr. Lambie has 30 outstanding charges. Mr. Vickerson has 28 outstanding charges and Ms. Fairbarn has 8 outstanding charges. The charges are for fraud, forgery, conspiracy and trafficking in Fentanyl.
[3] After the hearing, I advised the parties present that I would release my disposition decision to them with reasons to follow. The reasons will be and delivered on September 11, 2017, the first scheduled day of the trial.
[4] I released to the parties by disposition of the applications on August 9, 2017 and below are my reasons for that disposition decision.
General Facts
[5] All three defendants were arrested in the early morning of December 4, 2014. Ms. Fairbarn and Mr. Vickerson were arrested at their respective residences around 5:00 a.m.
[6] Ms. Fairbarn was arrested and transported to Third District in Georgina by Police Constable (PC) Maryam Alikani. Ms. Fairbarn was read her rights to counsel and the primary and secondary caution upon arrest by PC Alikani. PC Alikani testified that Ms. Fairbarn acknowledged she understood her rights and requested to speak to duty counsel. Ms. Fairbarn advised PC Alikani that she did not have a lawyer. When PC Alikani and Ms. Fairbarn arrived at the cruiser to be transported to Third District, PC Alikani testified that she read Ms. Fairbarn her rights and had given the primary and secondary caution again. Ms. Fairbarn acknowledged she understood and again requested to speak to duty counsel. PC Alikani and Ms. Fairbarn arrived at Third District at 5:24 a.m. Ms. Fairbarn was presented to the booking Sergeant, Staff Sergeant Stock. The booking process was a short process and Ms. Fairbarn was done by 5:34 a.m.
[7] Mr. Vickerson was arrested by Tactical Constable (TC) Shane Spina. TC Spina handcuffed Mr. Vickerson and gave him to PC Martin for transportation to Third District. PC Martin testified that he advised Mr. Vickerson that he was being arrested for fraud and possession for trafficking. TC Spina testified that he had no communication with Mr. Vickerson. After TC Spina presented Mr. Vickerson to PC Martin for transportation, he had no further contact with Mr. Vickerson.
[8] PC Martin testified that upon the execution of the warrant on Mr. Vickerson, he waited at the side door of Mr. Vickerson’s residence. Once he was clear to enter the residence, PC Martin took custody of Mr. Vickerson at 5:10 a.m. He led Mr. Vickerson to the cruiser. Once inside the cruiser, PC Martin testified that he advised Mr. Vickerson of his rights to counsel and read the primary and secondary caution. PC Martin testified that Mr. Vickerson responded: “I understand and will figure it out when I get there”. PC Martin testified that he had no further conversation with Mr. Vickerson. He arrived at Third District with Mr. Vickerson at 5:45 a.m. PC Martin stated that the driving conditions were not easy. The roads were slippery.
[9] Once PC Martin arrived at Third District with Mr. Vickerson, there was a wait in the Sally Port due to the numbers of people arrested that morning. He took Mr. Vickerson to the booking Sergeant, Staff Sergeant Stock. Staff Sergeant Stock asked the usual questions of identity and advised Mr. Vickerson of his right to counsel. Staff Sergeant Stock, accompanied by PC Martin, placed Mr. Vickerson into the bull pen. PC Martin had no further contact with Mr. Vickerson from 6:01 a.m.
The Video Statements of Ms. Fairbarn
[10] Ms. Fairbarn gave two videos statements. The first statement was taken at 6: 07 a.m. on December 4, 2013 and the second statement was taken at 12:19 p.m. on December 4, 2013. The Crown conceded that the second video statement was not a properly obtained statement and is not requesting that this statement be introduced as evidence at the trial.
[11] The issue for this Court to determine is, if the Court should grant the request by the Crown that the first video statement be introduced as evidence at the trial. The facts that are in issue on the first video statement are the actions that led up to the giving of the first statement by Ms. Fairbarn. I will deal with those actions.
[12] There is no dispute on the facts up to the point of Ms. Fairbarn being presented to the booking Sergeant, Staff Sergeant Stock. There is no dispute that Ms. Fairbarn requested to see duty counsel twice prior to arriving at Third District. PC Alikani and Staff Sergeant Stock both testified that when Ms. Fairbarn was presented to Staff Sergeant Stock, she was again given her right to counsel. Ms. Fairbarn, both witnesses testified, declined to speak to duty counsel. Both testified that Ms. Fairbarn requested to speak to Detective Strivebell and that Detective Strivebell was paged and attended at the booking desk. Once he arrived, he took custody of Ms. Fairbarn. PC Alikani testified that once Detective Strivebell took custody of Ms. Fairbarn, she had no further contact with the defendant. She did not accompany Detective Strivebell with Ms. Fairbarn.
[13] Ms. Fairbarn testified that she has no recollection of whether she denied to see duty counsel when asked by Staff Sergeant Stock. She denies that she requested to see Detective Strivebell. She testified that she does not know Detective Strivebell. She testified that she had no reason to request or want to see Detective Strivebell. Detective Strivebell concurred, in his testimony, that he does not know Ms. Fairbarn and was aggravated that he was paged to come to the booking desk to see Ms. Fairbarn. He testified that he was very busy as he was in charge of the entire procedure of processing the 25 people arrested that morning under Project Tango & Cash. He had better things to do then to see Ms. Fairbarn.
[14] Apparently, the booking desk at Third District does not have cameras that would have videotaped the booking of Ms. Fairbarn and her interaction at the booking desk.
[15] What is not disputed is that Detective Strivebell, on his own without another constable present, walked Ms. Fairbarn through the offices and to the large interview room. This took place at 5:45 a.m. It is at this interview room that he and Ms. Fairbarn had a conversation, the contents of which are in dispute. Detective Strivebell testified that the room is equipment with video and audio recording devices. But he did not turn on any of these devices before or during his conversation with Ms. Fairbarn because he did not know how to do so.
[16] The contents of the conversation from the testimony of Detective Strivebell is that he advised her that she was arrested for prescription fraud. He told her about her right to counsel. She indicated that she did not want to speak to a lawyer. He told her to be patient and he would be right back. He told her that the video equipment has not been turned on. He came back several minutes later. He did not speak to her about her evidence. He did not make any promises to her or provide any inducements. He did not say to her that if she cooperated that she would not go to jail. He advised her that the interview person was Detective Constable (DC) Darren Burd. Detective Strivebell further testified that if he was going to interview her, he would have taken detailed notes. It was never his intention to interview her. According to Detective Strivebell, the conversation between him and Ms. Fairbarn was just him advising her of the charges, her right to counsel and that DC Burd will be conducting the interview.
[17] Ms. Fairbarn’s testimony on her interaction with Detective Strivebell was substantially different. She testified that her memory is “fuzzy” on what took place at the booking desk. She recollects that Detective Strivebell took her from the booking area and walked her to the interview room. She testified that Detective Strivebell introduced himself to her. She did not know who he was. She never met him before. The conversation was started by him. He told her that if she cooperated, was honest and “a good girl,” she would be able to leave and see her kids. If she cooperated she would be able to go home. She testified that her conversation with him was not very long. She testified that she was worried about her children. She had a daughter who was going to be 14 years of age in two days and a son who was 12 years of age. She testified that she interpreted the conversation with Detective Strivebell as meaning that if she cooperated, talked and answered all the questions she would go home and not go to jail. If she did not cooperate and talk to the police, she would go to jail and lose her kids.
[18] Ms. Fairbarn testified that the next officer she saw was DC Burd. He spoke to her briefly before the video equipment was operational. She testified that he introduced himself to her and told her he would be back shortly.
[19] When DC Burd returned, the video equipment was operating and the interview commenced.
[20] I note that from the video, DC Burd did not ask Ms. Fairbarn whether she had spoken to any police officer prior to commencing the interview.
[21] DC Burd did ask her if she wanted to see a lawyer. The exchange between Ms. Fairbarn and DC Burd was as follows:
BURD: You were read your rights to counsel and caution, do you recall what those are?
FAIRBARN: Just they asked me if I wanted to talk to a lawyer, um I just want to get this over with I’m not….
BURD: Yeah so you don’t want to talk to a lawyer?
FAIRBARN: If I’m not going to jail (laughs)
BURD: Yeah (laughs)
BURD: You have the right to telephone any lawyer you wish and you have the right to not say anything if you don’t want to.
FAIRBARN: I just want this over with.
[22] From 5:34 a.m. to sometime before 6:07 a.m., Ms. Fairbarn was walking with Detective Strivebell, interacted with him and waited for DC Burd in the interview room. The video equipment was activated at 6:07 a.m. and the first video statement of Ms. Fairbarn commenced shortly thereafter, around 6:11 a.m. At approximately 6:22 a.m., PC William Lumley entered the interview room and conducted a picture line up. He had no other interaction with Ms. Fairbarn except conducting the video line up.
Video Statements of Adam Vickerson
[23] Mr. Vickerson’s first video statement commenced at 10:54 a.m. on December 4, 2013. The second video statement commenced shortly thereafter at 11:17 a.m.
[24] In the first statement, Mr. Vickerson indicated that he was not given the opportunity to speak to duty counsel. All questioning stopped and Mr. Vickerson was given the opportunity to speak to duty counsel.
[25] The second video statement commenced at around 11:17 a.m. Mr. Vickerson was asked whether he spoke with duty counsel and if he was willing to answer questions. He answered that he did speak to duty counsel and that he would answer questions asked, and he did. DC Burd confirmed that Mr. Vickerson did speak to duty counsel, who explained the charges against Mr. Vickerson and Mr. Vickerson did indicate he understood.
[26] Further discussions took place between Mr. Vickerson and the Detective. At no time during the video statement did Mr. Vickerson indicate that he spoke to another Detective other than DC Burd. Mr. Vickerson did not indicate that he wished to keep silent and not answer any of the questions of DC Burd. He answered the questions asked of him from DC Burd.
Position of the Crown and Defendants
[27] Ms. Fairbarn submits that the Crown has failed to prove beyond a reasonable doubt that her first video statement was voluntary. Her interaction with Detective Strivebell compelled her to speak freely with DC Burd. The statements of Detective Strivebell that if she cooperated and was a “good girl” she would go home, and Ms. Fairbarn’s interpretation of those statements from Detective Strivebell brings in a reasonable doubt that here first video statement was voluntarily. Ms. Fairbarn also argued that her Charter rights were violated, namely sections 10(a) and (b). She contends that she did not know her jeopardy. She was told she was charged with “prescription fraud”. She was never told that she was being investigated for trafficking and conspiracy to traffic. This failure to advise her of the extent of her jeopardy violated her sections 10(a) and (b) Charter rights. The first video, accordingly, must be excluded pursuant to section 24(2) of the Charter.
[28] Mr. Vickerson first took the position that the Crown has not proven beyond a reasonable doubt that both his video statements were voluntary. However, in his submissions he conceded that his statement was voluntary but that he was asked tricky questions which he gave answers, that in hindsight, he should not have given.
[29] The Crown submits that the statements of both defendants were voluntary. The Crown argues that with the statements of Mr. Vickerson, there is no question that the statements were voluntary. He requested to speak to duty counsel and he did so. He did not give any statements until after he spoke with duty counsel. Mr. Vickerson acknowledged that he should maybe not be answering any questions but continued to do so. There is no evidence that he was made any promises or was threatened to give the statements.
[30] With Ms. Fairbarn, as mentioned before, the Crown conceded that it could not meet the onus of proving, beyond a reasonable doubt, that the second statement was voluntary. On the first statement, the Crown submits that Ms. Fairbarn was fully aware that she was making a statement. She declined to speak to duty counsel. She wanted to relieve her conscience of the acts she did and wanted to release the burden. Further, the Crown submits that if the Court does find that the first statement was not made voluntarily, the Court should excise the portion of the first statement the Court finds was not voluntary and the remainder, the Court should grant the Crown’s application and permit the remainder the statement to be presented at her trial.
Voluntariness
Legal Principles
[31] The Crown has the legal onus to prove beyond a reasonable doubt that confessions/statements made by an accused person to the police was made voluntarily.[^1]
[32] Fairburn J. as she then was, in R. v. Brown[^2] examined the law of voluntariness. At paragraph 87, Fairburn J.;
The contemporary voluntariness or confession rule attempts to strike a balance between the interests of the accused and society in avoiding false confessions, while at the same time ensuring that the societal interest in the effective investigation of crime is met.
[33] Fairburn J. continues and explains the two stage approach, where relevant, to the contextual approach when assessing the voluntariness of a statement. The first stage involves assessing if there has been inducements, such as promises or threats, sufficient to overcome the “operating mind” of the accused “to cast doubt of the voluntariness of the statement”. The second stage is assessing whether “police trickery was used in obtaining the statement and, if so, whether the trick or tricks were sufficient to shock the conscience of the community.” (citation omitted)
[34] In R. v. M.D. (a young person)[^3], Watt J.A. succinctly summarized the legal principles of confessions and voluntariness. In dealing with the voluntariness issue, Watts J.A. wrote:
[39] The confessions rule is concerned with voluntariness, broadly defined: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 32. The application of the confessions rule is contextual, requiring a trial judge to take into account all relevant circumstances in order to determine whether the prosecution has established the voluntariness of the confession beyond a reasonable doubt: Oickle, at paras. 47, 68, and 71.
[40] Recording police interviews of persons suspected or accused of crime can be of inestimable value in assessing their voluntariness at trial. Video recordings permit the trial judge to be an ear and eyewitness to the interview tendered for admission: Oickle, at para. 46. The Oickle court was not prepared, however, to consider non-recorded interrogations as inherently suspect: Oickle, at para. 46.
[41] In this province, where a suspect is in custody in a place where recording facilities are available and police deliberately set out to interrogate the suspect without giving thought to the creation of a reliable record of the interview process, the resulting non-recorded statement is inherently suspect: R. v. White (2003), 2003 CanLII 40837 (ON CA), 176 C.C.C. (3d) 1 (Ont. C.A.), at para. 21; R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 160 C.C.C. (3d) 493 (Ont. C.A.), at paras. 65-67. In these circumstances, the trial judge must decide whether there was a suitable substitute for a recording to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt: White, at para. 21; Moore-McFarlane, at paras. 65-67.
[42] The application of the voluntariness rule to individual cases is contextual: Oickle, at para. 47; Moore-McFarlane, at para. 64…
[35] In assessing the “operating mind” of the accused, the fairness of the interrogation process is another value underlying voluntariness.[^4] Trafford J. in Polius stated the value as follows:
The fairness of the interrogation process to the defendant is another value underlying voluntariness. The defendant’s rights to counsel and to silence, as well as police trickery, impact on the fairness of the process leading to the alleged statement. The correlative duties of the police to advise a defendant of his rights to counsel and caution him impact on the fairness of the interrogation…
…The arrest of the defendant did not provide any particulars of the arrest, let alone provide them simple, clear language to facilitate the decision to be made by the defendant as a result of the arrest. The defendant was misled as to the extent of his jeopardy in connection with the alleged murder…The extent of his jeopardy was unknown to the defendant. The extent of the defendant’s actual jeopardy was known by Detective Constable Haines and he, in my view, intentionally misled the defendant for the purposes of obtaining a statement about the alleged murder…
[36] Voluntariness includes an awareness about the extent of what is at stake in deciding to or not to speak to a person in authority.[^5]
Analysis
Adam Vickerson
[37] In reviewing all the circumstances of Mr. Vickerson’s statements, I am satisfied that the Crown has proven beyond a reasonable doubt that his statements were voluntary.
[38] There is no evidence provided on the applications that indicated that Mr. Vickerson was promised or threatened in any way to make a statement. He was given his rights to counsel and the two cautions. Questioning was stopped to allow him to speak to duty counsel. He spoke to duty counsel. After doing so, he decided to answer the questions asked by DC Burd. He was advised of the charges against him. He was aware of his jeopardy. He was aware of the extent of the substance of the charges and choose to answer the questions asked. There was no evidence provided that persuades the Court that the process was not fair to Mr. Vickerson.
Tracy Fairbarn
[39] In reviewing all the circumstances of Ms. Fairbarn’s statements, I am not satisfied that the Crown has proven beyond a reasonable doubt that her statements were voluntary.
[40] The factual circumstances leading of the statements provide this Court with a reasonable doubt as to the voluntariness of the statements. These factual circumstances include:
- The paging of Detective Strivebell to the booking counter when neither Ms. Fairbarn nor Detective Strivebell knew each other.
- The lack of video recording of the booking process.
- The escort of Ms. Fairbarn to the interview room by Detective Strivebell only.
- The release of Ms. Fairbarn into Detective Strivebell custody without the company of PC Alikani.
- The failure of a video recording and/or audio recording of the conversation between Detective Strivebell and Ms. Fairbarn.
- The reason given by Detective Strivebell for the failure to audio and/or video record the conversation.
- The failure of Detective Strivebell of having detailed notes of his conversation with Ms. Fairbarn.
- The initial conversation between Ms. Fairbarn and DC Burd that she did not want a lawyer if she “is not going to jail”.
- The failure of DC Burd to ascertain the meaning of that statement by Ms. Fairbarn and, in addition, that whether or not she is going to jail, she wants to speak to a lawyer.
- The testimony of Ms. Fairbarn on the contents of her conversation with Detective Strivebell is that he told her “to be a good girl” and answer all the questions asked, and that he is the person who would decide to release her and he knew that she wanted to go home to be with her children.
- The testimony of Detective Strivebell that he was annoyed at having been called to the booking desk to see Ms. Fairbarn and yet he still walked her to the interview room.
- The testimony of PC Alikani, Staff Sergeant Stock and DC Burd that they each said to Ms. Fairbarn that she is being charged with “prescription fraud” but the failure to advise Ms. Fairbarn of her jeopardy that she is also being investigated concerning trafficking in Fentanyl.
[41] All these factual circumstances taken together draws into question the “operating mind” of Ms. Fairbarn along with “the fairness of the interrogation process”. Did Ms. Fairbarn appreciate the choice she made to answer the questions posed by DC Burd on the first statement, without promise, threat, and with full appreciation of her jeopardy?
[42] In assessing the circumstances of Ms. Fairbarn’s interaction with the police up to and including the first interview with DC Burd, I am left with a reasonable doubt on whether the answer to the question posed above is in the affirmative. I am not satisfied beyond a reasonable doubt that the statements of Ms. Fairbarn on the first statement were not made without promise or threat and with full appreciation of her jeopardy.
[43] Concerning the second statement, the Crown accepted the position of Ms. Fairbarn. The Crown in effect conceded that it could not prove, beyond a reasonable doubt, that the second interview was voluntary. The evidence on the second statement did not explicitly show that Ms. Fairbarn was given her right to counsel and the primary and secondary caution before the interview process began. In addition, there is an issue on whether she fully appreciated her jeopardy in giving her answers on the second statement and whether the circumstances of the first statement tainted her voluntariness on the second statement. Consequently, this concession of the Crown on the second statement is understandable.
[44] Accordingly, the statements made by Ms. Fairbarn are inadmissible.
Sections 10(a) and (b) of the Charter
[45] Given the decision that the statements of Ms. Fairbarn are inadmissible, I need not deal with whether Ms. Fairbarn’s Charter rights were violated and if so, whether the statements are admissible under section 24(2) of the Charter.
[46] However, I did find that Mr. Vickerson’s statements were admissible. Mr. Vickerson, being self-represented, did not bring a formal application to this Court seeking that his statements be found inadmissible due to breaches of his Charter rights.
[47] The Crown did submit, even though Mr. Vickerson did not bring a formal application, that Mr. Vickerson’s Charter rights have not been breached and if so, under section 24(2)[^6] of the Charter, his statements are admissible, for any breach is minor, the police acted in good faith and that the balance favours society’s right to have the offences adjudicated. Thus, the admission of Mr. Vickerson’s statements would not bring the administration of justice into disrepute.
[48] Sections 10(a) and 10(b) of the Charter encapsulates different rights. Concerning section 10(a), a person is not obligated to submit to an arrest if he does not know the reason for that arrest, and section 10(b) deals with prejudicing one’s legal position by doing or saying something without the benefit of legal counsel.[^7]
[49] In the review of the circumstances of Mr. Vickerson, I do not find that either sections 10(a) or 10(b) were breached. Mr. Vickerson was informed of his right to counsel. He was given the primary and secondary caution. He was informed of the offences by the transportation constable PC Martin, and by DC Burd who went down the list of the offences for which he was charged. Mr. Vickerson was given the opportunity to speak with duty counsel prior to being asked questions. He did speak to duty counsel and said to DC Burd that he was told not to speak. Notwithstanding this advice from duty counsel, Mr. Vickerson answered the questions posed by DC Burd. Mr. Vickerson chose to answer the questions posed.
[50] Consequently, I do not find that in reviewing the evidence presented at the hearing that the interrogation process was unfair to Mr. Vickerson. I do not find any evidence to support that his sections 10(a) or 10(b) Charter rights were breached. I need not deal with the analysis under section 24(2) of the Charter.
Disposition
[51] As stated in my released endorsement of August 9, 2017, my deposition of the applications brought by the Crown are as follows:
- Concerning the application seeking a ruling that the statements of Adam Vickerson were voluntary and may be used at his trial, this application is granted. The statements made by Mr. Vickerson may be used at his trial.
- Concerning the application seeking a ruling that the statements of Tracy Fairbarn were voluntary and may be used at her trial, this application is not granted. The statements of Ms. Fairbarn were not voluntary and may not be used at her trial.
Justice P.W. Sutherland
Released: September 11, 2017
CITATION: R. v. Vickerson, Lambie and Fairbarn, 2017 ONSC 5365
NEWMARKET COURT FILE NO.: CR-15-0004125-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Adam Gordon Vickerson, Gavin Denis Lambie and Tracy Wilma Fairbarn
Defendants
REASONS FOR DECISION on VOLUNTARINESS AND SECTION 10(a) and SECTION 10(b) of the Charter
Justice P.W. Sutherland
Released: September 11, 2017
[^1]: R. v. Oickle, 2000 SCC 38, [2000], 2 S.C.R. 3 (SCC); R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646 (CA); R. v. Polius, [2009] O.J. No. 3070 (SCJ) [^2]: 2015 ONSC 3305 [^3]: 2017 ONCA 841 [^4]: R. v. Polius, supra, footnote 1 [^5]: R. v. Worrall, [2002] O.J. No. 2711 (SCJ), para. 106 [^6]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 [^7]: R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 (CA)