R. v. Angutimarik, 2016 NUCJ 06

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Angutimarik, 2016 NUCJ 06 Date: 20160309 Docket: 07-09-1-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Peter Angutimarik ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): A. Porteous; E. Miller Counsel (Accused): A. Crowe Location Heard: Iqaluit, Nunavut Date Heard: November 29, 2015 Matters: Voir Dire; Criminal Code, s. 245(1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Table of Contents REASONS FOR JUDGMENT 1

I. INTRODUCTION 3 A. Some procedural history 3 II. THE VOIR DIRE 5 A. The facts surrounding the taking of the statement 5 B. The voir dire evidence 6 C. The law respecting the voluntariness of a statement made to police 8 III. THE ISSUE OF THE VOIR DIRE & THE POSITIONS OF THE PARTIES 10 A. Defence position 10 B. Crown position 11 V. ANALYSIS 12 A. Some Preliminary Findings 12 B. The determinant question: Did Peter have an operating mind when he confessed to police? 15 VI. CONCLUSION 20 I. INTRODUCTION A. Some procedural history [ 1 ] The accused, Peter Angutimarik, is charged with murder.

The offence is alleged to have occurred in February 2009. The judge-alone trial is scheduled to commence shortly, on 14 December 2015. [ 2 ] Throughout the proceedings, both parties referred to the accused as “Peter.” For the sake of convenience, I will do likewise. [ 3 ] As part of the police investigation into this incident, Peter was interviewed. During the course of the interview, he provided an inculpatory statement to the police in which he confessed to the killing. [ 4 ] In late 2010, a voir dire commenced respecting the admissibility of Peter’s statement to police.

The issue was simply the voluntariness of the statement; there were no Charter issues involved. It has since limped along in various adjourned segments from 2011 to 2012, with Peter’s first lawyer at the helm, in order to facilitate witness testimony. Until just recently, it has existed in a sort of legal limbo. Essentially, nothing of substance had occurred between the spring of 2012 and the spring of 2015. [ 5 ] The voir dire was completed only recently, in September of 2015. The evidentiary portion was completed in April 2015, and I heard Counsel’s submissions in September 2015.

Last month, as a courtesy, I advised the parties of my ruling respecting the voir dire and indicated that I would follow shortly with some brief reasons. The reasons for my decision are provided below. [ 6 ] This case has dragged on for so long partly because Peter has changed lawyers twice: the first change occurred after his lawyer was appointed to the bench and the second resulted from a breakdown in the solicitor-client relationship.

Peter’s second defence attorney took over in the spring of 2012, and withdrew last year. [ 7 ] The other cause for this state of affairs was the position of Peter’s second Defence lawyer that a forensic psychological profile was necessary for the Defence’s case. Counsel was eventually able to muster such expert opinion evidence. Peter was both examined and tested and the results were finally placed before the Court. [ 8 ] The painstakingly slow administrative process involved in getting to this point has been a source of frustration to all parties

concerned, including the second Defence lawyer who had laboured so persistently to arrange for the forensic testing. Forensic testing was not completed until December 2013, and the results were not made available to the Crown until January 2014. This stunningly slow process has been documented as a part of the record in these proceedings. [ 9 ] The eventual release of the forensic testing results to the Crown resulted in yet another hitch in the procedural timeline.

Having seen the results of the testing, Crown Counsel felt compelled to retain their own expert in order to properly examine the Defence expert’s findings. Accordingly, after a considerable period of waiting for the Defence to line up its forensic evidence, the case was delayed for another nine months in 2014, while Crown Counsel retained and consulted their forensic witness. While the Crown was eventually prepared to present its forensic testimony in reply to the Defence case, it ultimately elected not to call any such testimony.

I pause to note that the Crown decision in this regard has had no impact whatsoever on my decision in this voir dire. [ 10 ] Eventually, in September 2014, the case was brought forward to be spoken to and a continuation date was set for April 2015. It was at this point, however, that Peter fired his second lawyer due to a breakdown in the solicitor-client relationship. [ 11 ] Except in rare cases, the particulars surrounding a breakdown of the solicitor-client relationship are not generally the Court’s business.

In this case, however, it was clear that Peter’s frustration with the further delay and the prospect that his lawyer might be unavailable until sometime after April 2015, were operative factors in the breakdown. [ 12 ] I pause here to note that, while the primary driver behind the delay in this case has been Counsel’s attempt to secure expert evidence (Defense Counsel more so than Crown), there have been other unremarkable, but legitimate factors that have continued to impede the setting of a continuation date, even after the expert evidence had been mustered by both sides.

One such factor was the availability of witnesses and counsel, particularly Defence Counsel, which has proven to be problematic. [ 13 ] Since Peter’s third and current lawyer took over in the fall of 2014, however, the voir dire has proceeded seamlessly though both the final evidential stages and through Counsels’ submissions. With the graceful agreement of the Crown, Defence Counsel was able to facilitate the presentation of expert testimony via telephone. Accordingly, at this point, the parties only await this Memorandum of Judgment respecting my reasons for the voir dire ruling.

As I noted earlier, progress has been made in that the trial date is now set for 14 December 2015. II. THE VOIR DIRE A. The facts surrounding the taking of the statement [ 14 ] The incident which gave rise to the offence took place in one of Nunavut’s small communities. On the day of the incident, at around 5 a.m., the police responded to a call at Peter’s house. At the time, a third party, Jonah, was living there as well.

When the police arrived, the only people in the house, apart from the deceased, were Peter and Jonah. [ 15 ] It was observed that the deceased’s throat had been cut. [ 16 ] The police took both Peter and Jonah into custody. They were placed in separate detachment cells. Initially, the police were of the view that both Peter and Jonah may have been responsible for the death and began to question them accordingly.

As the day wore on and the investigation continued, however, the police eventually lost interest in Jonah as a possible perpetrator. [ 17 ] During the investigation, Peter was questioned twice - once in the morning and then again in the late evening – and despite being confined, he was properly fed and otherwise taken care of. According to Peter’s testimony, when he was not eating he would spend most of his time simply sleeping. [ 18 ] The second interview lasted 2 hours, from approximately 10 p.m. until midnight.

It was conducted by the officers of the Royal Canadian Mounted Police [RCMP] Major Crime Unit [MCU], who had arrived in the community in the early afternoon. [ 19 ] It is this second interview which is the subject of the voir dire.

[ 20 ] Peter engaged the police early in the interview process, responding to their questions and suggestions by saying that another person was responsible for the killing. He also requested to be returned to his cell on four occasions throughout the course of the interview. On one such occasion, he stated something to the effect of: “if we’re done here, I’d like to go back to my cell.” The police denied these requests and persisted in their questioning. [ 21 ] After some two hours of this, Peter admitted that he had killed the deceased.

The police then offered him the opportunity to write a letter to the deceased’s family to express his sorrow. Peter declined. [ 22 ] All of Peter’s interactions with the police have been recorded, either on video or audio, and none of this is in issue between the parties. B. The voir dire evidence [ 23 ] The police officers who took the statement were questioned at length by Peter’s first lawyer. As the voir dire developed and moved to its concluding phase, however, it became clear that this police testimony was simply not in issue.

Accordingly, it does not merit much consideration except where necessary. [ 24 ] The important evidence on the voir dire was provided by the Defence’s two forensic experts. The Court heard from Dr. Percy Wright, a clinical psychologist associated with the Ontario Centre for Addiction and Mental Health, and from Dr. Robert Sheppard (MD), a forensic psychiatrist. The Court was also provided with a comprehensive report from each of the experts. [ 25 ] It is not in dispute that both of these witnesses – Dr. Wright as well as Dr. Sheppard – are accomplished and accepted experts in their respective fields.

As such, they were entitled to provide opinion evidence respecting Peter’s mental state at the time he provided the confession to the police. [ 26 ] Dr. Sheppard interviewed Peter on two occasions: once in November and then again in December of 2012. He also viewed the video recording of Peter’s police interview. [ 27 ] Dr.

Sheppard was concerned that, because Peter’s history was essentially a self-report that included one particularly important comment regarding his mother’s pre-natal exposure to alcohol, he might be suffering from some subtle cognitive impairment which might not necessarily be detected in a clinical interview context. For this reason, Dr. Sheppard referred Peter to his colleague, clinical psychologist Dr. Percy Wright, for further assessment and psychometric testing. Dr. Wright met with Peter once for a personal interview, after which Dr.

Wright’s colleague, a psychometrist, met with Peter twice for the purpose of running several clinical tests. These tests occurred in June and July of 2013. [ 28 ] Despite refusing to participate in the first round of testing, Peter thereafter completed the process with some enthusiasm. Dr. Wright described Peter as “quite interpersonally engaged” during the interview itself {Exhibit D-2, Dr. Wright’s Report, 11 Nov 2013, p 2}. [ 29 ] Peter also testified at the voir dire, in addition to the experts. Peter told the Court, as he had Dr. Sheppard and Dr.

Wright, that he had found the police questioning to be “torture.” [ 30 ] Peter testified that the only reason he had confessed was because he believed it was the only way to make the questioning stop.

He testified that he did not believe the police would stop questioning him until he gave them “what they wanted” and, as a result, he gave them a false confession – a lie {Voir Dire Transcript of Peter Angutimarik, 30 April 2015, pp 15-16}. [ 31 ] Peter also testified that, although he was aware he was confessing to a murder, he was confident that the truth of his innocence would emerge as the police investigation continued.

When asked in court, however, about what he thought might happen if he did not confess – that is, if did not tell the police what they wanted to hear - Peter testified that he thought the police would have probably just let him go.

[ 32 ] Throughout his testimony, Peter displayed a good understanding of his legal rights and liabilities, including the right to remain silent, the fact that he was not required to talk to the police, and the fact that whatever he might say could be used in court later. It is clear from the reports provided by Dr. Wright and Dr. Sheppard that Peter has had extensive experience dealing with the police over the years. C. The law respecting the voluntariness of a statement made to police [ 33 ] At the outset, I should say that the law respecting voluntariness is not in issue between the parties.

The criteria for determining voluntariness should nevertheless be reviewed in order to give the proper context to the one criteria which is in issue: whether Peter had a fully operating mind at the time he gave the statement to the police. [ 34 ] Before an accused’s confession to the police may be admitted into evidence, the Crown has the onus of establishing, beyond a reasonable doubt, that the confession was made voluntarily.

The legal notion of voluntariness must not be confused with what many people, including forensic psychiatrists and psychologists, understand to be the everyday common-sense meaning of the word. [ 35 ] The Crown is not required to show that a suspect wanted to give a statement to the police. Neither is the Crown expected to show that the accused is actually interested in making a confession of his or her own accord.

Very few people, if any, are ever interested in so doing. [ 36 ] Legal voluntariness does not equate to a stress-free environment and the Crown is not required to show that any such stress-free environment existed at the time the statement was given. Plainly speaking, police interviews are hardly ever stress-free from the perspective of the person being questioned. [ 37 ] In R v Oickle, 2000 SCC 38 , 147 CCC (3d) 321 [Oickle] , the Supreme Court of Canada articulated precisely what the Court must consider when determining the voluntariness of a statement: 1. Whether any threats or promises were made; 2.

Whether the accused was subject to oppressive conduct by the police; 3. Whether the accused had an operating mind at the time he was being questioned and made the statement or confession; and 4. As a discreet area of inquiry, whether there was any police conduct during the interview, such as untoward trickery, following which the court’s admission of an accused’s statement into evidence would shock the community. [ 38 ] The Crown’s obligation to establish voluntariness requires counsel to demonstrate that each of the 4 criteria has been satisfied. More precisely, the Crown must show that: 1.

There were no threats or promises made; 2. There was no oppressive police conduct (and thus no inherent danger of a lurking false confession); 3. The accused did, in fact, have an operating mind; and finally, 4. There was an absence of any outlandish or shocking police behavior in obtaining the confession.

[ 39 ] Of particular importance in this case is the criteria requiring Crown Counsel to establish that the accused had an “operating mind” when he confessed to police. Oickle is quite clear on the meaning of the phrase “operating mind.” At paragraph 63, the court states: “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.’” III. THE ISSUE OF THE VOIR DIRE & THE POSITIONS OF THE PARTIES A.

Defence position [ 40 ] Defence Counsel, in characteristic candor and judgmental fairness, has made it clear that the only aspect of the Oickle criteria at issue in this case is whether her client, Peter, had an operating mind at the time of his confession. [ 41 ] I am aware that any reasonable doubt about whether the accused had an operating mind must go to the Defence, in which case the statement or confession will be excluded from evidence. Defence Counsel has conceded that the other aspects required by Oickle , noted above, have been properly satisfied by the Crown.

Specifically, the Defence has conceded that: no promises or threats were made; her client was not subjected to oppressive conduct by the police; and, there was no outlandish police behaviour in obtaining the statement that would shock the community. [ 42 ] The only issue that remains is the question of whether Peter was fully aware and appreciative of the consequences of what he was doing when he made his confession to the police.

I take special precaution to note that Defence Counsel [Counsel], as she made argument before me, was careful to specify that there had been no oppressive conduct by the police. [ 43 ] The nuanced aspect of the Defence argument respecting the “operating mind” is, as I understand it, as follows: on the one hand, Counsel concedes that the police conduct in this case falls short of oppressive, but, on the other hand, the conduct of the police in conducting the interview is not irrelevant. [ 44 ] While Counsel also concedes that the police behavior falls short of conduct worthy of judicial denouncement, she is clear that the police method of questioning in this case, particularly the persistent use of the “Reid” technique accusatorial method, created a tremendous stress on her psychologically vulnerable client.

As a result of this stress, Counsel contends that her client was brought to a point where he was neither fully aware nor capable of understanding what he was doing. [ 45 ] The Defence position is that there is medical and forensic support for the proposition that Peter suffers from a clinically diagnosed frailty.

This subtle cognitive dysfunction, which has a neurological base and may involve Fetal Alcohol Spectrum Disorder [FASD], manifests itself in both impulse control as well as the inability to plan, or measure, and foresee, the consequences of one’s actions. [ 46 ] Counsel says that her client’s ability to resist police questioning was clinically impaired to the point where he was unable to control the impulse to tell them what they wanted to hear. Essentially, Counsel says, his will was overborne to the point where the danger of a false confession was great.

Counsel argues that this subjective question – whether or not Peter had an operating mind when he made the confession – is very much at issue in this case. The Court should therefore have a reasonable doubt as to whether or not Peter had an operating mind and exclude the confession from evidence at trial. B. Crown position [ 47 ] The Crown reminds the Court that in real or true cases of stress-induced false confessions, the police behavior is so oppressive and persistently accusatorial that the spirit and will of the suspect is overborne.

In such cases, the suspect may actually begin to believe what the police officers are saying and this belief may eventually result in a false confession. [ 48 ] In this case, however, the Crown points out that Peter’s will was not overborne in the traditional sense. The Crown says that, to the

contrary, the testimony of both Peter and Dr. Sheppard clearly demonstrates that Peter not only maintained his free will, but exercised it. Furthermore, Crown Counsel contends that Peter did so in a context that, from any objective standpoint, was nothing more than a routine police interrogation. [ 49 ] The Crown says that Peter’s reasoning for giving the confession – that he did so to end the “torture” – is simply not credible. [ 50 ] The Crown says that, from viewing the video recording, the police conduct during the interview was not by any means torturous.

Nor is there any reason, says the Crown, to believe Peter when he says that he felt tortured. The Crown suggests that Peter is simply not a credible witness. To support this contention, Crown Counsel points to two assertions made by Peter during his testimony. First, when he says he never told Dr. Wright that he was a “good liar” {Voir Dire Transcript of Peter Angutimarik, 30 April 2015, p 31}; and second, when he says Cpl.

Bruschette came to the cell block on a number of occasions to threaten that police questioning would not stop until he confessed. [ 51 ] Finally, with respect to the medical and forensic evidence, the Crown says that whatever impulse control deficiency Peter may have, he is overall a fairly competent and normally functioning individual.

In support, Crown Counsel points to Peter’s ability to control any impulse he may have had to write a letter to the deceased’s family to express his sorrow. [ 52 ] Crown Counsel contends that it is clear, from Peter’s own testimony, that he knew what he was doing when he spoke with the police. It is also clear that Peter knew that anything he said could be used against him in court. Accordingly, the Crown submits that the operating mind criterion, as articulated in Oickle , has been met. V. ANALYSIS A.

Some Preliminary Findings [ 53 ] As a starting point, I will make some preliminary observations and findings of both fact and law. [ 54 ] First, in terms of the Oickle voluntariness criteria and in light of the concessions made by the Defence, I make the following findings: 1. There were no threats or promises made by the police during the course of the interview with Peter; 2. There was no police misconduct during the course of the interview, such as untoward trickery, which would shock the community; 3.

The conduct of the police during the course of the interview was not oppressive to the extent that the Court should be cautious or wary of admitting the statement into evidence. [ 55 ] It is now, of course, standard practice that when the MCU interviews the primary suspect in a homicide case, they will video record the interrogation for presentation to the Court. This is a good practice to have, as a picture is often worth more than a thousand words of descriptive testimony and eventual argument about what, in fact, took place. [ 56 ] I have, of course, had the benefit of viewing the recorded interview.

In my view, the police interview with Peter is best characterized as routine. The police were firm and persistent and made no bones about telling Peter, in a clear and matter-of-the-fact fashion, that they believed him to be the perpetrator of the crime. I am simultaneously struck, however, by how soft-spoken and patient the police were when attempting to convince Peter to admit to the crime. [ 57 ] While it is clear that Peter was under stress during the interview, he exhibited no more stress than any other suspect might have been expected to exhibit in the same circumstance.

[ 58 ] In my view, until the point where he began to cry and confessed to the crime, Peter displayed not one objective behavioral sign that would indicate that he felt the questioning to be “torture.” To the contrary, Peter initially engaged the police and denied responsibility for the crime in a fairly unremarkable fashion. Eventually, the police persuaded him to take advantage of the opportunity to express his sorrow for what he had done.

It was at this point that Peter began to cry and confessed to the crime. [ 59 ] It is not unusual for a suspect to cry when they admit to a crime during the course of a police interview. It is my view, however, that the fact that an accused person begins to cry as they confess to a serious crime is not, in itself, any indicator that their confession has come about as the result of a torturous interrogation process. The question of whether the interview process itself was torturous is a separate inquiry.

The question of whether the suspect felt it was torturous or had an objective reason for such feeling is also a separate inquiry. [ 60 ] Finally, concerning Peter’s position that the interview was a tortuous one, his only comment which shed any light on such an assertion is, as I mentioned earlier, when he essentially tells the police: “if we are done here, I’d like to go back to my cell.” [ 61 ] Further, I find that the persistence of the police in continuing to question Peter despite his requests to return to his cell is not determinative of the voluntariness question.

The law in this regard is quite clear: a suspect has the right to remain silent. He does not, however, have the right to be free of police questioning. The police are entitled to persist. [ 62 ] The courts are, of course, careful to assess persistent and repetitive police questioning when ascertaining, in each individual case, whether the questioning has crossed the line into oppressive conduct. It must be noted that each case of this kind is assessed on its own unique set of facts. [ 63 ] In this case, there is, in my view, nothing remarkable about this particular police interview. Even Dr.

Sheppard who, unlike Dr. Wright, had viewed the video, described the process as routine. [ 64 ] The evidence clearly shows that Peter was well cared for during the time leading up to the interview. According to his own testimony, when he was not eating, he was sleeping. I also fail to see the late hours during which the interview was conducted as problematic. The police did not intentionally wait until the wee hours of the morning to interview Peter because he would perhaps be more vulnerable and fatigued at that time.

It is clear that the late-night interview was attributable to the fact that, from their arrival in the community up until the time of the interview, the MCU had been properly investigating the background of the crime. [ 65 ] As a final point, I would observe that a two-hour interview is, by homicide standards, relatively short. [ 66 ] Throughout the interview, Peter presented as both alert and attentive. Accordingly, although Peter characterizes the interview process as torturous, I find to the contrary – it was not.

It is crystal clear that, from any objective or common sense perspective, the interview cannot be properly characterized as torturous. B. The determinant question: Did Peter have an operating mind when he confessed to police? [ 67 ] Peter’s first lawyer had retained both Dr. Sheppard and Dr. Wright with a view to providing expert forensic evidence which might help inform the question of whether Peter had, as a matter of law, a fully operating mind while being interviewed by the police. Both experts addressed Defence Counsel’s initial concerns in the opening paragraphs of their respective reports. [ 68 ] Dr.

Wright wrote as follows: …You [Defence Counsel] had referred Mr. Angutimarik for an assessment of his cognitive functioning, […] you specifically requested an opinion as to whether he suffers from Fetal Alcohol Spectrum Disorder (FASD) as well as any other cognitive limitation which may have prevented him from having an operating mind at the point he gave the confession […] {Exhibit D-2, Dr. Wright’s Report, 11 Nov 2013, p 1}.

[ 69 ] Dr. Sheppard wrote: “The present issue, as I understand it, is Mr. Angutimarik’s mental state at the time of his statement to police […] and how this might have impacted the voluntariness of his statement” {Exhibit D-4, Dr. Sheppard’s Report, 4 Dec 2013, p 2}. [ 70 ] Peter was 26 years old at the time of his interviews and assessments by these forensic specialists. The interviews occurred between 2012 and 2013. Much of the interview process involved self-reporting by Peter regarding his early up-bringing and experiences as both a teenager and a young adult. [ 71 ] In terms of diagnostic findings, Dr.

Wright found that Peter’s overall IQ was in the low average and that his verbal comprehension was in the average range. Dr. Wright was careful, however, to note that there are cultural bias issues with the IQ testing process that may result in test results that show a lesser-than-true IQ. In fact, Dr. Wright noted that Peter’s understanding of abstract concepts was one of his strengths. [ 72 ] Dr.

Wright made particular note of Peter’s ability and accomplishments in mathematics from a young age, as well as his ability to learn and comprehend English at a fairly sophisticated level despite growing up in an isolated community where Inuktitut was the dominant spoken language. Dr. Wright described Peter as interpersonally engaged during the interview he conducted. He also made particular note of Peter’s interest in and knowledge of current world affairs. [ 73 ] In terms of the specific question of whether Peter suffers from either FAS or FASD, Dr. Wright was clear.

He stated: Given his academic progress and IQ score he cannot be suffering from FAS. There are some aspects of his history and presentation that suggest some degree of FASD may be present. They include reported maternal alcohol use during pregnancy, […]. However there are aspects of his history and presentation that suggest that if FASD is present it may not be particularly severe. These include his overall IQ and verbal comprehension strength and related facility with abstract reasoning {Exhibit D-2, Dr. Wright’s Report, 11 Nov 2013, p 5}. [ 74 ] Dr. Wright then went on to say that, “In cases such as Mr.

Angutimarik’s, it is difficult to ascribe a certain root cause to a cognitive or behavioral deficit given that he does not display markedly impaired cognitive functioning overall” [emphasis added] {Exhibit D-2, Dr. Wright’s Report, 11 Nov 2013, p 2}. [ 75 ] In light of this comment, the question to be answered is what factor(

s) Dr. Wright believed to be problematic in trying to determine whether Peter had an operating mind at the time of his confession. Dr. Wright noted that, in his early childhood, Peter had displayed difficulties controlling impulsive behavior. This could be attributed to his mother’s alcohol consumption during pregnancy, according to the following comment made by Dr.

Wright: […] given the early onset of his difficulties withholding impulsive behaviour and his exhibiting this on neutral ability testing when in a calm state I am relatively certain that it has a neurological basis, which may involve FASD. {Exhibit D-2, Dr. Wright’s Report, 11 Nov 2013, p 6}. [ 76 ] Dr.

Wright’s report concludes with an opinion as to the ultimate question posed by Peter`s lawyer: In terms of the ultimate question, as to whether he was able to understand the nature and consequences of his confession, I would have to say that yes he understood it, both due to his experience with previous charges and his overall good understanding of people having different agendas.

However there is a very real risk that this inherent tendency to respond immediately to immediate surroundings, I.e., to end the interview, based on what is in front of him and difficulties with planning ahead would impact on his ability to maturely reflect on the consequences of such a confession. [emphasis added]

{Exhibit D-2, Dr. Wright’s Report, 11 Nov 2013, p 6}. [ 77 ] As Dr. Wright alludes, Peter has had extensive dealings with the police and knows that the police agenda is to elicit a confession which can be used in court. Accordingly, Dr. Wright was therefore of the view that Peter understood both the nature and the legal consequences of his confession – respectively, that he was confessing to murder and that the confession could be used in court. [ 78 ] Dr. Wright’s reservations regarding Peter’s ability to understand what he was doing when he confessed is related to Peter’s ability to maturely reflect upon the consequence(

s) of his decision. [ 79 ] In my view, this notion of mature reflection speaks to whether an accused or a suspect has the ability, capacity, or interest, when speaking with the police, to think about any future, strategic aspects of making a confession. [ 80 ] I accept Dr. Wright’s conclusions. However, the problem for the Defence is that the law does not require an accused to maturely reflect upon the strategic consequences of confessing to a crime.

The law only requires that the accused be aware of and understand the legal consequence of a confession – namely, that whatever he tells the police can be used in court.

From this perspective, it appears that the question of whether a person has some minor degree of neurologically based cognitive disability which might impair their ability to measure the strategic consequences, or whether they simply failed to maturely reflect upon the strategic aspects of a confession, is simply a red herring. [ 81 ] Peter testified that he gave a false confession because he wanted to put an end to the “torture” of police questioning.

He further testified, however, that he had not been worried about making a false confession because he was confident that the truth of his innocence would somehow emerge during the course of the police investigation. Ironically, if one were to accept this testimony, it would appear that Peter did, in fact, display some measure of mature reflection upon the consequences of his confession.

Essentially, his testimony that he believed his confession would be shown to be false by the ongoing investigation suggests a level of mature reflection upon the strategic aspects of making such a confession. [ 82 ] Such analysis, however, merely begs the ultimate question – namely, whether Peter’s confession, given his peculiar psychological make-up and challenges, was stress-induced.

In this regard, it is important to return to some first principles. [ 83 ] In the classic case of a stress-induced confession, the court would be faced with a situation wherein the accused admits to a crime at the very end of a psychologically oppressive police interview. The court would approach the legal voluntariness of such a confession with caution. The danger of such a confession is the prospect that the accused will eventually come to believe that the details the police are suggesting to him are true.

In such circumstances, the court would rule against the voluntariness of the confession because of the oppressive police conduct; however, the distinction between this discreet aspect of voluntariness respecting police conduct and the requirement that an accused must have a fully operating mind is, in such a case, of little difference. At the end of the day, the stress- induced confession is ruled inadmissible because the accused’s will to resist has been overborne. [ 84 ] Dr. Sheppard was of the view that Peter’s confession was not one where his will to resist police questioning was overborne. Indeed, Dr.

Sheppard is clear that Peter simply made an intentional choice to exercise his free will and give a confession in order to end the police questioning. In this regard, Dr. Sheppard made the observation that Peter’s “thinking appeared reasonably organized; he was able to communicate with me in a coherent and understandable fashion. There was no evidence of gross cognitive impairment” {Exhibit D-4, Dr. Sheppard’s Report, 4 Dec 2013, p 5}. [ 85 ] Dr.

Sheppard did note, however, that Peter “does suffer from a degree of executive dysfunction[,]” and in particular, that “his ability to cope with stress is likely impaired.” In terms of a clinical psychiatric diagnosis, Dr. Sheppard observed that Peter manifests “prominent features of both Borderline Personality Disorder and Antisocial Personality Disorder” {Exhibit D-4, Dr. Sheppard’s Report, 4 Dec 2013, p 5}. [ 86 ] According to Dr. Sheppard, this clinical diagnosis means that Peter is a vulnerable individual who would have trouble coping with stress {Exhibit D-4, Dr.

Sheppard’s Report, 4 Dec 2013, p 7}. [ 87 ] Dr. Sheppard also offered the following commentary as to how Peter’s various challenges might have factored into the confession he eventually gave to the police:

His description of the symptoms of anxiety which he states that he was suffering at the time of the police questioning is, in my opinion, credible. It seems plausible, to me, that Mr. Angutimarik was under high levels of stress at the time, that his usual coping mechanisms were overwhelmed by the circumstances in which he found himself, and that the anxiety symptoms which he described emerged for this reason. Some dissociative symptoms, triggered by stress and high anxiety, may have been part of this picture. Further, Mr. Angutimarik does suffer from subtle cognitive dysfunction.

As such he would be expected to have difficulties with impulse control, and with planning, and measuring and foreseeing the consequences of his actions. His confession to police occurred in this context. To what extent the voluntariness of his statement may have been affected is the legal issue to be determined [emphasis added] {Exhibit D-4, Dr. Sheppard’s Report, 4 Dec 2013, p 8}. [ 88 ] I note, in particular, the last sentence from the above paragraph, wherein Dr.

Sheppard is precise in stating that the question of how his findings and observations affect the voluntariness of Peter’s confession is “the legal issue to be determined.” It is clear that Dr. Wright is keenly aware that this issue of voluntariness is a legal matter and not a clinical one. [ 89 ] I respect and accept the findings of both Dr. Wright and Dr. Sheppard. They are eminent practitioners in their respective forensic fields.

As such, their clinical findings and observations are helpful in informing the Court upon this ultimate issue which I have to decide – namely, whether Peter’s confession to police was, as a matter of law, a voluntary one. VI. CONCLUSION [ 90 ] In terms of whether Peter had a fully operating mind at the time he gave his statement to police, I would make the following observations: 1. Peter presented and gave testimony in court in a clear and coherent fashion. His verbal acuity in English is impressive.

Indeed, if one were to use young men of Peter’s age who come before this court on a regular basis as comparators, Peter’s ability in English could be fairly described as sophisticated. 2. On balance, despite his challenges as described in reports of Dr. Wright and Dr. Sheppard, Peter generally appears to be a fairly unremarkable and normally functioning individual. Indeed, both doctors were impressed with his ability to communicate in a coherent manner. 3. It is obvious that Peter suffered from both anxiety and stress during the police interview.

The video, however, shows his response to be remarkably indistinct from the many other suspects whom the Court has observed in similar circumstances. 4. Clinically, Peter does have some degree of cognitive or executive dysfunction, which has a neurological base or antecedent. Specifically, this may impair his ability to control impulsive behavior and to maturely reflect upon the consequences of such behavior 5.

With respect, there is simply no legal traction to the proposition that Peter’s psychological profile, the challenges he faces, or even the minimal cognitive dysfunction from which he suffers, had any impact on his ability to comprehend that anything he said to the police could be used in evidence against him. 6. It is clear that Peter has a good understanding of his legal rights. 7. It is also clear that, when speaking with the police, Peter knew that whatever he might say to them could be used against him in Court. 8.

Thus, at the time Peter made his confession to police, he had a fully operating mind as required by Oickle . Accordingly, the Crown has proven, beyond a reasonable doubt, that the statements made by Peter to police were, as a matter of law, voluntary.

[ 91 ] As this was the only live issue upon the voir dire, the police interview will be admitted into evidence and the exhibits marked accordingly at trial. [ 92 ] As a matter of obiter dicta, I make the following observation: for the purpose of adjudicating the precise issue of whether Peter had an operating mind at the time he confessed to the police, it has not been necessary for me to consider or weigh his testimony that his statement to police was not true.

In this regard, I would only make the observation that an accused is always free to disavow any confession to the police and to raise the circumstances surrounding his interrogation, if he so wishes, as part and parcel of his defence at trial. That, however, is an issue for another day. [ 93 ] As a final note, the items of physical evidence which were seized by police during their search of Peter’s house and identified by Crown Counsel will also be admitted into evidence and marked accordingly at trial. Dated at the City of Iqaluit this 9th day of March, 2016 ___________________ Justice N.

Sharkey Nunavut Court of Justice