R. v. Angootealuk, 2017 NUCJ 17

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Angootealuk, 2017 NUCJ 17 Date: 20170825 Docket: 08-15-567 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jackie David (JD) Angootealuk ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Roman Dzioba Counsel (Accused): Sara Siebert Location Heard: Iqaluit, Nunavut Date Heard: August 25, 2017 Matters: Common law confessions rule; right to silence REASONS FOR JUDGMENT (NOTE: This document has been edited for publication)

I. INTRODUCTION [ 1 ] The accused, Jackie David (JD) Angootealuk, is charged with indictable sexual assault. The incident happened in Iqaluit on November 23, 2015. He was arrested in Iqaluit on November 25, 2015. Later that same evening, he gave a cautioned statement to the police. That statement is the subject of a voluntariness voir dire at common-law. A voir dire is a trial within a trial we use to decide questions dealing with contested evidence.

This voir dire is about whether the statement made by the accused to the police may be used by the Crown as evidence at the accused’s trial. [ 2 ] In Canada, a person arrested by the police has the right to remain silent. This constitutional right is a cornerstone of our free and democratic society. The right to silence is protected by

section 7 of the Canadian Charter of Rights and Freedoms . [1] This right to silence protects each one of us. [ 3 ] The Defence lawyer, Ms. Sara Siebert, has conceded there is no evidence of state oppression, inducements, promises or threats made by the police to get the accused to speak. Defence Counsel also conceded that the police did not engage in any trickery. Further, the Defence also concedes that the accused had an operating mind at the time he provided the statement. The only triable issue, or question I must decide, is whether the accused understood he had the right to remain silent. I thank Ms.

Siebert for focusing on the only real issue in this case. [ 4 ] The voir dire was held on August 18, 2017. The Crown called Cpl. James MacEachern and Cst. Andrew Kerstens who both testified by videoconference. The accused decided not to call evidence. These are my reasons for decision. II. BACKGROUND [ 5 ] The complainant went to the Iqaluit Royal Canadian Mounted Police detachment on November 23, 2015 to complain that she “may have been” [2] sexually assaulted by the accused. Cpl. MacEachern testified in direct examination he went to arrest the accused around 7:40 p.m. two days later. Cpl.

MacEachern later said he could not recall whether Cst. Bjorklund was with him at the time of arrest. He could not remember if he handcuffed the accused. Nor could he remember what the accused was wearing at the time he was arrested. [ 6 ] Cpl. MacEachern testified he told the accused he was there to arrest him and the accused “indicated he understood”. [3] Cpl. MacEachern testified he then told the accused that “he did not have to say anything to me but anything he did say could be used as evidence”. [4] This happened inside the residence. Cpl.

MacEachern did not tell the Court if the accused said anything in reply. Cpl. MacEachern testified that as they walked to the police vehicle, he told the accused he had the right to speak to a lawyer, and that he could speak to duty counsel for free. Again, Cpl. MacEachern did not say if the accused said anything in reply. I will return to this early part of their interaction in a moment. [ 7 ] Cpl. MacEachern testified he then placed the accused in the rear of the police vehicle and told the accused he was under arrest for sexual assault. He read the accused his rights from what he called a “prepared card”. Cpl.

MacEachern did not have the card with him, so the Court cannot be sure what, in fact, he said to the accused. Cpl. MacEachern did not say whether the accused responded in any way to what had been said to him. In fact, Cpl. MacEachern’s only comment on how the accused appeared or responded during these critical interactions was “that’s all I can say, he was co-operative”. [5] [ 8 ] Cpl. MacEachern testified he took the accused to the detachment. At 7:55 p.m., the accused spoke to Legal Aid duty counsel by telephone. The telephone consult lasted 17 minutes. The only specific detail provided by Cpl.

MacEachern about his interaction with the accused came at this point. Cpl. MacEachern testified he asked the accused if he was satisfied with the legal advice and if he understood it. The accused is said to have replied yes, he did. Cpl. MacEachern said he recorded these replies in his notebook. He said he could not remember having any other interactions that day with the accused. [ 9 ] At the start of the cross-examination, Cpl. MacEachern admitted he told the prosecutor just the day before that Cst. Bjorklund had been with him at the arrest.

However, he said during the voir dire “I am not 100 per cent certain”. [6] The recording and transcript of

the proceedings will show that Cpl. MacEachern was argumentative and defensive throughout the rest of the cross-examination. [ 10 ] Cpl. MacEachern stated that the police “have a duty to disclose everything that is relevant to the investigation”. [7] He was asked whether he had had any further interactions with the accused. He replied “my testimony was that I didn’t. My testimony is that I didn’t recall any. From what I understand there were but I don’t recall those”. [8] He then agreed that the detachment’s cell logbook recorded several interactions he had with the accused.

However, he had no memory of them. [ 11 ] Cpl. MacEachern was then challenged by Defence Counsel for not recording in his notebook any responses made by the accused at the time of the arrest. The witness acknowledged he did not write down the replies. He said: “I don’t think they are relevant”. [9] For the first time, it then was revealed that Cpl. MacEachern had, in fact, made some notes of what the accused said to him inside the police vehicle. He had recorded the following exchange: “Q1: I understand. Q2: Yes. PW (police warning) I understand”. [10] He did not explain what “Q1”, “Q2” and “PW” meant.

As I noted earlier, Cpl. MacEachern made no reference to these replies in his direct evidence. [ 12 ] Cpl. MacEachern was asked if he had any other notes from his part of the investigation. He said he did not. When asked if he monitored the interview remotely, Cpl. MacEachern replied: “I don’t believe so, no”. [11] To the next question, whether he remembered being asked for help by Cst. Kerstens during the interview, he replied “that I don’t recall”. [12] [ 13 ] Cst. Kerstens told the Court he took a cautioned and video-recorded statement from the accused later that evening. The interview started at 9:45 p.m.

The interview lasted two hours and 18 minutes. He stated Cpl. MacEachern monitored the interview. He also testified he stopped the interview several times to ask Cpl. MacEachern for help. I accept his evidence on all these points. [ 14 ] Cst. Kerstens testified that he was asked to conduct the interview. He said he had never dealt with the accused before. He did not ask for an interpreter based on his “conversation” with the accused, although he acknowledged the accused had difficulty with his “grasp” of “concepts”. [13] In cross-examination, Cst.

Kerstens admitted he did not know how long the accused had been in cells before the interview. He also testified he had not reviewed the cell log or spoken to the cell guard. He “believed I would have” reviewed the prisoner report before the interview, but he could not recall having done so. [14] Cst. Kerstens did not appear to be an experienced interrogator. [ 15 ] The prosecutor played the video statement in court. The following early questions and answers found in the Crown-prepared transcript are significant. References to “Q” record Cst. Kerstens’ questions. “A” refers to the answers given by the accused. Q.

Good okay, so JD we’re here to talk about something that happened okay um, before I do that I want to make sure you understand what you’re here for okay, um, so do you understand what you’re arrested for? A. Um, I’m not I don’t understand (inaudible). Q. You don’t understand okay um did the officer tell you why you’re arrested? A. He just said you’re sexually assault for I don’t know what. Q. For sexual assault? A. Whatever I don’t know. Q. Okay do you understand what sexual assault means? A. No actually. Q. No?

A. No. Q. Okay um sexual assault means that it’s alleged that you assaulted somebody did something which means physical ah ah physical thing okay it could be touch it could be a lot of different things but in sexual manner. A. Mmm. Q. Okay? A. Mmm. Q. You understand that? A. Yes. Q. Did that help you understand? A. Yes. [15] [ 16 ] This exchange was followed very shortly after by the following: Q. Okay and with that I’m going to let you know okay um they have right to talk to the lawyer did you do that today? A. Yes I did. Q. Yeah okay and you remember the name of the lawyer you spoke to? A.

He didn’t give me the name. Q. He didn’t give you the name okay did he give you advice? A. He just got me advice. Q. He did give you advice? A. Yes I did. Q. Yeah?

A. Yes. Q.

Okay that’s just what I want to make sure okay and again I don’t need to know that advice was but I want to make sure that you have the opportunity to speak the lawyer so like I said your rights are as important to you as they’re to me so I want to make sure that you got those rights, okay um so JD the last thing I want to talk about before I talk about why we’re here okay, is you’re here to speak with me okay you and I are going to have conversation during the conversation you don’t have to say anything to me, okay and but it’s important that you understand anything you say may be used as evidence in court, you understand that?

A. Yes, I understand. Q. Yeah okay. A. I don’t want to make a statement though. Q. Yeah. A. (inaudible – low voice). [16] III. ISSUES [ 17 ] There are two issues, or questions, I must decide: 1. Has the Crown proven the accused understood he had the right to remain silent while he was being interrogated by the police? 2. Is the statement admissible as evidence against the accused at his trial? IV. THE LAW [ 18 ] In our criminal justice system, the Crown cannot as of right lead evidence that an accused person made a statement to the police. To do so, the Crown must first prove several things.

Among other things, the Crown must prove the accused gave the statement freely and voluntarily, and that the accused had an operating mind. The standard of proof the Crown must meet is extremely high. The Crown must prove the “voluntariness” of the statement beyond a reasonable doubt. This so-called “confessions rule” has been the law for a very long time. The leading cases from the Supreme Court of Canada are R v Oickle and R v Singh . [17] [ 19 ] In a statement voir dire , a trial judge must look carefully at all the relevant circumstances and events which led to the statement.

I referred in paragraph three to several factors a trial judge must consider. The inquiry considers the presence of any oppressive conduct by the police, or inducements, promises or threats which may have overborne the will of the accused to remain silent. In this case, the only issue in dispute is whether the accused understood from his dealings with police that he had the right to remain silent. [ 20 ] It is a very serious thing for a police officer to arrest someone. The arrested person immediately loses his freedom. There is a huge power imbalance between the parties.

It is also a very stressful moment for most people to handle. For these reasons and others, our law places strict legal duties on the arresting police officer. The officer must tell the person that he has the right to remain silent. As I said earlier, this is a fundamental cornerstone of our democracy.

The officer must also tell the person he has the right to speak with a lawyer, and that there is a publicly funded Legal Aid duty counsel available to advise him of his rights. [ 21 ] In the interest of crime prevention and investigation, our police are given considerable leeway when they question an arrested suspect. [18] However, it is sometimes not enough for the officer simply to recite the person’s rights.

This point was made in 1991 by Justice McLachlin for the majority of the Supreme Court of Canada in R v Evans : In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the police are

required to go no further … But where, as here, there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to accused; they must take steps to facilitate that understanding”. [19] [ 22 ] Three years later, the Supreme Court of Canada in R v Bartle revisited this point of law.

The Court stated that when making an arrest, a police officer must explain our constitutional rights “clearly and fully”. [20] If the arrested person does not understand his rights, he will not be able to make an informed or intelligent decision about how he should exercise those rights.

The court in Bartle went on to say that if the circumstances suggest that a language issue may prevent a person from understanding his rights, then the police have a duty to assure that the person “fully understands” his rights. [21] [ 23 ] As I said over a year ago in R v Oroluk , [22] this is a particularly important issue in Nunavut.

In 2011, 86.3 per cent of Nunavut’s population self-identified as Aboriginal. [23] That same year, 55.6 per cent of school-age children spoke Inuktitut at home. [24] Nunavut has the lowest literacy and numeracy rates in Canada. [25] Nunavut has the lowest percentage of students who graduate from high school. [26] In 2014, only 31 per cent of the population had graduated from high school. [27] [ 24 ] The statistics I have cited as not just numbers. Experience in our Court has shown us that a significant number of Nunavummiut have a limited grasp of English.

It is also very clear that many Nunavummiut do not understand how our legal system operates, and this includes repeat offenders. This means that a significant number of Inuit on arrest will not immediately understand they have the right to remain silent. Nor will they understand what “evidence” means, where it is to be used, for what purpose and to what end. Our constitution requires the police in Nunavut to be alert for a lack of understanding on part of an arrested Inuk. Our police must ensure the accused person understands his rights whenever it is unclear if the person, in fact, understands.

In many, if not most cases, that will require the officer to do more than simply recite a list of rights by rote. [ 25 ] In Canada’s north, it has long been recognized that the police have a duty mandated by law to ensure an arrested Inuk understands his rights. This reality pre-dates division from the Northwest Territories.

In fact, judges have been making this point “for decades”. [28] Justice Marshall of the Supreme Court of the Northwest Territories said the following in 1985: I might make some general statements … on the taking of statements in the North , because … it is very difficult for the police to satisfy the traditional rule as to voluntariness and for them to satisfy the requirements now of the Charter . The reasons for the difficulty are several, and some, I think, are more subtle than others.

First of all, some of the people in the North are untrained in matters of Canadian criminal justice, police matters and legal matters. Many of the people in northern communities, for reasons of culture, a lack of exposure to the law, education, geographic separation and many other reasons … require a fuller explanation of their rights when taking a statement, an explanation of their rights and a clearer warning on arrest and detention. [29] [Emphasis added] This northern reality as described by Justice Marshall still holds true.

In my respectful view, this statement accords with the law as stated in Evans [30] and Bartle . [31] [ 26 ] The purpose of the “confessions rule” is to ensure not only that the accused understood his right to silence; it is also intended to ensure the accused understood the legal implications of giving up that right. [ 27 ] This is the legal framework I must apply to the facts of this case. V. THE PARTIES’ POSITIONS [ 28 ] The Crown prosecutor, Mr. Roman Dzioba, says the Court should be satisfied that the statement was given freely and voluntarily and while the accused had an operating mind.

He says the accused was a student at Arctic College at the time and was not unsophisticated. The accused, he says, understood English well enough to understand his situation and his rights. [ 29 ] Defence Counsel says the Crown has not met its onus of proof. She urged the Court to reject Cpl. MacEachern’s evidence because it was not detailed. She reminded the Court that the statement is not admissible unless and until the Crown proves its voluntariness beyond a reasonable doubt.

She also reviewed Northwest Territories and Yukon case law which has considered the right to silence in the context of northern Aboriginal communities. VI. ANALYSIS

[ 30 ] There is no doubt on the evidence that both police officers recited to the accused his rights. However, the evidence goes no farther than that. In my respectful view, it was not enough for Cpl. MacEachern to tell the accused he did not have to say anything and that that anything he said could be used as “evidence.” Nor did Cst. Kerstens provide a clear explanation of the accused’s rights even though there were positive indicators the accused had trouble understanding what was said to him. [ 31 ] Cpl. MacEachern was the arresting officer.

He testified he gave the accused his rights “off the top” of his head on arrest. In his opinion, the accused understood what was said to him. However, Cpl. MacEachern provided no contextual evidence of the details of the interaction. For example, he did not testify to any facts which led him to form his opinion that the accused understood the reason for his arrest. He did not testify to what, if anything, the accused said at any time. He did not tell the Court what, if anything else, he said to the accused. He did not testify to how the parties were positioned in relation to each other at all material times.

In short, we know next to nothing about what really happened at this critical first interaction between the police and the accused. Nor was his evidence any more detailed about what had happened as the parties went from the accused’s residence to the police vehicle. [ 32 ] The same analysis applies to what happened next in the police vehicle. Cpl. MacEachern testified he read the accused his rights from a prepared card. He did not bring the card to Court to read into the record exactly what he said. He did not testify what, if any, reply was made by the accused.

He did not testify about what was happening while they interacted. It was only in cross-examination that he mentioned he had recorded some replies from the accused; but then he did not explain what his notes meant. This vague evidence does not permit the Court to assess the appropriateness of the corporal’s conduct or what he said. It does not permit the Court to assess whether the steps he took were sufficient to give the accused a clear understanding of his right to remain silent. [ 33 ] I am troubled by Cpl.

MacEachern’s evidence that he did not record the accused’s words on arrest because they “are not relevant”. Everything said by an accused person on arrest is potentially relevant. What an accused person says is critically relevant if the Crown seeks to use his subsequent statement against him. The Crown must prove voluntariness beyond a reasonable doubt. The reasonable doubt standard requires a very high level of evidentiary detail.

In the context of a statement voir dire , this proposition was made by Justice Vertes in the Kooktook case: Where the evidence adduced by the Crown is exhaustive in respect of everything that was said to the accused by persons in authority and it discloses no threats or inducements, then the statement is likely to be found voluntary. The only way available to the Crown to prove such a negative proposition is to produce evidence of everything that was said to or in the presence of the accused and all the circumstances relevant to the making of the statement. [32] [Emphasis added] Cpl.

MacEachern’s evidence failed to meet that exacting standard. His failure to follow investigative best practices undermined any chance to have the statement admitted later as evidence. [ 34 ] I am more troubled by another of Cpl. MacEachern’s answers. In direct examination, he was asked by the prosecutor if he had any interaction with the accused after the call to duty counsel. Cpl. MacEachern replied “I do not recall any”. [33] In cross-examination, his testimony changed significantly. [ 35 ] This is how Cpl. MacEachern answered the same question in cross-examination: “My testimony was that I didn’t.

My testimony is that I didn’t recall any. From what I understand there were but I don’t recall those”. Cpl. MacEachern’s answer in cross-examination was internally inconsistent threefold. He stated first: “my testimony was that I didn’t”. That answer was not correct. He then immediately returned to what he had said in direct examination: “my testimony is that I didn’t recall any”.

He then changed his testimony significantly to the following: “from what I understand there were [interactions] but I don’t recall those”. [34] Whatever else might be said about this answer and his evidence generally, it demonstrates Cpl. MacEachern did not answer the question candidly and fully in direct examination. I find Cpl. MacEachern’s evidence to be vague and unreliable. I can give it very little weight. [ 36 ] Cst. Kerstens testified about his role in taking the statement. He presented both in court and on the video as conscientious and well-meaning.

He testified he stopped the interrogation and left the room a few times to seek help. In fact, the video of the interrogation shows he left the room five times. In a significant answer in direct examination, he said the accused had a “grasp” of the English language, but not of “concepts”. [35] This frank admission by the constable goes to the very heart of the issue before this Court. [ 37 ] It should have been immediately obvious to Cst. Kerstens at the start of the interaction that he would have to make an extra effort to make sure the accused understood his rights.

Only a minute or so into the interrogation, Cst. Kerstens asked the accused if he knew why he had been arrested. I agree with Ms. Siebert that the following exchange ought to have been a ‘red flag’ for the constable: A. Um, I’m not I don’t understand (inaudible). Q. You don’t understand okay um did the officer tell you why you’re arrested? A. He just said you’re sexually assault for I don’t know what. Q. For sexual assault?

A. Whatever I don’t know. Q. Okay do you understand what sexual assault means? A. No actually. Q. No? A. No. [ 38 ] The Court often sees video evidence where the investigator follows a detailed written script to assist him with this important part of the interrogation. In this case, Cst. Kerstens attempted to explain to the accused his rights off the top of his head. Having been told by the accused that he did not understand why he was arrested, the constable continued by defining sexual assault as follows: Q.

Okay um sexual assault means that it’s alleged that you assaulted somebody did something which means physical ah ah physical thing okay it could be touch it could be a lot of different things but in sexual manner. [ 39 ] I have no reason to doubt the young constable tried to do his best when he defined sexual assault in the way he did. However, as a legal definition, it was incomplete and very hard to understand. I had to read it several times to try to understand it. As a result, I can only infer that the accused did not understand it either, despite the fact he said he did. [ 40 ] Cst.

Kerstens’ next exchange with the accused was also problematic: Q. Okay and with that I’m going to let you know okay um they have right to talk to the lawyer did you do that today? A. Yes I did. Q. Yeah okay and you remember the name of the lawyer you spoke to? A. He didn’t give me the name. Q. He didn’t give you the name okay did he give you advice? A. He just got me advice. Q. He did give you advice? A. Yes I did. [ 41 ] I understand Cst. Kerstens to have tried to say that an accused person has the right on arrest to speak to a lawyer, to get legal advice about his situation.

Again, his off the top of his head explanation was only partly accurate and somewhat confusing. This was followed immediately with the constable’s question “ he did give you advice?”, and the accused’s reply was “Yes, I did”. The answer was a clear sign the accused was having trouble following what was being said to him. The accused had but a basic command of English. Yet, Cst. Kerstens missed the cue and simply carried on. [ 42 ] Cst. Kerstens moved on to advising the accused of his right to remain silent. Because this right is the focus of the voir dire , this exchange bears repeating: Q.

Okay that’s just what I want to make sure okay and again I don’t need to know that advice was but I want to make sure that you have the opportunity to speak the lawyer (sic) so like I said your rights are as important to you as they’re to me so I want to make sure that you got those rights, okay um so JD the last thing I want to talk about before I talk about why we’re here okay, is you’re here to speak with

me okay you and I are going to have conversation during the conversation you don’t have to say anything to me, okay and but it’s important that you understand anything you say may be used as evidence in court, you understand that? A. Yes, I understand. Q. Yeah okay. A. I don’t want to make a statement though. [ 43 ] Cst. Kerstens’ explanation of the right to silence was problematic for several reasons. The reference to the right to silence is swallowed up in the middle of a lengthy monologue which, frankly, is difficult to follow and understand.

More importantly, just before the accused was told “you don’t have to say anything to me”, he was told “you’re here to speak with me today … you and I are going to have a conversation”. These statements not only contradict each other; in real time, they gave a confusing mixed message. They do not meet the constitutional requirements in Evans [36] and Bartle [37] that the explanation be clear and full. [ 44 ] I pause here to make a few observations which ought to have been at the forefront of Cst. Kerstens’ mind. According to the Information, the accused was born on April 20, 1996.

He was just 19 years old at the time of his arrest. He is from Coral Harbour, a tiny geographically isolated hamlet with a population of 891 in 2016. He had never been in trouble before with the law. The video shows him using what I would term ‘stilted’ English. I infer that English is not his first language. In any event, all these objective facts and signs should have been “positive indications” per Justice McLachlin of a real language comprehension issue.

They ought to have alerted the constable that he was required to take more care and make a greater effort in explaining to the accused his legal rights. [ 45 ] After Cst. Kerstens finished his attempt at an explanation, he asked the accused if he understood. The accused said yes. But, immediately the accused added: “I don’t want to make a statement though”. [38] I understand the accused as saying essentially: ‘yes, I understand I have the right not to speak, but I still don’t want to talk to you’.

This, too, ought to have been a warning sign to the constable that the accused was having difficulty understanding this crucial concept. Again, constable missed the cue and carried right along with the interrogation. VI. CONCLUSION [ 46 ] In my respectful view, the Crown’s evidence does not prove beyond a reasonable doubt that the accused understood his Charter - protected right to silence.

The evidence also leaves me in considerable doubt whether the accused understood the legal ramifications of not exercising that right. [ 47 ] This case highlights the vulnerable position of many Nunavummiut when dealing with the police. It also highlights the need for our police to adapt their policies and protocols to respond to the culture and unique circumstances of the Inuit population they serve. This need is not simply a matter of cultural sensitivity or political correctness; it is mandated of them by our constitution. I repeat what I said earlier.

Our police must ensure an accused person understands his rights where the circumstances suggest he does not. In many, if not most, cases in Nunavut, this will require the officer to do more than simply recite a list of rights by rote. [ 48 ] I rule the statement made by Mr. Angootealuk on November 25, 2015 to be inadmissible as evidence, and it may not be tendered or referred to at his trial. Dated at the City of Iqaluit this 25th day of August, 2017

___________________ Justice P. Bychok Nunavut Court of Justice