R. v. Ulayuruluk, 2022 NUCJ 12

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ulayuruluk, 2022 NUCJ 12 Date: 20220314 Docket: 07-18-53-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jerry Ulayuruluk __________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): J. McFarlane and C. DeSouza Counsel (Accused): M. Mannochio Location Heard: Iqaluit, Nunavut Date Heard: February 28 to March 4, 2022 Matters: Voir dire on the admissibility of the statements. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”

I. INTRODUCTION [ 1 ] Mr Ulayuruluk is charged with murder. The crown wishes to rely upon, either as part of its case or for the purposes of cross- examine of the accused, should he testify, a number of statements made by the accused. This is a voir dire to determine the admissibility of the statements. II. WHY WAS THERE A VOIR DIRE ? [ 2 ] The defence concedes the admissibility of the statements. Nonetheless, I directed a voir dire . I wish to take this opportunity to explain why. [ 3 ] There are cases where appellate counsel resiles from positions taken by counsel at trial.

When this occurs, the conduct of the trial judge, not trial counsel, is what is often under analysis by the appeal court. The following cases are such examples. [ 4 ] In the case of R. v. Kidlapik 2021 NUCA 12 , an accused, at the request of defence counsel, was permitted to be out of the courtroom for much of his preliminary hearing.

Despite defence counsel having made the request, and despite counsel having conceded committal to trial at the commencement of the preliminary hearing, counsel subsequently brought an application to quash the committal on the grounds that the procedure did not follow the procedure set out in the Criminal Code, RSC 1985, c C-46 and that this breached principles of procedural fairness. While the application to quash was dismissed by a judge of the Court of Appeal, it does not seem that defence counsel was called upon to explain the inconsistent positions taken. [ 5 ] In the case of R. v.

E.F ., 2021 NUCA 7 , the defence appealed a jury conviction. At trial, one of the crown witnesses recanted his statement to the police. The crown applied for leave to cross examine the witness on his statement and, if he persisted in his recantation, to have the statement admitted for the truth of its contents. At this stage of the proceedings the trial was adjourned to the following morning. That evening, the trial judge met with counsel to discuss scheduling. In that meeting, defence counsel advised that the crown’s applications were conceded.

The following morning the trial judge confirmed, on the record, the position of counsel. Crown counsel stated that the voir dires were essentially concluded. Defence counsel did not say anything. One of the grounds of appeal was that the trial judge erred in not holding a voir dire in relation to the witness statement. In granting the appeal and overturning the conviction, the Court of Appeal stated that the trial judge had made three errors in relation to the witness statement: i. She had not held voir dires and the voir dire materials were not entered as exhibits; ii.

The defence, in open court, did not confirm that concessions were being made in relation to the statement (there was not a proper waiver); and iii. “Finally, and importantly, the trial judge does not appear to have directed her mind to her gate-keeping function. G.H. ’ s statement could only be used for its truth if it met the legal requirements of necessity and threshold reliability. Even if those requirements were met, the trial judge retained a residual discretion not to allow it to go to the jury if she found its prejudicial effect exceeded its probative value: Khelawon , para 3 .

We do not know whether the trial judge addressed her mind to these issues. If she did, we do not have the benefit of her analysis and conclusions.” [ 6 ] It is noteworthy that on appeal defence counsel did not suggest that the concessions had not been made. It is noteworthy that, despite the Court of Appeal voicing concerns regarding the advisability of concessions as to the admissibility of the statement given the prejudice to the accused, no questions were raised regarding the position taken by defence counsel at trial.

The focus of the appeal was on the trial judge’s failure to exercise her gate keeping function. [ 7 ] In the case of R. v. Naslund , 2021 ABCA, the Court of Appeal also stressed the gatekeeping function of the trial court in the case of joint submissions.

[8] The principles and direction that I take from these cases are: i. counsel on appeal are not bound by positions taken by counsel at trial; ii. the trial court’s gate keeping function continues regardless of positions taken by counsel. [9] Some cases are illustrative of why a cautious approach by trial judges may be warranted. In the matter of R. v. Voisey 2022 NUCJ3, defence and crown counsel agreed that the defence should be able to cross-examine the complainant on certain sexual activity that fellwithin the scope of s.276 of the Criminal Code (the complainant chose not to participate in the hearing).

Nonetheless, a voir dire washeld. The accused testified at the voir dire and did not testify as expected. As a result, the s.276 application was withdrawn. III. FACTS: [10] There are three statements which were the subject of a voir dire: 1. A call made by the accused to the RCMP emergency line (the 911 call); 2. utterances made by the accused at the scene; and 3. a warned statement made by the accused while in custody after his arrest. IV. THE LAW: [11] Statements made by accused to persons in authority must be made freely and voluntarily. This is called the confessions rule.

Anout of court statement by an accused to a police officer is hearsay. But for the confessions rule it would be admissible as an exception tothe hearsay rule as a statement against interest.

The purpose of the confessions rule is twofold; to protect against unreliable and falseconfessions and to maintain the integrity of the justice system. [12] If the crown wishes to rely upon a statement made by an accused to a person in authority, either as part of its case or for cross-examination should the accused testify, it must first establish, beyond a reasonable doubt, that the statement was given freely andvoluntarily. [13] The court must consider whether the statement was provided in response to threats or promises of benefit, whether thecircumstances of the taking of the statement were oppressive, whether the accused had an operating mind when the statement was given,and whether there was impermissible police trickery in obtaining the statement (R. v.

Oikle, 2000 SCC 38 , [2000] 2 S.C.R. 3). V. ANALYSIS A. 911 Call: [14] At 3:54 am on October 26, 2018, the RCMP dispatch in Iqaluit received a call of an urgent nature. The caller stated there had beena murder, that he had done it, and that he had accidentally stabbed his girlfriend. The caller identified himself as the accused. Herequested assistance and provided information regarding the location of the victim.

[ 15 ] It is admitted the person who made the call is the accused. [ 16 ] As previously stated, the confessions rule applies only to statements made to persons in authority. Persons in authority are people who have influence or control over the proceedings and the prosecution. [ 17 ] The confessions rule requires that the accused know or believe that the person he is speaking to is a person in authority. Further, a belief by an accused that the person he is speaking to is a person in authority must be a reasonably held belief.

As such, statements made to undercover police officers etc., are not caught by the rule. [ 18 ] Police officers or prison guards, who are known to the accused to be police officers or prison guards, are generally considered persons in authority. Their position of authority over an accused is clear to an accused. [ 19 ] Other categories of persons are not so clearly “persons in authority” and whether they fall within the category will vary depending on the circumstances. In such cases there is an evidential burden on the defence to raise the issue.

Once sufficient evidence is before the court to bring the issue into play, the crown must prove that the person receiving the statement was not a person in authority or that the statement was given freely and voluntarily. A statement made to a 911 operator falls into such a category. [ 20 ] At the voir dire the court heard evidence regarding the emergency dispatch system in Nunavut. Emergency calls to the police are made by entering 867, the three-digit number that is specific to the community, followed by “1111”.

Such a call is the equivalent of what is known as a “911” call in other jurisdictions . [ 21 ] Such a call is received by the Operations Communications Centre (OCC). OCC receives both emergency and non-emergency calls to the RCMP. The OCC operators are members of the federal public service and civilian members of the RCMP. Their responsibilities are to receive calls, gather information from the caller, and pass the information on to the RCMP. OCC operators are not involved in policing in that they do not make decisions or provide direction as to how a complaint should be responded to.

They do not have any authority or control over accused persons and are not involved in prosecutions, except to the extent that they may be witnesses. [ 22 ] The court has no evidence to suggest that the accused thought he was speaking to a person in authority when he made the emergency call. The evidence is that the OCC operator has no control or influence over the criminal proceedings. There is no objective evidence to suggest she is a person in authority. [ 23 ] The statements made in the 911 call are admissible. VI.

UTTERANCES AT THE SCENE/UPON ARREST: [ 24 ] In response to the OCC call three officers attended at the address provided by the accused. Each officer was in RCMP uniform. They arrived in two fully marked police vehicles. [ 25 ] There are three utterances the crown wishes to rely upon at trial: 1) utterances made inside the residence; 2) utterances made in the police truck when the accused was being arrested for aggravated assault; and 3) utterances when he was being arrested for first degree murder. A.

Utterances made Inside the Residence: [ 26 ] As the police entered the residence the accused was in the living room, pacing and saying, “I’m sorry, I’m sorry”. It seems that these comments were repeated once the police were in the living room and had started to provide directions to the accused.

B. Utterances Made In the Police Truck: The accused was handcuffed, removed from the residence, and placed in the back of a police vehicle. [ 27 ] At 4:34 am the accused was arrested for aggravated assault. During the arrest, after being told of the reason for the arrest and given his Charter 10(

b) right to speak with a lawyer, but not the police caution (right to remain silent), the accused asked the officer: “Is she alive” “Is she, is she alive” “I love her, is she alive” “I understand. Is she alive” [ 28 ] These utterances were made while the officer was in the process of advising the accused of his Constitutional rights on arrest. The officer did not respond to the questions but continued to try and advise the accused of his rights. [ 29 ] Following the police caution, the accused was asked if he understood, to which he responded: “Yes sir.

Is she alive?” [ 30 ] While still at the residence, with the accused in the police truck, the police were advised that the victim had died. At 5:12 a.m. the accused was rearrested for first degree murder. In the course of being given his 10(

b) rights he stated: “I just killed somebody.” “I love her, I love her, I love her.” [ 31 ] It is the position of the crown that the statements made in the house and in the police truck are admissible as exceptions to the hearsay rule. [ 32 ] The spontaneous utterance exception to the hearsay rule is based on the understanding that the exceptional circumstances under which they are uttered tends to ensure their reliability because the person making the utterance has not had the opportunity to think things through. They are responding spontaneously to events as they are unfolding.

Precise contemporaneity with the events is not required. The question is whether the thought process of the person making the utterance has had sufficient time to return to a normal thought process, thereby raising the possibility of concoction or distortion. [ 33 ] There is no doubt that the event which led to the accused calling for assistance was a significant event which would have a major impact on him. The police arrived within minutes and the utterances were made while the accused was still at the scene, and everything was very fresh. There is some evidence that the accused had been drinking.

The three officers who testified did not testify to any obvious impairment of speech or balance that might suggest the accused was highly intoxicated. The utterances were not made in response to police questioning nor did the police respond to them in anyway. There is no concern over the accuracy of the statements. The statements made in the house were straight forward and easily remembered by the police officers. The statements in the truck were audio recorded.

[ 34 ] The utterances in the residence and in the police truck are admissible. VII. WARNED STATEMENTS: [ 35 ] The accused was transported to the Igloolik RCMP detachment. The accused did not say anything during this time nor was anything said to him. The accused was taken into the detachment and immediately placed in a cell. He remained handcuffed. The officers then entered the cell to take swabs from the accused as he had what appeared to be blood on him.

The accused was agitated for a short time but quickly calmed down and cooperated with the process. [ 36 ] The crown seeks to use statements given by the accused while in custody at the RCMP detachment for cross examination, should the accused choose to testify at the trial. [ 37 ] Following his arrest, and while in detention at the Igloolik detachment, the accused was interviewed four times over a period of three days. Each statement was taken in the interview room at the detachment and was videotaped. Each statement was taken by the same police officer, who I refer to as the “contact officer”.

The evidence was that this officer was assigned to interact with the accused. Contact with other officers and guards was minimized. Guards were only to have contact with the accused to meet his basic needs. Any other requests were to be passed on to members of the Major Crimes Unit, who had arrived in the community from Iqaluit. [ 38 ] Prior to taking statements, the accused exercised his right to consult with a lawyer. [ 39 ] The contact officer first met the accused on the afternoon of October 26, 2018. This was a short meeting in the cell to introduce himself and ask if the accused wanted anything.

Some food was provided to the accused. [ 40 ] Prior to being taken to the interview room for a statement the accused spoke with a lawyer for approximately one hour. A. Statement #1: [ 41 ] The first statement was taken on October 26, 2018, commencing at 16:39 and concluding at 21:26. Throughout the statement the accused asserts his right to remain silent. B. Statement #2: [ 42 ] The second statement was taken on October 27, 2018, commencing at 15:12 and concluding at 15:28. The statement was taken in response to a request by the accused to speak with the officer.

Throughout the statement the accused demonstrates a desire to speak with the police but also indicates that he wishes to speak with his lawyer first so that he can determine what he can say to the police. The accused demonstrates a clear understanding of the advice given by his lawyer and that he has been advised not to say anything. [ 43 ] At one point there is the following exchange: O. It is. It is tremendous. And I’m, I’m, I’m glad you realize that. Because I wouldn’t want you to think, that you know, talking to me has no, has no impact or… A. I know it has impact, I know it will help.

O. It, it does. [ 44 ] The context of the exchange makes it clear that the impact the accused was speaking of was a benefit to his mental health, not a benefit in the criminal prosecution or the treatment he would receive while in custody. [ 45 ] The statement concludes when the accused confirms that he wishes the statement to end so that he can speak with his lawyer. C. Statement #3: [ 46 ] The third statement was taken later in the day on October 27, 2018. It is not clear when the statement commenced but it is not a lengthy interview and it concluded at 19:08. D.

Statement #4: [ 47 ] The fourth statement was taken on October 28, 2018, commencing at 12:02 and concluding at 12:29. [ 48 ] The contact officer’s interaction with the accused also included at least one occasion where the accused was taken out for a cigarette and a telephone appearance before a Justice of the Peace for to be remanded into custody. [ 49 ] It is not necessary to review each interview in detail. An overview will suffice. [ 50 ] Throughout the interviews the accused demonstrates an awareness of his legal rights, in particular, his right to remain silent.

During the initial interview, which lasted approximately five hours, he asserts that right on many occasions. The officer continues to speak with the accused, which he is permitted to do. [ 51 ] The accused is treated respectfully throughout the process. He is provided with blankets, food, and beverages. [ 52 ] The interviews show a rapport developing between the officer and the accused. The officer repeatedly tells the accused that he does not have to speak with him and reiterates his rights. The tone is friendly. There is no yelling or raised voice. There is no deriding of the accused.

The physical set up of the room and the placement of the officer and the accused is not oppressive or intimidating. At some points later in the interviews the officer does touch the accused, but this is done in an empathetic, supportive manner, not in a threatening or oppressive manner. The accused is not given any misleading information about the investigation.

There is no attempt to trick him. [ 53 ] The evidence suggests that the accused was motivated to speak to the officer out of feelings of remorse and his own personal need to talk; not because he expected any benefit in the prosecution or because he felt threatened. [ 54 ] I find that the warned statements were given freely and voluntarily and are admissible. Dated at the City of Iqaluit this 18th day of March 2022, ___________________

Justice S. Cooper Nunavut Court of Justice