Court File and Parties

COURT FILE NO.: CR-17-0476-00 DATE: 2018/07/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JASON REDMOND and DAVID VOGELZANG Defendant/Respondent

COUNSEL: P. McDermott and J. Meloche, for the Crown M. Wallace for the defendant, Jason Redmond M. Ertel for the defendant, David Vogelzang

HEARD in Brockville: April 4, 9, 10, 11 & 19, 2018

Tausendfreund, j.

REASONS

Overview

[1] Both of the accused are charged that they on March 28, 2015 at the City of Brockville in the East Region:

Count 1: attempted to obstruct the course of justice by interfering with a police investigation, contrary to s. 139(2) of the Criminal Code; and

Count 2: being peace officers with the Ontario Provincial Police, that they committed a breach of trust in connection with the duties of their office by obstructing justice, contrary to s. 122 of the Criminal Code.

[2] The accused, Jason Redmond is further charged that he, on the 28th of October 2015 at the Township of Elizabethtown-Kitley in the East Region:

Count 5: knowingly dealt with a forged document, to wit: a court information, as if it were genuine contract to s. 368(1)(c) of the Criminal Code; and

Count 6: being an official peace officer with the Ontario Provincial Police, committed a breach of trust in connection with the duties of his office by knowingly dealing with a forged document, to wit: a court information, contrary to s. 122 of the Criminal Code.

[3] The accused, Redmond was further charged that he, on July 25, 2015 at the Township of Front Escott in the East Region:

Count 3: trafficked in a substance held out to be a substance included in Schedule II, to wit; cannabis, marihuana under 3 kilograms, contrary to s. 5(1) of the Controlled Drugs and Substances Act; and

Count 4: trafficked in a substance contrary to Schedule II, to wit: cannabis, marihuana under 3 kilograms, contrary to s. 5(1) of the Controlled Drugs and Substances Act.

[4] At the conclusion of the evidence, Jason Redmond agreed that the necessary and constituent elements of the charge detailed in Count 4 were supported by the evidence. He further agreed that it would be appropriate that I make a finding of guilt on this count. I so do. Based on that admission by Jason Redmond and at the request of the Crown, Count 3 be and it is hereby withdrawn.

Facts

[5] This was an undercover operation carried out in the Brockville area between February 2014 and November 2015. The only person to testify in this trial was the undercover officer whose name, for purposes of this operation was Spencer Knoll. I will refer to him in these reasons by that name.

[6] Knoll was the lead investigator in this investigation, but not the only undercover officer. Other such officers held themselves out at various times as friends and business partners of Knoll.

[7] The persona Knoll adopted in this undercover operation was as one who skated close to and at times over the legal line. He arrived in the Brockville area with an interest in acquiring a rustic or “rough and ready” cottage property for hunting, fishing and boating purposes. His father was said to have deep pockets. Accordingly, money would not be an object. He had available at discounted prices, clothing from time to time and on other occasions, any number of bottles of alcohol. Nothing specific was ever offered by him as to the source of this merchandise, nor were questions apparently ever asked of him in that regard.

[8] Prior to the start of this operation, Knoll had been advised by his handlers of his represented background and of the role he should play for the benefit of those with whom he came into contact. He was also advised of certain “persons of interest” and that these included some members of the local OPP detachment. For purposes of making contact, he was to frequent local bars and restaurants.

[9] Knoll first met the accused, Jason Redmond (“Redmond”) on March 6, 2014. Nothing of substance occurred on that occasion. In fact Knoll did not have any meaningful contact with Redmond until January 2015. By then, Redmond knew who Knoll was. Both had exchanged cell phone numbers. Knoll told Redmond that he was in the business of selling liquor at reduced prices and that he was bringing it either from Quebec or from across the St. Lawrence River in the United States. Redmond showed interest in purchasing some of his supplies.

[10] On March 6, 2015 and at the invitation of Redmond, Knoll met him at a local restaurant for dinner. It was there that Knoll first met Vogelzang who was also present at the restaurant that day. Knoll met Vogelzang for a second time on March 7, 2015 at Redmond’s house. Vogelzang was there with his daughter. It appeared that he and Redmond were not only colleagues, but also good friends.

March 28, 2015 – Meeting at Boston Pizza (“BP”)

[11] Shortly after 7:00 p.m. and by text, Redmond invited Knoll to the BP for a beer and snacks. He advised him that Vogelzang would be there as well.

[12] Knoll arrived at 7:46 p.m. Redmond and Vogelzang were already in a booth sitting opposite to one another. Knoll slid into the booth next to Redmond.

[13] After some small talk, the following conversation ensued:

Redmond: It appears you are at the top of the rumour mill. Knoll: Really –what’s that? Redmond: [there are two versions of what Redmond now states. The first is a version urged by the Crown and the second which the defence submits as more appropriate] “Version 1 – you’re a cop” “Version 2 – people think (or say) you’re a cop. Knoll: I’m not a fucking cop. Where is this coming from? Redmond: Vanderwaal is worried – he is a great guy – he is the biggest drug dealer in Brockville – he is a very good friend of mine. Knoll: Is it Rick? [Vanderwaal] I purchased tires from him two days ago and sold him some booze. Redmond: Wasn’t RV [Vanderwaal] it [the rumour] has been going around for two months. Knoll: This is ridiculous. I don’t need people smearing my good name- I am involved in things that aren’t so legal that even my dad doesn’t know about.

[14] Knoll had been surprised by these comments. By then he had become excited and stressed and was loud in his responses.

Redmond: Keep calm. Knoll: You can’t blame me if I react this way – I am accused of being someone that I am not. Redmond: You don’t understand – it’s small town politics. Edgley [friend of Redmond and a known drug dealer] had his cell phone seized by the police in a traffic stop and my name was on it. Redmond: Just because people think it, doesn’t make it so.

[15] Redmond then recounted an earlier rumour that Redmond had been charged with domestic assault. In fact, he had been so charged. However, what was disputed by him were the facts. Redmond then stated that based solely on the fact he was charged, people thought that what was alleged against him had occurred, although the alleged facts were not true.

Redmond: If I had thought that you’re a cop, I wouldn’t have had you to my house.

[16] Redmond then stated that Edgley had told him that Brady [a bartender at a local establishment that Redmond and his friends frequent] suspected Knoll of being a cop. The reason she suspected that Knoll may be a cop was based on her having checked Knoll’s Facebook and noted that he had no friends on it. In response to that comment, Vogelzang said,“that’s ridiculous, I have no friends on Facebook and I’m a cop”. Redmond then stated that he and Vogelzang had known about the rumour for about two months and that they had decided to let matters cool down before they came to him with the rumour. Redmond also stated that Rick Vanderwall had come to him because Vanderwall knew Redmond to be a cop and would be able to find out if the rumour were true.

Vogelzang: If you continue to make a big deal of it, then we might think you are a cop. Have people treated you differently? Just keep on doing what you are doing and no one will treat you differently.

[17] Vogelzang then stated that there are people like Britney who had worked at several drinking establishments in Brockville and who had been “done” before by a “U/C”. When Knoll asked what a “U/C” was, Vogelzang replied “undercover officer”. He then added that people were just being careful in small places like Brockville about who they talk to and who they associate with. Vogelzang then added “don’t worry about it, we don’t think you’re a cop”.

[18] Redmond then stated that he did not care what Knoll did. He then mentioned his friend Edgley who is said to be a well-known drug dealer. Redmond stated that he stays away from Edgley regarding drugs and that he doesn’t talk about drugs with either Edgley or Vanderwall, who is also a known drug dealer. He does not talk drugs with them although they are friends. Redmond then added that if he, Knoll, had brought a big block of cocaine to their meeting tonight that Redmond wouldn’t have cared.

Knoll: I did nothing wrong. I did not involve the two of you in what I did. What have I done? Why are you accusing me?

[19] In response, Redmond vouched for Knoll and stated that he knew that he was not a cop and that if he were a cop, he would not have let him in his house. Vogelzang added that he also knew that Knoll was not a cop.

[20] Both Redmond and Vogelzang then mimicked speaking into their lapel, as though it contained a hidden microphone. Vogelzang then took his phone and scanned it up and down Knoll’s clothing. Knoll’s response was “funny, assholes”. Vogelzang then pointed to Knoll’s watch and asked “if that was an RCMP graduation present?”

[21] Vogelzang then made his way to an ATM within the restaurant, withdrew $100 dollars and gave it to Knoll for the clothing Vogelzang had received from him some days earlier. The meeting broke up about 9:45 p.m. In the parking lot, Redmond pointed to Knoll’s car and asked him if it was Knoll’s “U/C car?” Knoll’s response was “Really?” Knoll gave a bottle of Crown Royal to Redmond who then left in his truck with Vogelzang.

[22] One or two days later, Knoll saw Vogelzang. They met at Redmonds house. Vogelzang had brought his daughter. He told Knoll that prior to their meeting at the BP, he had taken one or two sleeping pills that day and that he had felt drowsy throughout their meeting.

[23] A conversation between Knoll and Redmond on August 16, 2015, was captured by means of a hidden microphone. These two were at Redmond’s house. They spoke about a number of matters, including briefly about the March 28, 2015 meeting at the BP. I note the following part of that conversation between these two concerning the BP meeting. Their conversation touched upon Sam, also an undercover officer, held out to be Knoll’s friend and business partner, and whom Redmond had met through Knoll. These two talked about whether Sam knew that Redmond was a Police Officer. The following is an excerpt of their conversation about this topic:

Knoll:…Sam heard from you or from Matt that you’re a cop. I don’t care, like I’m not gonna say anything. Redmond: Mm hmm Knoll: …I don’t know if he wouldn’t question me because he thinks oh maybe not, but he said all he did ask me has he ever questioned you or ever talked to you about anything, I said no. I said one time like I told I was honest I said one time (unintelligible) fucking asked me you know if I was a fucking cop. Redmond: Mm hmm Knoll: and I said buddy and I said I lost my mind. Redmond: (laughs) yeah you did (unintelligible) Knoll: (unintelligible) because I did. Redmond: well I didn’t ask if you were (unintelligible) Redmond: …Rick had said something to Brady Knoll: Oh Redmond: and then everyone got all their backs (unintelligible) and I said he’s not a cop fuck like I could tell (unintelligible)

October 28, 2015- Re. Forged Document – Counts 5 & 6

[24] By October 2015, the undercover operation was nearing its conclusion. Knoll was given one further task. He was to attempt to have Redmond provide him with a forged court document for which Knoll was to pay him an unspecified sum of money. The plan included a fictitious story that would require Redmond’s assistance in the form of providing a purported court document.

[25] On October 23, 2015, Knoll and Redmond met at a local bar. The two were alone outside when Knoll told him of a predicament that he faced. He told Redmond that one of his sources of income was as a courier of undeclared cash that he brought into Canada periodically from the United States. He did so for unnamed and of course fictitious people in the United States. He had enough of it and wanted out. However, he needed a reason. Within a few days he was to bring $30,000 in U.S. funds into Canada. The plan included his partner, Sam. If the money were to disappear, it would be sufficient to terminate any continued obligation he would have to continue as a courier of undeclared funds for the unnamed people in the U.S. However, he needed a reason for the money to have disappeared. The story to the un-named suppliers of the fictitious money would be that he was stopped by the border police. During the course of being questioned, the police felt that he was lying. They arrested him, searched him and found the $30,000 in U.S. funds which they confiscated. In reality, Sam would keep $23,000 and he $7,000 of those funds. What Knoll needed was a court document to confirm that he in fact had been so charged. That is where Redmond came in. Could he be of assistance?

[26] Redmond agreed that he would try to help. When Knoll told him that he would be paid, Redmond declined and said that he would help based entirely on their friendship. Redmond said that he would try to amend a document which could be found on the internet. Failing that, he would try to obtain a document from his police detachment.

[27] On October 28th, the two met at Redmond’s house. Redmond had found a document on the internet. It was an Information setting out the name and details of a charge laid against that named person in the Central South Judicial Region of Ontario. It was signed and sworn by the informant before a Justice of the Peace. Redmond stated that he could change this document to read that it was the information of “PC Smith” stating that he, as the informant, believed on reasonable grounds that Spencer Knoll had committed the offence of obstructing a peace officer, contrary to s. 129(a) of the Criminal Code. The original signatures of the informant remained except for the date which was changed to October 29, 2015. It was essentially a “cut and paste” operation. Redmond scanned it and gave the changed document to Knoll. Redmond added that it was to look as though Knoll had obtained it from his lawyer. He was to leave the document in his coat pocket as authenticity for the story. Redmond then added that Knoll should use this document only for purposes of showing it to his instructing principals in the United States. He was not to show it to anyone else, as he would then likely be charged with knowingly dealing with a forged document.

[28] Knoll took the document, thanked Redmond and wanted to pay him. Redmond declined. Upon Knoll’s further importuning words that this was a business matter, Redmond declined again. Several days later, Knoll visited Redmond at his house and again offered money for Redmond’s help. Redmond declined again as he had done earlier, stating that he had helped Knoll not for the sake of money, but based entirely on their friendship. At that point, Knoll produced $500 and left it in the lunch bag of Redmond’s child. Redmond saw him do it and said nothing further.

Analysis

Boston Pizza Meeting

[29] There are two different versions concerning what was said at the start of the conversation. Knoll testified after having refreshed his memory from notes he had made of the incident. His evidence was that Redmond stated “we think you’re a cop”.

[30] Knoll was asked about the details of his notes he made of this conversation. Once Redmond and Vogelzang had left the parking lot, Knoll had driven to Kingston, about 75km away. There he was debriefed by the lead investigator. This was a regular occurrence and part of his duties as an undercover officer. The debriefing investigator also took notes. These state:

Redmond told UCO “it appears you’re on the top of the rumour list. We know who you are – people think you’re a cop.”

[31] The debriefing of Knoll by the lead investigator of the project took about two hours. Knoll gave a verbal report of the meeting without the benefit of any notes. By then, Knoll had not made any such notes concerning this meeting. Following the debriefing, Knoll proceeded to his own accommodation in Kingston and started to make notes of his recollection concerning the meeting. He spent about two hours from 1:00 a.m. to 3:00 a.m. on his note taking endeavour. He completed his notes the following morning.

[32] The issue is which of these two versions I accept.

[33] Knoll testified based on a general recollection of the events which he had of the meeting. His evidence of the specifics of the conversation, however, were based on a prior and then contemporaneous review of his notes he had made of the event in the early morning hours of March 29, 2015 and/or some hours later that morning. If I were to accept Knoll’s recollection that Redmond had said to him “we know who you are” – “You’re a cop”, I would find that this comment had the intent and focus of Redmond to ferret out if indeed Knoll was a policeman, or in the vernacular, a cop. Had Knoll been unable to deflect such an accusation and consequently had been either found out or had admitted that he was a cop, it would have been the immediate end of this investigation.

[34] I now turn to the law that would apply to such a finding of fact that Redmond’s comments were intended to determine if, in fact, Knoll was a cop. R. v. David, 2009 ONSC 3007, Trotter, J. (as he then was) stated:

23. … For this offence, the focus is on conduct that might tend to have an impact of the “course of justice.” The “course of justice” is an expression that has a broad meaning. For the purposes of this provision, “course of justice” is not restricted to judicial proceedings that are already afoot. As Mr. Justice G. Arthur Martin said in R. v. Spezzano (1977), 34 C.C.C. (2d) 87 (Ont. C.A.), p.91:

The expression “the course of justice” in s. 127(2) [now s. 139(2)] includes judicial proceedings existed or proposed, but is not limited to such proceedings. The offence under s. 127(2) also includes attempts by a person to obstruct, pervert or defeat a prosecution he contemplates may take place, notwithstanding that no decision to prosecute has been made.

24. … Martin J.A. held at p. 260 [in R. v. May, 1984 CarswellOnt 1158 (Ont. C.A.)]:

Although the offence created by s. 127(2) of the Code is framed in the language of attempt, we think that s. 127 in fact creates a substantive offence, the gist of which is the doing of an act which has a tendency to pervert or obstruct the course of justice and which is done for that purpose.

26. It may be that, for the purposes of determining whether incomplete crimes may be combined to establish liability, it makes sense to characterize s. 139(2) as a substantive offence. However, applying the provision directly, its very terms cast the provision as an offence that is inchoate in nature, in that an obstruction of justice never need come to fruition for liability to attach. … Therefore, in determining whether an offence under s. 139(2) of the Code has been made out, it is not necessary to find that the course of justice was actually obstructed or perverted. It must be shown that the accused wilfully performed acts with the intention that the course of justice be obstructed, whether successful or not.

[35] I now turn to the application of Count 2 to the same scenario.

[36] In R. v. Boulanger, 2006 SCC 32, The SCC addressed the offence of breach of trust by a public officer. It concluded at para. 58 that this offence will be established where the Crown proves beyond a reasonable doubt the following elements:

1. The accused is an official;
2. The accused was acting in connection with the duties of his or her office;
3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

[37] I now turn to the notes made by the lead investigator during the course of debriefing about the conversations during the BP meeting:

“it appears you’re on top of the rumour list. We know who you are. People think you’re a cop.”

[38] The available interpretation of these comments is this:

Redmond states to Knoll that he has heard rumours that Knoll may be a cop. He does not accuse Knoll that he is in fact a cop. He simply relates a rumour that he has heard and then states “we know who you are.” That has two interpretations. One is that Redmond and Vogelzang know that he is a cop. The other interpretation is that Redmond and Vogelzang know that these rumours are untrue and know and accept that Knoll is not a cop.

[39] In deciding whether I should accept the evidence of Knoll of what was said to him at the BP meeting or whether I should prefer the notes of the debriefing officer filed as exhibit 7, I have regard to the following:

a) “people think you’re a cop” may or may not include Redmond; b) When Knoll started to get excited and loud, believing he was accused of being a cop, Redmond tried to calm him down; c) Redmond stated, “you don’t understand- it’s small town politics” d) Redmond stated that Brady had told Edgley that she suspected Knoll of being a cop. She based her belief on the fact that he was on Facebook without the addition of any friends on it. Vogelzang then added, “that’s ridiculous” as he does not have any friends on Facebook either. e) In response to Knoll’s continued questioning about the rumour, Vogelzang said, “if you continue to make a big deal of it, then we might think you are a cop.” f) Redmond vouches for Knoll stating that he knows Knoll is not a cop and if he were, he would not have let him in his house. g) Vogelzang added that Edgley is “tight with Redmond” and that Redmond knows that Knoll is not a cop. h) No specific questions in the form of cross-examination were put to Knoll which might have assisted in answering the question of whether Knoll was or was not a cop. i) Vogelzang stated to Knoll, “don’t worry about it, we don’t think you’re a cop”. j) The August 16, 2015 conversation between Knoll and Redmond was captured by hidden microphone. These two touched upon the BP meeting. Redmond responded: “I didn’t ask if you were” [referring to whether Knoll was a cop]. k) Knoll was asked about the two different versions. His answer was that he was 100% certain that the notes he made accurately reflected the conversation at the BP meeting. I note that Knoll was not asked, nor did he say, without the benefit of having refreshed his memory from his notes, that he had any memory of the particulars of the conversation. I accept that he had an independent recollection of the meeting, in a general sense. However, that alone does not assist me whether I should prefer his version rather than the notes of the debriefing officer. I am somewhat troubled by the purported certainty of his recollection Knoll ascribed to his version of the notes compared to those made by the debriefing officer. There is nothing in Knoll’s evidence which would appear to elevate or give greater credence or justification to why I should prefer his notes rather than the debriefing officer’s version.

[40] I am not satisfied beyond a reasonable doubt that I should accept Knoll’s recollection of the conversation based on his refreshed memory after reviewing notes he had made of the conversation. That leaves me to find that it is more likely than not that Redmond’s comments referred to a rumour in the community that he and Vogelzang were making Knoll aware of. That finding leads me to state that I have a reasonable doubt that the Crown has established the necessary elements of Count 1 and Count 2. Even if I were incorrect in that finding and with respect to Vogelzang, I am not satisfied beyond a reasonable doubt that the Crown has proven that Vogelzang was present at the BP meeting for any reason other than as a colleague and friend of Redmond. Even if Redmond had told Vogelzang prior to arriving at the BP meeting that he, Redmond, intended to put the rumour to Knoll, it would not have elevated Vogelzang’s presence at the meeting to that of a participant in a plan to ferret out if Knoll was or was not an undercover police officer. Counts 1 and 2 will be dismissed.

Counts 5 and 6

[41] Jason Redmond is charged in Count 5 that he on or about October 28, 2015, knowingly dealt with a forged document, to wit: a court information, as if it were genuine, contrary to s. 368(1)(c) of the Criminal Code.

[42] As outlined above, at the request of Knoll, Redmond accessed a court document on the internet. The evidence is unclear whether the original was an information detailing a charge or whether it was a recognizance. In any event, Redmond altered the document into the form of an information detailing a charge. Once altered, the document purported to be based on the information of PC Smith that he had reasonable grounds to believe that Spencer Knoll, on October 29, 2015 committed the offence of obstructing a peace officer, contrary to s. 129(a) of the Criminal Code. Redmond then gave that altered document to Knoll, believing that Knoll wanted to show it to certain persons in the U.S. It was to confirm to them that Knoll had been stopped by the police who then confiscated the entire sum of $30,000 in U.S. funds. All of this was, of course, fictitious. Redmond, however, did not know it. I am satisfied that Redmond proceeded to change the document based on his friendship with Knoll and for no other reason. He declined the offer of payment on four different occasions until Knoll stuffed $500.00 in U.S. funds into a lunchbox belonging to Redmond’s young son. Redmond made neither a responding comment nor did he further resist.

[43] Redmond warned Knoll that he was not to show or use the document for any purpose other than to allow Knoll to confirm his story to the fictitious owners of the $30,000. Knoll’s entire story in that regard was, as mentioned, fictitious. However, Redmond did not know that and believed Knoll would rely on the document and show it to the purported owners of the $30,000. The fact that the entire story was fictitious, I find is of no moment, as Redmond believed that Knoll intended to act on the document in the manner that Knoll had represented to him.

[44] I am satisfied beyond a reasonable doubt that Redmond:

a) knowingly made available a forged document and that he “dealt” with it. (I note that the word “deal” is not defined in the Criminal Code); and that b) Redmond knew that the document was to be used as if it were genuine.

[45] Accordingly, Redmond will be found guilty on Count 5.

[46] With respect to the same transaction on October 28, 2015, Redmond is charged in Count 6 that he committed a breach of trust in connection with the duties of his office, by knowingly dealing with a forged document, to wit: a court information, contrary to s. 122 of the Criminal Code.

[47] The Supreme Court of Canada in R. v. Boulanger, 2006 SCC 32, [2006] 2 S.C.R. 49 stated at para. 58 that:

…the offence of breach of trust by a public officer will be established where the Crown proves beyond a reasonable doubt the following elements:

1. The accused is an official;
2. The accused was acting in connection with the duties of his or her office;
3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt or oppressive purpose.

[48] Redmond found the document in question on the internet. Anyone with access to the internet could have done so. The fact that he was a peace officer, I find had no part to play in the production of the forged document. It may well be that Redmond’s experience as a peace officer assisted him in preparing this document. However, he was not at that time acting in connection with the duties of his office. This represents one of the necessary elements that the Crown must prove beyond a reasonable doubt under s. 122 of the Criminal Code. Accordingly, Redmond will be found not guilty on Count 6.

Tausendfreund, J. Released: July 19, 2018

R. v. Redmond, 2018 ONSC 4487 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JASON REDMOND and DAVID VOGELZANG Defendant/Respondent REASONS Tausendfreund, J. Released: July 19, 2018