Court File and Parties

Court File No.: 19-2153 Date: 2021/02/17 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Crown And: Matthew Villeneuve, Accused

Counsel: Matthew Humphreys, for the Crown Joseph Addelman, for the Accused

Heard: January 25, 29, 2021

Ruling #1 Regarding Voluntariness

Before: Aitken J.

Nature of the Application

[1] Matthew Villeneuve stands charged with seven offences under the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”), arising from events that occurred on October 12, 2018. On October 13, 2020, Mr. Villeneuve entered the following pleas in regard to some of these charges:

• Count 4: Not guilty of overcoming resistance to the commission of an offence under s. 246(a), but guilty of aggravated assault under s. 268(1) of the Code;
• Count 5: Not guilty of attempted murder under s. 239(1) of the Code;
• Count 6: Guilty of break and enter a dwelling-house and committing an indictable offence therein under s. 348(1)(b) of the Code; and
• Count 7: Guilty of obstruction of justice under s. 139(2) of the Code.

[2] An Agreed Statement of Facts, together with exhibits in the form of photographs and surveillance videos, were filed with the court on October 13, 2020. The facts set out in the Agreed Statement of Facts, together with the other exhibits, supported findings of guilt in regard to aggravated assault, break and enter, and obstruction of justice. Under s. 606(4) of the Code, the Crown consented to Mr. Villeneuve’s being found guilty of the offence of aggravated assault (s. 268(1)) instead of the charged offence of overcoming resistance to the commission of an offence (s. 246(a)). Findings of guilt were entered in regard to aggravated assault, break and enter, and obstruction of justice. The charge of attempted murder remains outstanding.

[3] In order to prove beyond a reasonable doubt that Mr. Villeneuve attempted to murder Kerstin Jerome, the Crown wishes to rely on a videotaped statement made by Mr. Villeneuve to Detectives Angela Robinson and Michel Houle of the Ottawa Police Service (“OPS”) on October 13, 2018. The Crown seeks a ruling that Mr. Villeneuve’s statement was voluntary. The Defence takes the position that the Crown has not proven voluntariness beyond a reasonable doubt.

Legal Principles regarding Voluntariness and the Confessions Rule

[4] In R. v. H., 2015 ONSC 1031, at paras. 2 – 5, I summarized the legal principles relating to the concept of voluntariness, and I reproduce that summary here:

Under the common law confessions rule, the Crown must prove beyond a reasonable doubt that any inculpatory statement made by [Matthew Villeneuve] to the police was voluntary (R. v. Oickle, 2000 SCC 38 and R. v. Singh, 2007 SCC 48). The analysis under the confessions rule is contextual. As outlined in Oickle, some of the factors to be considered by the court include whether the police made any threats or promises; whether the circumstances in which the statement was made were oppressive; whether the accused had an operating mind when the statement was made; and whether the police used trickery in order to get the accused to make the statement. The first three factors are generally considered together. The use of police trickery to obtain a confession is a distinct inquiry.

The twin goals of the confession[s] rule are to protect the rights of accused persons without unduly limiting society’s need to investigate and solve crimes (Oickle, at para. 33). It also exists in an effort to ensure that any confession is reliable, as confessions that are not voluntary are more likely to be unreliable.

As Charron J. stated in Singh, at para. 30, in addition to the concern about the reliability of any confession, the complex of values that informs the requirement that a confession be voluntary includes “respect for the individual’s freedom of will, the need for law enforcement officers themselves to obey the law, and the overall fairness of the criminal justice system” (see also Oickle, at paras. 69-70).

The requirement that an inculpatory statement to the police be voluntary in order to be admissible in evidence incorporates the principle that a person is neither obliged to give information to the police nor answer their questions. It has long been recognized that there is an obligation on the police to advise suspects in criminal investigations of their right to remain silent. In determining whether a statement made to the police by a detained person was made voluntarily, an important factor is whether or not the person was appropriately cautioned before the statement was made (Singh, at para. 31, and the authorities cited therein).

Background Context

The Offences and the Arrest

[5] The following facts are taken from the Agreed Statement of Facts filed as an exhibit at the time Mr. Villeneuve entered pleas on October 13, 2020.

[6] At approximately 10:30 a.m. on the morning of October 12, 2018, Matthew Villeneuve entered the Ottawa Technical High School (“OTHS”). He was not a student at OTHS. Mr. Villeneuve hung around in front of the women’s washroom. Kerstin Jerome, a student at OTHS, approached the washroom. She made eye contact with Mr. Villeneuve, but otherwise did not interact with him. She had headphones on. Ms. Jerome assumed that Mr. Villeneuve was waiting for someone.

[7] Ms. Jerome entered the washroom. Within a few minutes, Mr. Villeneuve poked his head in the door and went back out. Then he entered the washroom. He walked toward Ms. Jerome holding a knife in his right hand and told Ms. Jerome that he was not going to hurt her and that she should just go into the stall. Ms. Jerome demanded that he put the knife down and asked him what he was doing. Mr. Villeneuve grabbed Ms. Jerome’s arm and backed her into a washroom stall, cornering her and preventing her from leaving. Ms. Jerome tried to push Mr. Villeneuve away. Mr. Villeneuve began to assault her. Mr. Villeneuve tried to close the stall door and he was struggling with Ms. Jerome. She managed to grab the knife and throw it away into another stall. Ms. Jerome tried to yell for help, but Mr. Villeneuve covered her mouth. He grabbed Ms. Jerome by the throat and punched her more than five times in the head. He put his hands around Ms. Jerome’s throat, applied pressure, and strangled her until she fell to the ground. Ms. Jerome felt that she was about to lose consciousness. Ms. Jerome kept fighting, punching, and kicking to try to free herself from Mr. Villeneuve’s grip. She was afraid that she was going to pass out.

[8] Moments later, a friend of Ms. Jerome entered the washroom and observed Mr. Villeneuve hovering over Ms. Jerome with the knife. Ms. Jerome was on her back on the floor in the doorway of the last stall. Ms. Jerome began to scream for help and continued to kick at Mr. Villeneuve. Mr. Villeneuve lost his balance and fell back into the stall. Ms. Jerome’s friend was able to grab her hand and both ran out of the washroom to Ms. Jerome’s classroom. Police were contacted immediately.

[9] Mr. Villeneuve left the washroom carrying Ms. Jerome’s black leather bag which contained her cellular phone, her identification cards, and other personal items.

[10] The physical injuries suffered by Ms. Jerome were a cut lip, swelling to the side of her face, and bruising to her neck.

[11] At 3:09 p.m. that same day, after receiving numerous complaints of a male pacing in the Canfield Road area wearing pyjamas, police officers attended the area and spoke to Mr. Villeneuve. He identified himself as “Cody Kielec”. He had fresh injuries on his face and was fidgeting with a knife in his pocket. Believing Mr. Villeneuve was Mr. Kielec, who was subject to a probation order with a condition not to possess any weapons, the police officers arrested Mr. Villeneuve for breaching his probation order. In addition to an identification card in Ms. Jerome’s name, Mr. Villeneuve had in his possession numerous credit cards and a driver’s licence in the name of another person who lived on Canfield Road, along with numerous other items that did not belong to him. When the police checked the residence listed on the driver’s licence, they found that the home had been broken into. The police arrested Mr. Villeneuve for the break and enter on Canfield Road and for the robbery of Ms. Jerome.

Mr. Villeneuve’s Behaviour Prior to the Interview

[12] The following facts are taken from both the Agreed Statement of Facts filed at the time of the pleas and from the Agreed Statement of Facts filed on the voluntariness voir dire.

[13] Mr. Villeneuve displayed aggressive and uncooperative behaviour from the time of his arrest until shortly before the interview with Detective Robinson.

[14] When the arresting officer was reading the cautions, Mr. Villeneuve slipped his handcuffs to the front and refused to get out of the police cruiser, stating that he would hurt anyone who touched him. Mr. Villeneuve was forcibly removed from the cruiser and was placed in handcuffs to the rear. Mr. Villeneuve was resistant and combative with police and tried to kick an officer who was trying to put him back into the cruiser. Mr. Villeneuve was placed in a leg restraint. Once he was back in the cruiser, Mr. Villeneuve began aggressively and repeatedly slamming his head against the partition of the cruiser and spitting through the opening into the front seat. He said that he was going to fight anyone who tried removing him from the cruiser once at cellblock.

[15] Once at cellblock at 4:34 p.m., Mr. Villeneuve remained uncooperative, resisting all commands made by special constables and trying to kick and grab at all those involved in his detention. He was placed in a cell for uncooperative individuals for his own safety and the safety of others.

[16] At 5:39 p.m., a special constable observed that Mr. Villeneuve had tied a string around his neck in his cell. Mr. Villeneuve was removed from his cell and found to be “ALL OK” by staff. Mr. Villeneuve was then closely monitored by cellblock staff to ensure that he did not try to harm himself again.

[17] At 6:05 p.m., an officer observed that Mr. Villeneuve had smeared feces on the window of his cell. The officer advised Mr. Villeneuve that he was investigating Mr. Villeneuve for the offence of public mischief because he did not believe that Mr. Villeneuve was “Cody Kielec”. Initially, Mr. Villeneuve refused to provide the officer with any further information as to his identity. At 6:12 p.m., Mr. Villeneuve identified himself as “Alan Kealey” and advised the officer that he was only 16 years of age. He said he wanted to speak to a psychologist because he was going to kill himself. He said he had speed in his system and was “flying”. That was why he was so aggressive. The officer notified the cellblock sergeant about Mr. Villeneuve’s comments regarding harming himself.

[18] By the morning of October 13, 2018, Mr. Villeneuve had calmed down. At 9:15 a.m., he was removed from his cell so that he could speak with duty counsel.

[19] At 11:08 a.m., Mr. Villeneuve appeared in bail court via video, identifying himself as “Alan Kealey”. At that time, Alan Kealey’s step-father was present in court, thinking that his step-son had been arrested. He advised the court and the OPS that Mr. Villeneuve was not, in fact, “Alan Kealey”. By 11:10 a.m., Mr. Villeneuve was back in his cell. At 11:40 a.m., Mr. Villeneuve once again spoke to duty counsel.

[20] Meanwhile, Detective Michel Houle learned that Mr. Villeneuve was not “Alan Kealey”. He and Detective Robinson attended the cellblock area to investigate. As they were observing Mr. Villeneuve in the room where he had spoken to duty counsel, Mr. Villeneuve asked them why they were looking at him. Detective Houle approached the window and asked Mr. Villeneuve his name. Mr. Villeneuve responded that he wanted to talk to the officers first before providing them with his name. Detective Houle advised Mr. Villeneuve that it would be in his best interests to identify himself or he would remain in cellblock. Mr. Villeneuve again stated that he wanted to talk to the officers first. Mr. Villeneuve was then removed from the counsel room and placed in an interview room. Detective Robinson conducted the interview while Detective Houle attended mainly as an observer and for safety reasons.

What is and is not in Dispute

[21] Mr. Villeneuve admitted that no member of the OPS made any promises or threats or offered any inducements to Mr. Villeneuve in an effort to get him to make a statement to Detective Robinson. It is admitted that the circumstances in which the statements were made were not oppressive in any fashion. Finally, it is admitted that the police did not use any trickery in order to get Mr. Villeneuve to make a statement.

[22] It is admitted that upon his arrest on October 12, 2018 for possession of stolen property, Mr. Villeneuve was advised of his right to counsel and of his right to remain silent. Shortly thereafter, when Mr. Villeneuve was arrested for robbery, he was again advised of his right to counsel and of his right to remain silent. On both occasions, Mr. Villeneuve indicated that he understood what he was being told, and he advised that he did not wish to call a lawyer. Once Mr. Villeneuve was at cellblock, the OPS were unable to put him in contact with counsel as a result of Mr. Villeneuve’s unruly behaviour.

[23] A couple of hours later when Mr. Villeneuve advised an officer that he was only 16 years of age, the officer read Mr. Villeneuve his right to counsel under the Youth Criminal Justice Act, S.C. 2002, c. 1, and gave him both the primary and secondary caution in regard to the offences of robbery, break and enter, possession of stolen property, and carrying a concealed weapon. Mr. Villeneuve understood that he could access legal aid for assistance and that he could speak to a parent or other adult. Mr. Villeneuve advised that he wanted to speak to a lawyer but did not want to speak with a parent or other adult, aside from a psychologist. Due to Mr. Villeneuve’s aggressive and out-of-control behaviour, it was not possible to enable him to speak with a lawyer until the following morning at 9:15 a.m., at which point Mr. Villeneuve spoke to duty counsel for approximately 10-15 minutes. Mr. Villeneuve again spoke to duty counsel at 11:40 a.m. the same day.

[24] There is no issue regarding Mr. Villeneuve’s Charter rights. He was advised of, and understood, his right to remain silent and his right to counsel, and he was afforded the opportunity to speak to duty counsel on two occasions prior to the interview in question.

[25] Thus, the only issue to be determined on this voluntariness application is whether the Crown has proven beyond a reasonable doubt that Mr. Villeneuve had an operating mind at the time he made certain statements during his interview with Detectives Robinson and Houle on October 13, 2018.

Videotaped Interview with Detectives Robinson and Houle

[26] Detective Robinson’s interview with Mr. Villeneuve lasted just over half an hour and covers 32 pages of transcript.

[27] The only reason why Detectives Robinson and Houle spoke to Mr. Villeneuve was to try and obtain his real name so that he could be properly processed in cellblock. Mr. Villeneuve had originally told the arresting officers that his name was “Cody Kielec”. When he was about to be fingerprinted, he told the officers that his name was “Alan Kealey”, and that was the name that he used when he appeared in bail court on the morning of October 13, 2018. Following the bail hearing, the OPS learned that “Alan Kealey” was not Mr. Villeneuve’s real name. Detectives Robinson and Houle were working over the weekend and were trying to help the lead investigators on the break and enter investigation and the robbery investigation by obtaining Mr. Villeneuve’s name and amending the documentation to reflect his true name. They had no intention of interviewing Mr. Villeneuve in regard to the substantive offences for which he was arrested – they were leaving that task to the lead investigators. It was Mr. Villeneuve who insisted on meeting with them before giving them his real name. It was Mr. Villeneuve who had an agenda as to what he wanted to accomplish at that meeting.

[28] Mr. Villeneuve started the interview by asking Detective Robinson how she knew that he was not “Alan Kealey” and then explaining what his relationship was with Alan Kealey. Detective Robinson immediately asked Mr. Villeneuve for his name. Mr. Villeneuve refused to provide his name until he said what he had to say to the officers. Detective Robinson told him to stop wasting her time and said she was going to leave and let him sit there on his own unless he identified himself. She explained that he was facing obstruction charges for failing to provide his real name. At this point, Mr. Villeneuve asked Detective Robinson to leave his family alone and not to talk to them – a theme he returned to a number of times during the interview. Mr. Villeneuve negotiated with Detective Robinson for five minutes to say what he wanted to say and then he would tell her who he was.

[29] Mr. Villeneuve immediately started to refer to the robbery and the knife that had been in his possession the previous day. Both Detective Houle and Detective Robinson jumped in to stop him saying anything about the offences until Detective Robinson had given him a further caution about his right to remain silent. Detective Robinson warned Mr. Villeneuve that the room had audio and video recordings running and that anything he said would be disclosed. She gave him the secondary caution. She again told him that she was only there to get his name. Mr. Villeneuve brushed off Detective Robinson’s warnings and launched into a confession regarding the robbery of Ms. Jerome – even outlining all of the evidence the OPS had that supported his guilt.

[30] Mr. Villeneuve provided a chronology of what had happened the previous day. He spoke of the speed he had taken, the voices in his head, and what he was thinking when he attacked Ms. Jerome. He described himself as having serious psychological problems of a long-standing nature and how those problems had never been addressed during earlier periods of incarceration. He spoke about wanting to get psychological help so that he could stop feeling like he wanted to kill someone.

[31] Mr. Villeneuve explained what he had planned to do with the items he had taken during the break and enter on Canfield Road. He bemoaned the fact that he had just gotten out of jail for an earlier car theft and, within five days, he was back in jail. He spoke of loving his family and his kids and of not wanting them involved in any way. He described an altercation a couple of days earlier between himself and his girlfriend but said that he still loved her. It was at this point that Mr. Villeneuve finally provided his name, birthdate, and his probation number to Detective Robinson. He also raised a concern that he was not going to be able to provide the necessary information for the Sex Offender Registry within the mandated seven days following his recent release from jail. Detective Robinson undertook to handle this on his behalf.

[32] Mr. Villeneuve spoke of thinking that he was a sociopath or psychopath, how he had thoughts about doing terrible things to people, but then he regretted it afterward. He said that, although he had had thoughts of hurting other people, he had never done so until Ms. Jerome. He said that he needed help and that throwing him in jail repeatedly did nothing to help him. He said he knew that he was not “NCR”, but he still believed he needed to be in a secure psychiatric environment due to his psychological problems. He provided specific information about when he was first charged with an offence and the times when he had been in jail.

[33] Mr. Villeneuve had a clear idea as to the items that had been seized at the time of his arrest and was able to identify his own and his girlfriend’s cell phones in that collection.

[34] Mr. Villeneuve described being manhandled by the special constables in cellblock when he was being uncooperative the previous day and provided a detailed list of what had been done to him. He described how angry he was because of his treatment and that that was why he had smeared feces on the window of his cell.

[35] Mr. Villeneuve advised Detective Robinson that he had received numerous diagnoses over the years – including PTSD, antisocial behaviour, bipolar disorder, oppositional defiance disorder, and borderline intellectual functioning. He claimed that, although he had been prescribed medication, he had stopped taking it years before. He again reiterated that he needed help and that putting him in jail was not the answer – it would lead to his killing someone. He wanted to be in a secure hospital where he would be treated so that when he got back out into society he would not feel the way he currently did. He went on to say that it was a good thing that he was not let out on bail because he may have hurt someone.

[36] Near the end of the interview, while Detective Robinson was doing something out of the room, Detective Houle returned and explained to Mr. Villeneuve the existence of mental health courts and drug treatment courts in the criminal justice system. Mr. Villeneuve again reiterated that he needed help – not just the occasional program that he had been offered in the past – but treatment in a secure psychiatric facility. In explaining his reasoning, Mr. Villeneuve made reference to assessments that had been done and to a program that he had been kicked out of at Brockville because he had threatened a staff member.

[37] The interchanges between Mr. Villeneuve and Detective Robinson and Detective Houle were normal conversations. Voices were not raised. They were not talking over one another, except at the beginning when the officers were trying to get Mr. Villeneuve to stop talking so that they could caution him. Mr. Villeneuve did most of the talking and the officers listened – asking very few questions, and only when they felt they needed clarification as to something that Mr. Villeneuve had said. The officers did not question Mr. Villeneuve about the offences for which he had been arrested. They simply let him talk and agreed with him when he said that he had mental health problems and needed help.

Analysis

Operating Mind

[38] The video of Mr. Villeneuve’s interview with Detectives Robinson and Houle leaves me with no doubt that Mr. Villeneuve had an operating mind at the time.

[39] It was Mr. Villeneuve who asked for the interview. He controlled it from the start – telling the officers that he would not be providing his name until he had the opportunity to say what he wanted to say to them. Detective Robinson made it clear to Mr. Villeneuve that she was not there to discuss anything other than his name. Mr. Villeneuve refused to restrict the interview to this limited purpose and, instead, insisted on telling them everything that I just summarized above. The key message that he wanted to convey to the officers, and that he reiterated many times, was that he needed help for his psychological problems; otherwise he would continue to commit crimes and would continue to spend most of his life behind bars. The secondary message that he wanted to convey was that he loved his girlfriend and his children and he did not want them involved in any aspect of the criminal proceedings against him.

[40] Detectives Robinson and Houle were relatively passive throughout the interview. Both jumped in to ensure that Mr. Villeneuve knew his rights and did not say anything without realizing that what he said could be used against him. Then they sat back and listened and Mr. Villeneuve drove the interview. They used active listening in the sense of confirming that they understood what Mr. Villeneuve was telling them. For example, Detective Houle went out of his way at the end of the interview to assure Mr. Villeneuve that he accepted that Mr. Villeneuve needed help for his psychological issues. But otherwise, the interview was Mr. Villeneuve’s to direct.

[41] During the course of the interview, Mr. Villeneuve displayed his knowledge of the criminal justice system, his ability to recollect detailed information, and his memory of the various offences that had got him in trouble with the law in the past. The information he provided regarding the subject offences was consistent with the other evidence available to the police. There is no indication that Mr. Villeneuve did not understand what was being said to him, the significance of what he was saying to the police, and that the police could use his statements against him. Mr. Villeneuve was demonstrating the exercise of free will. He chose what to say and when to say it and did so in an unprompted manner and not in response to police questioning.

[42] Defence counsel argued that Mr. Villeneuve babbled away in a rambling, incoherent, non-sensical fashion and that this cannot amount to a voluntary statement. I disagree. First, Mr. Villeneuve’s statement was not incoherent or non-sensical. He presented his case in a logical and rational fashion as to why he did not want to go back to jail where he would sit for years and not get adequate help to deal with his psychological issues. He insisted that he had mental health problems and required long-term treatment in a psychiatric facility to deal with those issues. His argument was compelling. Second, Mr. Villeneuve repeatedly emphasized that he loved his family and did not want them brought into the investigation – he wanted his family to be protected. He conveyed both of these messages clearly and effectively.

[43] It is not in dispute that Mr. Villeneuve has significant mental health problems. That does not necessarily mean that at the time of his interview he did not have an an operating mind. The operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment” (Oickle, at para. 63). It is clear throughout the interview that Mr. Villeneuve knew what he was saying to Detectives Robinson and Houle, and he knew that whatever he said to them could be used against him. He had been warned of this reality at least three times prior to the interview and then again during the interview, and he acknowledged that he understood it. In addition, he had received legal advice on two occasions prior to the interview.

[44] It is also not in dispute that Mr. Villeneuve may have taken speed the day prior to the interview and that may have impacted his behaviour the previous day when he was aggressive, uncooperative, and very difficult to control at the time of his arrest and while he was housed in cellblock. Mr. Villeneuve blamed his difficult behaviour the previous day on the fact that he had taken speed that had been given to him by his girlfriend. He also explained that he had put feces on the window of his cell because he was angry with how the staff in cellblock had handled him – accusing them of unnecessarily roughing him up as they tried to get him into his cell. His explanation of why he acted the way he did was rational. He was not exhibiting any aggressive behaviour before or during the interview with Detectives Robinson and Houle. He was animated and assertive in controlling the interview and saying what he wanted to say, and his level of animation may have reflected that the speed was still having some effect on him – but he did not act out or exhibit any bizarre behaviour. His demeanour during the interview did not raise concerns about whether he was exercising free will at the time. The fact that he was fidgeting at the end of the interview as he was waiting for the officers to return to the room does not change that.

Admissibility of the Statement on Other Grounds

[45] Defence counsel argued that Mr. Villeneuve’s statement should be ruled inadmissible after a weighing of its probative value versus its prejudicial effect. This is an independent matter to raise at trial and is not a relevant consideration on a voluntariness application.

Conclusion Regarding Voluntariness

[46] In conclusion, I am convinced beyond a reasonable doubt that the entirety of Matthew Villeneuve’s statement to Detectives Robinson and Houle was voluntary and represented the operation of his free will.

Aitken J. Released: February 17, 2021