R. v. Camille, 2017 BCPC 437

Citation: R. v. Camille 2017 BCPC 437 Date: 20170202 File No: 101253-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GORDON PAUL CAMILLE REASONS ON VOIR DIRE RE: VOLUNTARINESS OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. Sarah Firestone Counsel for the Accused: Mr. Kenneth Walker, Q.C. Place of Hearing: Kamloops , B.C. Dates of Hearing: November 14 to 18, 21 to 25, 28 and 29, 2016

Date of Judgment: February 2, 2017 [1] Gordon Paul Camille is charged with the second degree murder of Dennis Adolph, contrary to s. 235(1) of the Criminal Code.Much of the preliminary inquiry has been conducted in a voir dire on the issue of the voluntariness of statements made by Mr. Camilleduring three days of interviews. [2] The test for voluntariness has not changed since the Supreme Court of Canada rendered its decision in R. v. Oickle, 2000 SCC38 , 2000 S.C.C. 38. I must be satisfied that Mr. Camille’s statement is made free from compulsion, threat or inducement.

Theatmosphere in which he made the statement must be devoid of oppression and he must have had an operating mind capable ofunderstanding the nature of the statement made and the consequences of making it. [3] It is important to note the nature and timing of certain events occurring between Mr. Camille and the various police officersinvestigating this matter. On January 26, 2016, the investigating officers treated Mr. Camille as a witness and relation (uncle) to theperson who had died. They did not treat him as a suspect in their initial dealings. Mr.

Camille was first invited to stay in a police cruiserto keep warm and then was transported to the detachment to provide a witness statement. Throughout the initial part of the interview, Mr.Camille did not come under suspicion. Eventually, though, the police had the opportunity to view the videotape of the motel room areaand determined that the only person who had been in the motel room with Mr. Adolph at the time of his death was Mr. Camille. SergeantWood entered the room and confronted Mr. Camille in a fairly aggressive tone. His posture as he stood by the door was imposing. [4] Mr.

Camille was not charged or arrested at the time, though. He was taken to a men’s shelter because he could not return to hishome at the motel. [5] Ms. Firestone agreed that as soon as the police identified Mr. Camille as a suspect on January 26, 2016, the right to counselwas not implemented in a meaningful way. Nor was a statement taken ultimately. [6] From this point, the investigation continued resulting in approval of these charges on February 5, 2016. An arrest plan was putinto place and executed on February 5, 2016. On arrest, he was treated gently and respectfully.

He was also advised that any priorstatement he had given previously may be inadmissible and that they were starting afresh. [7] It became obvious to the investigating officers that Mr. Camille had some hearing difficulties and so efforts were made tolocate hearing aids for him. There were problems with the batteries and, from time to time, with the effectiveness of these hearing aids.These problems were remedied. To be clear, the hearing aids were found in order to facilitate the investigation, not to do a kindness. [8] Throughout the course of the interviews, a significant amount of Mr.

Camille’s background became known to the investigatingofficers. It is this background and Mr. Camille’s frailties that Defence says must be taken into consideration in an overall review ofwhether the statement made by Mr. Camille is voluntary. [9] The Crown concedes that Mr. Camille is a member of a historically disadvantaged group, being a First Nations person. TheCrown also concedes that he suffered horrendous treatment while attending residential school and that he struggles with addiction.

It isacknowledged that he is economically disadvantaged, in poor health and under physical disabilities. [10] On the other hand, the Crown argued that he is intelligent and articulate, college-educated, well connected with resources likeASK Wellness, and has family supports including his sister Ms. Demers. [11] Mr. Camille is described by Crown as strong willed and strong minded. Ms.

Firestone argued that he chose to speak to thepolice of his own free will, which he demonstrated repeatedly throughout the interviews occurring from the time of his arrest onFebruary 5, 2016 to the time of his confession on February 7, 2016. The Crown argued there was a complete absence of quid pro quothat would have overwhelmed Mr. Camille’s will. He also told the police that he always intended to confess. [12] Counsel are not much at odds with respect to the law which, as I have noted, is largely unchanged since the decision of Oickle,supra. Citing from that decision, Ms.

Firestone referred to the following relevant passages: [51] Threats or promises need not be aimed directly at the suspect for them to have a coercive effect. For example, in R. v. Jackson(1977), (BC CA), 34 C.C.C. (2d) 35 (B.C.C.A.), McIntyre J.A. (as he then was) addressed a confession obtained in acase where the accused and his friend Winn had robbed and murdered a hitchhiker. The police suspected the murder was Jackson'sdoing, and urged him to confess, lest his friend Winn be unjustly convicted of murder.

The trial judge had concluded that: [The police] were exerting a subtle form of pressure on Jackson, they were appealing to his concept of right and wrong... . They indicatedthat unless they got to the truth of the matter, it might be necessary to charge both, and this too was a very likely possibility. The officerswere completely frank with him. The officers hoped that when Jackson was faced with what they had, and what might transpire if hedidn't speak up, that he would take Winn off the hook and confess. That is exactly what he did.

I can see nothing in what they said or inwhat they did that can be construed by Jackson as holding out the possibility of any benefit to him should he confess. McIntyre J.A. agreed that no hope of advantage that would render a confession inadmissible had been held out to the accused. He thenpresented the following very helpful analysis of the law (at p. 38): [Cases] must be considered in relation to their own facts.

It is my opinion that for a promised benefit to a person other than the accusedto vitiate a confession, the benefit must be of such a nature that when considered in the light of the relationship between the person andthe accused, and all the surrounding circumstances of the confession, it would tend to induce the accused to make an untrue statement,for it is the danger that a person may be induced by promises to make such a statement which lies at the root of this exclusionary rule. [13] The circumstances in Jackson do not apply here. There was no alternative person who might be saved by an admission from

Mr. Camille. The inducements in this case might be said to be the blanket offered to keep him warm in his cell; the clean clothes; thefood offered at various meal breaks; the hearing aids and their batteries; and the washroom breaks. However, for those inducements to besuch that they have overborne Mr. Camille’s will, they must be given in exchange for him providing a confession; as a reward foradvancing the interview; or following a period of deprivation of these basic needs.

There were no such links to be drawn in this case. [14] Even where the police use various forms of persuasion, it requires a determination of whether a quid pro quo was offered by theinterrogators or whether a suspect was bringing an interrogation to an end by an early confession: [57] In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain aconfession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convincethe suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone orin combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App.

R. 207 (C.A.), at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an earlyadmission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even ifpromoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confessionwould be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

If so, it is irrelevant, even if itprovides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said ordone by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or doneby such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur thatthey might be able to bring both their interrogation and their detention to an earlier end by confession.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in theform of a threat or a promise. [15] Mr. Walker argued that the long and persistent questioning of Mr. Camille in conjunction with his personal vulnerabilities andfrailties wore him down to the point that he confessed to the killing in order to end the interview process. [16] I must also consider the operating mind of Mr.

Camille at the time of confession as part of the exercise in determining whetherthe statement was made voluntarily: [63] This Court recently addressed this aspect of the confessions rule in Whittle, supra, and I need not repeat that exercise here.Briefly stated, Sopinka J. explained that the operating mind requirement "does not imply a higher degree of awareness than knowledge ofwhat the accused is saying and that he is saying it to police officers who can use it to his detriment" (p. 936).

I agree, and would simplyadd that, like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest ofthe confessions rule. Indeed, in his reasons in Horvath, supra, at p. 408, Spence J. perceived the operating mind doctrine as but oneapplication of the broader principle of voluntariness: statements are inadmissible if they are "not voluntary in the ordinary English senseof the word because they were induced by other circumstances such as existed in the present case". Oickle, supra. [17] In Mr.

Camille’s case, he well understood what he was saying, that his lawyer had told him not to say anything, that his lawyerwould be frustrated with him for not following his advice, that he had a right to remain silent, and that anything he did say was inevitablygoing to be used as evidence against him. [18] Mr. Walker also argued that tactics were used by the police to confuse Mr. Camille and to create memories for him. He arguedthat given Mr. Camille’s frailties and vulnerabilities, the police tactics in persisting against Mr.

Camille’s asserted right to silence wouldshock the community. [19] This must be balanced with the court’s finding that there must not be unnecessary restrictions on police discretion during thecourse of an investigation: [66] Lamer J. was also quick to point out that courts should be wary not to unduly limit police discretion (at p. 697): [T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules.

Theauthorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceitand should not through the rule be hampered in their work.

What should be repressed vigorously is conduct on their part that shocks thecommunity. … Oickle, supra. [20] Finally, the court in Oickle, supra emphasizes that the analysis under the confessions rule is a contextual one requiring the courtto understand the circumstances surrounding the confession and determining if the circumstances give rise to a reasonable doubt as tovoluntariness: [71] Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courtshave excluded confessions made as a result of relatively minor inducements.

At the same time, the law ignored intolerable policeconduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect.Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt asto the confession's voluntariness, taking into account all the aspects of the rule discussed above.

Therefore a relatively minor inducement,such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep,heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where thesuspect is treated properly, it will take a stronger inducement to render the confession involuntary.

If a trial court properly considers allthe relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for "somepalpable and overriding error which affected [the trial judge's] assessment of the facts": Schwartz v. Canada, (SCC),[1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship "Kathy K", (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasisin Schwartz).

[ 21 ] It should be noted that the confession given by Mr. Oickle was deemed voluntary. He had been in the presence of police for more than nine hours, and was only permitted to go to his cell after conducting a polygraph test. In the case before me, while the interrogations covered a considerable period time, Mr. Camille was afforded sleep, food and washroom breaks that were not tied to progress or lack of progress in any way to the questioning. [ 22 ] While Mr. Oickle was continuously subjected to tests at various times, Mr. Camille was permitted uninterrupted rest throughout the night.

His comforts were attended to and accommodations were made for his slow pace, poor hearing and low appetite. He was spoken to respectfully throughout and with consideration for his challenges. While the first night in the cell block was challenging given the discontent of one of the cell mates, efforts had been made to put Mr.

Camille in a more isolated area more protected from the inevitable sounds of a cell block. [ 23 ] Statements were taken over three separate occasions: the first for 4 hours and 10 minutes, not including break times; the second for 2 hours and 18 minutes, including the 40 minutes he was in the room by himself; and the third over a period of time just shy of 3 hours. During the course of those statements, Mr. Camille asserted, according to Ms. Firestone’s calculations, that he was not going to speak any further 21 times in the first occasion; 4 times on the second occasion; and 13 times on the third occasion.

It was clear he was not only aware of his right to silence, but insisted on it frequently and sometimes aggressively. [ 24 ] While the questioning was persistent, Ms. Firestone asserted that it was not particularly emotionally intense. No one was angry and there was no confrontational tone. Neither the persistence of his interrogator or the circumstances themselves rendered Mr. Camille incapable of choosing whether to speak to Cpl. Bell or the others. They regularly made his choice clear to him. At no time when Mr. Camille asserted his right to his silence did Cpl. Bell or any of the others denigrate his choice.

In fact, as Ms. Firestone argued, Cpl. Bell was inclined to confirm Mr. Camille’s right to silence on those occasions. [ 25 ] Mr. Walker argued that Mr. Camille’s personal circumstances made him a particularly vulnerable target. He was described as elderly at 66 years old, a First Nations residential school survivor and a person with physical problems including arthritis, liver problems arising from alcohol abuse, hearing difficulties and memory deficits. [ 26 ] There is independent evidence that Mr. Camille is not only a residential school survivor but that he went to St. Joseph’s.

He also described in his interviews that he had been raped by a priest and that he had witnessed others being raped. This is largely unchallenged by the Crown. However, while courts are entitled to take judicial notice of the deplorable circumstances suffered by generations of First Nations people in this country, it must be the individual impact on Mr. Camille that I take into consideration on the issue of voluntariness. [ 27 ] I can confidently conclude that Mr. Camille’s residential school experience had a significant, horrendous impact on his life.

I cannot conclude that he suffers from post-traumatic stress disorder or that he is in any way made more vulnerable or compliant to a police interview as a result of his experiences. I have insufficient evidence before me to reach such a conclusion. That he has developed some of his own coping skills is evident from his feisty and often aggressive responses, his sense of humour, and his own control of the direction the interviews took. It was a struggle for Cpl. Bell to keep Mr. Camille on topic as Mr. Camille so often chose to talk about his own history, both tragic and fulfilling.

I simply do not have adequate evidence before me to assess the negative impact his experiences had on the voluntariness of his statements in these circumstances. [ 28 ] It was clear from the video that Mr. Camille did not present as someone who was intimidated by the police in any manner. He would become confrontational or silent as he chose. He leaned in comfortably toward Cpl. Bell when he wanted to hear better or when he was engaged in the topic of discussion. [ 29 ] Mr. Camille did have some hearing difficulties. These were much improved when he was provided with a hearing aid.

However, there were times throughout the three sets of statements that he did not seem to hear what was being said. Ms. Firestone argued that sometimes this was genuine and sometimes it was tactical. I agree. She cited occasions when Mr. Camille would answer questions appropriately but then had difficulty hearing when it was something he did not want to discuss. What was clear was that he was not intimidated by the police on any of those occasions, whichever was the cause of his hearing difficulty. [ 30 ] Mr. Camille’s age is not necessarily a factor. His is 66 years of age, which is not particularly elderly. Mr.

Camille certainly had physical disabilities arising from arthritis and he undisputedly struggled with his hearing. However, he was bright, alert and often contemplative. [ 31 ] Mr. Walker argued that Mr. Camille suffered from memory deficits. Certainly the minutiae of day-to-day-life were not impressed upon his memory. However, Mr. Camille’s adherence to the specifics of not only long term memories but shorter term ones belies any significant memory deficit.

In order for me to find that he was suffering, as he claimed, from dementia or Alzheimer’s I would need evidence in the form of a proper medical diagnosis and opinion. [ 32 ] Mr. Camille’s sense of confusion also presented itself. Ms. Firestone argued that this appeared to be confusion about time stamps and the issue of timing of certain events, as opposed to confusion of the mind. Corporal Bell agreed that there were times Mr. Camille was unclear about his memory on such things as the timing of the arrival of groceries. However, Ms. Firestone argued these were not a product of any form of dementia because Mr.

Camille was able to correct Cpl. Bell on other points tied to his memory. [ 33 ] Even if there is a doubt that he may be suffering from a failed memory, Ms. Firestone argued that it must still be established that his will was overborne as a result. In this case, she argued, Mr. Camille played games with Cpl. Bell. [ 34 ] As Ms. Firestone argued, Mr.

Camille’s lack of memory surrounding the delivery of groceries; what he ate the night before, if anything; and how many bottles of alcohol they purchased on which days the week prior are otherwise just as much a function of the lack of importance of such details and of his impairment by alcohol, as any possible memory deficit arising from possible dementia. [ 35 ] Mr. Walker argued that police should not attempt to take an admission from a person suffering from dementia. This is too broad a proposition. Certainly in marked or obvious cases of dementia it would be inappropriate to conduct such an interview.

There was

nothing in the interviews that would suggest the police ought to have made inquiries into whether Mr. Camille was suffering fromdementia. His bald statement that he had Alzheimer’s or others thought he was having memory problems was not supported by anymedical evidence and was not stated in any way that should have alerted the police to a prevailing condition. [36] Mr. Walker argued that Mr. Camille could not provide the finer details of the death of Mr. Adolph including what was said;what was used; or where the knife had been placed. He argued the only reasonable conclusion was that Mr.

Camille did not know andhad no memory of the event the police were accusing him about. I do not agree. Mr. Camille was sometimes confrontational and oftenevasive. Certainly some parts of his memory may have been affected by alcohol. That being said, I cannot conclude that he had nomemory of the events, or that memories were created for him. [37] Nor was Mr. Camille intellectually vulnerable.

He attended college, obtained good grades and, for a time, attended university.He spoke in the casual language of ordinary people, complete with grammatical lapses, but was otherwise eloquent and imaginativewhen relating events from his life. His language was sometimes riveting and poignant. He was often humorous and clever. At theconclusion of the interviews, Mr. Camille said he had only been sparring with the police. [38] Mr. Walker argued that his comment about sparring was only a product of the technique used by the police. Mr.

Walkersubmitted that people with dementia are good at covering their failed memories with reasons as a way of compensating. I have no suchevidence before me and cannot take judicial notice of it. My own personal experiences, even if they accorded entirely with Mr. Walker’ssubmissions, are irrelevant to the assessment. [39] As Mr. Walker argued, it is important to understand the reasons for the confessions rule. These reasons are set out in thedecision of R v. Thaher, 2016 ONCJ 113 , 2016 O.N.C.J. 113: [20] In R. v.

Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405, the Supreme Court of Canada re-affirmed (at para. 29) that concernsabout reliability are the primary reason for the confessions rule and the rule is "largely informed by the problem of false confessions".This had been explained earlier in Oickle (at para. 32): . . . [T]he confessions rule is concerned with voluntariness, broadly defined. One of the predominant reasons for this concern is thatinvoluntary confessions are more likely to be unreliable.

The confessions rule should recognize which interrogation techniquescommonly produce false confessions so as to avoid miscarriages of justice. The Court also pointed out that regard must be had to the societal interest in the investigation of crimes. These objectives are notmutually exclusive. There is of course no societal interest in obtaining false confessions. [21] The growing recognition of the problem of false confessions plays a large

part in the modern formulation of the confessions rule,as articulated in Oickle. In that case, the Court recognized four types of false confessions, adopting the classification explained in R.J.Ofshe and R.A. Leo, "The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions"(1997), 16 Stud. L.

Pol. & Soc. 189 (Ofshe & Leo (1997)) (at paras. 38-41): According to Ofshe & Leo (1997), supra, at p. 211, stress-compliant confessions occur "when the aversive interpersonal pressures ofinterrogation become so intolerable that [suspects] comply in order to terminate questioning". They are elicited by "exceptionally stronguse of the aversive stressors typically present in interrogations", and are "given knowingly in order to escape the punishing experience ofinterrogation" (emphasis in original). See also Gudjonsson & MacKeith ["Retracted Confessions: Legal, Psychological and PsychiatricAspects" (1988), 28 Med.

Sci. & L. 187]. Another important factor is confronting the suspect with fabricated evidence in order toconvince him that protestations of innocence are futile: see ibid.; Ofshe & Leo ["The Decision to Confess Falsely: Rational Choice andIrrational Action" (1997), 74 Denv. U.L. Rev. 979 (1997a)] at p. 1040. Somewhat different are coerced-compliant confessions. These confessions are the product of "the classically coercive influencetechniques (e.g., threats and promises)", with which the Ibrahim rule is concerned: Ofshe & Leo (1997), supra, at p. 214.

As Gudjonsson& MacKeith (1988), supra, suggest at p. 191, "most cases of false confession that come before the courts are of the compliant-coercedtype". See also White, ["False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions" (1997), 32 Harv. C.R.-C.L.L. Rev. 105] at p. 131. A third kind of false confession is the non-coerced-persuaded confession. In this scenario, police tactics cause the innocent person to"become confused, doubt his memory, be temporarily persuaded of his guilt and confess to a crime he did not commit": Ofshe & Leo(1997), supra, at p. 215.

For an example, see Reilly v. State, 355 A.2d 324 (Conn. Super. Ct. 1976); Ofshe & Leo (1997), supra, at pp.231-34. The use of fabricated evidence can also help convince an innocent suspect of his or her own guilt. A final type of false confession is the coerced-persuaded confession. This is like the non-coerced-persuaded, except that the interrogationalso involves the classically coercive aspects of the coerced-compliant confession: see Ofshe & Leo (1997), supra, at p. 219.

As will be developed throughout these reasons, my primary concern in this case is with the third category, the "non-coerced-persuadedconfession". [40] Corporal Bell had an interview plan in place that included an accusation and persuasion phase. The persuasion phase was topersuade Mr. Camille to talk to him while the accusation phase was to challenge inconsistencies between what Mr. Camille was sayingand what the evidence presented. Throughout, Mr. Camille was not reluctant to correct Cpl.

Bell when he made an error, or from sayingthat he could not remember something if he either actually forgot something or was unwilling to talk about the particular incident. [41] After Mr. Camille admitted that he had killed Mr. Adolph, Mr. Camille told Cpl. Bell that he was just sparring with him andknew that he would confess eventually. He denied that he was trying to outsmart the team but knew he would confess because he lovedMr. Adolph. [42] After Cpl. Bell left the room on that occasion, Mr. Camille had a monologue admitting he wanted to spar with the police and

that he wanted to take the consequences. He said to himself that he cracked under the pressure, but then said that “pressure” was over the money that Mr. Adolph was taking from him. However, he also said that he “couldn’t take the interrogation”. He asserted on his way back to the cells that he was just playing head games with Cpl. Bell and that he liked Cpl. Bell. [ 43 ] Mr. Walker argued that to the extent Mr. Camille has made a confession, it is a non-coerced persuaded confession and/or a stress compliant confession. [ 44 ] I find that this is not a stress compliant confession in any respect. While Mr. Camille certainly felt pressured by his

part in what transpired with Mr. Adolph, the stress was not entirely or even mostly the product of the environment he found himself in, the questions that were posed to him or the manner in which he was interviewed. It cannot be said that any of the interviews created an environment so intolerable that Mr. Camille was compelled to make a confession. [ 45 ] Nor were his circumstances particularly oppressive. He was given a choice of whether to eat or not, to go to the washroom or not, and to have extra bedding for his cell. He was not deprived of any of the necessities at any point.

He also referenced having food available to him in his cell and that he had learned not to eat much in lean times. [ 46 ] Apart from his final soliloquy, there is no evidence that the pressures and interrogation were so intolerable that Mr. Camille confessed in order to terminate the questioning. This was not a punishing interrogation. Mr. Camille was afforded many comforts and he often controlled the direction of the conversation. While he was clearly relieved that the interviews had come to an end, there is no indication that he confessed to achieve that end. [ 47 ] The question is whether Mr.

Camille is fragile due to a combination of his history as an indigenous person in this country, his attendance at First Nations School, his marginalization in society, his age, his disabilities and his poverty. Mr. Walker argued that it is not enough to say that Mr. Camille is intelligent and articulate and referred to paragraph 42 of Oickle, supra : [42] From this discussion, several themes emerge. One is the need to be sensitive to the particularities of the individual suspect.

For example, White, supra , at p. 120, notes the following: False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especially vulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rare instances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of the interrogation.

And indeed, this is consistent with the reasons of Rand J. in Fitton, supra , at p. 962: The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.

Ward, supra , and Horvath, supra , similarly recognized the particular circumstances of the suspects that rendered them unable to confess voluntarily: in Ward , the accused's state of shock, and in Horvath , the psychological fragility that precipitated his hypnosis and "complete emotional disintegration" (p. 400). [ 48 ] Mr. Walker invited the court to extend the special considerations for indigenous people in much the same manner as in the Australian cases of R v. Anunga, (1976), 11 A.L.R. 412 and R. v. Dumoo (citation not provided). As Ms.

Firestone pointed out, it is unknown whether Australia has a similar constitutional protection of rights such as our Charter of Rights and Freedoms or what its accepted criminal practices and procedures may be. In any event, in those decisions the courts recognized certain factors that are common with First Nations people in Canada and certain factors that are not. For instance, in Anunga the cou rt pointed out that aboriginal people often do not understand English or, if they do understand, they do not understand concepts.

Because many of our local First Nations have suffered a substantial loss of language and culture as a product of the harmful legacy of our colonial history and its continuing effects, English is in predominant use amongst the First Nations people who appear before this court in Kamloops. In any event, specific to Mr.

Camille, he is not only fluent in English, but eloquent in it. [ 49 ] While I would not go so far as the Australian courts have, I would say that the individual experiences of a First Nations person who, for example, has gone to residential school (or suffers the consequences of multi-generational family exposure to residential schools), suffered abuse, and may have resultant traumas or post-traumatic stress disorder as a result of any part of this experience, may present as particularly fragile or intimidated.

These are factors to be taken into consideration with proper evidence of that trauma, post- traumatic stress disorder, fragility or intimidation in the specific circumstances of the individual accused. It is not a presumptive blanket cloaking all First Nations people in every case, because the experiences and impacts are as individual as each person. This is why the issue of voluntariness requires an individual assessment. [ 50 ] Mr. Walker argued that to find an admission voluntary beyond a reasonable doubt, the court must find the Crown has proved the interview techniques did not overcome the will of Mr.

Camille. This requires an examination of not only the questioning and circumstances of questioning, but also the effect the questioning had on Mr. Camille. [ 51 ] With respect to the interviews themselves, Mr. Walker argued that the police had been discussing the timing of Mr. Camille’s arrest as early as January 27, 2016. Mr. Camille was not arrested until February 5: the Friday of the long weekend. The witnesses said this was because charge approval was not granted until then.

They had been “ready to move” as soon as such approval was granted. [ 52 ] I am asked to take judicial notice that arrests on Friday are often an intentional strategic part of the interviewing process. I cannot do so. I am not aware of any procedural standard in police arrests that has achieved the status of community knowledge that would allow me to take such notice. While it seems obvious that an arrest on a Friday of a long weekend would certainly keep Mr. Camille away from the courts and his lawyer longer, I have no evidence that this was strategic or even a common practice.

In this case, it is to the contrary. The evidence is that charges had been submitted some days before and not approved until the Friday.

[ 53 ] Mr. Walker also argued that the length of the interrogations was unduly long. While Ms. Firestone had cut out most of the washroom and meal breaks in her calculations, Mr. Walker argued that the court has to take into consideration the entire time that Mr. Camille was in custody. He was arrested on Friday, February 5, 2016 at approximately 7:15 p.m. The last interview concluded 42 hours later. I do not accept that either approach is an absolute one in every case. The proper assessment is what transpired over what time and in what environment in each individual case. [ 54 ] Mr.

Camille was afforded the right to counsel that first evening, which counsel was an Osmond lawyer. That telephone call lasted approximately 10 minutes. After this time, Mr. Camille was afforded the opportunity to rest or sleep as he chose until approximately 10:00 a.m. on February 6, 2016. [ 55 ] Before his first interview, Mr. Camille was afforded an in-person meeting with his counsel for about 20 minutes and then was remanded in custody through a Justice of the Peace hearing. [ 56 ] The first interview was conducted at 1:30 on February 6. The last interview concluded that day at approximately 11:00 p.m.

There were meal, rest and washroom breaks between these interviews but Mr. Walker argued that the entire process was a long 13 hours for Mr. Camille. It most certainly was. However, it was not an unduly onerous 13 hours nor a span of time in which Mr. Camille was denied necessities or even comforts. [ 57 ] Cpl. Bell conducted his interview largely in accordance with a specific plan involving introduction to Mr. Camille, ensuring he had his legal advice, establishing rapport, using a transitional phase where an assessment of statements is made, and moving to a version challenge phase where Mr.

Camille was challenged with the evidence or his statements. There was supposed to be a pure version statement phase as well where Mr. Camille would provide a statement without questioning. This, however, did not happen because Mr. Camille never provided such a statement. The plan was to conclude with an accusation and persuasion phase, which Mr. Walker argued was to have the accused person (Mr. Camille) fill in the gaps between the evidence. The purpose of the accusation phase is to wrap up the interview and obtain a confession. [ 58 ] Mr. Walker said that in order to follow this plan Cpl.

Bell used certain techniques during the interviews, including keeping Mr. Camille talking when he asserted his right to silence. Mr. Walker said this happened on a total of 84 occasions, including 12 on the January 26, 2016 statement and 17 on the final interview of February 7, 2016. [ 59 ] Mr. Walker said Cpl. Bell also described himself as independent from the investigating officers, although he is in fact an elite member of the “E” Division interviewing team. Mr. Camille was not made aware that there was a “team” of people assisting Cpl. Bell in the interview. I find there was nothing inaccurate in what Cpl.

Bell said, nor anything deceptive in not telling Mr. Camille who else was working on the case. [ 60 ] Mr. Walker argued that Cpl. Bell maintained control over all aspects of the interviews on February 6 and 7 including the length, duration, food breaks and bathroom breaks. It is true that Cpl. Bell had control over all aspects of the interviews. However, the breaks afforded to Mr. Camille were frequent. Mr. Camille retained control over whether he would eat or take advantage of the breaks afforded to him. [ 61 ] The police also had control over Mr. Camille’s cell. Mr.

Camille had complained that he could not sleep and was kept up by noise in the cell block. There is no evidence that the police deliberately created a noise disturbance to prevent Mr. Camille from sleeping. There is evidence that he was removed as much as possible from the noises of the cell block. There is also evidence that he slept well on the second night. [ 62 ] Mr. Walker argued Cpl. Bell maintained control over what evidence Mr. Camille would be shown and what would be kept from him. This is an accurate characterization of how the evidence was produced to Mr. Camille.

However, he was given opportunity to be left on his own to examine the evidence and to consider what he had been told. [ 63 ] Mr. Walker argued that Cpl. Bell engaged in memory creation or undermining Mr. Camille’s memory such as how long Mr. Camille and Mr. Adolph had lived at the motel; which room Mr. Camille and Mr. Adolph had been living in; misrepresenting that witnesses had heard an altercation or a fight when in fact the witness described it as partying; showing three segments of a video meant to both challenge Mr.

Camille’s memory and to impress upon him that no one else had come and gone from the room; and the issue of missing groceries which were not missing. [ 64 ] Ms. Firestone argued that it was important Cpl. Bell was never asked what information he had been given. For the police to mislead Mr. Camille, Cpl. Bell had to know whether his information matched with what the witness had said. Even if Cpl. Bell had deliberately misled Mr.

Camille with the evidence of a fight or missing groceries or otherwise, such misstatements or misrepresentations are not such conduct that would shock the community or, more to the point, overbear Mr. Camille’s will. [ 65 ] In the end result, Ms. Firestone argued, there is no evidence that memories were created for Mr. Camille. There is no evidence of what he was thinking. There is no evidence that the interviewing was particularly onerous for Mr. Camille. Asserting his right to remain silent was not evidence of him getting tired. [ 66 ] Ms.

Firestone also urged caution when referring to memory creation or undermining memories. She argued that establishing “known things” does not change a memory so much as it confronts or accuses that memory with a truth. Such a confrontation does not necessarily change a memory but is part of the process of challenging it. [ 67 ] When confronted with inaccurate evidence, Mr. Camille did not accede to it. When he was told that an argument had been overheard, he never agreed that there was an argument. It was Mr. Camille who raised the motive for why he stabbed Mr. Adolph: Mr.

Adolph had taken his bank card and was depleting his financial resources. [ 68 ] Mr. Walker argued that the statements were replete with examples of Mr. Camille’s inability to remember facts, yet the questioning continued. Every time Mr. Camille offered his own explanation of waking up to give Mr. Adolph a drink only to discover he

was dead, this version was rejected by Cpl. Bell. [ 69 ] Mr. Walker described the questioning in these videos as repetitive, relentless and with the sole purpose of obtaining an admission from Mr. Camille that he had killed Mr. Adolph. [ 70 ] Mr. Walker also argued that Mr. Camille repeated “you got what you wanted” over and over as a reflection of his feeling of hopelessness and his desire to end the interview. I do not agree. It was evident that Mr. Camille was only prepared to give so much evidence to the police recognizing that they had already pieced the story together.

There was nothing hopeless in his manner. In fact, he seemed so relieved from his burden that he was ravenous for the first time in two days, consuming the lunch provided for him when Cpl. Bell left the room. That he refused to provide further details confirming what had happened and where the knife had been placed was not a reflection of feeling hopeless and giving the police what they wanted, so much as it was

an act of defiance. [ 71 ] The various cases provided to me set out factors the courts have considered in determining whether an accused person’s will was overborne including the length of the interview, ignoring the right to silence, the use of non-existent evidence, the specific circumstances of the accused, and the nature of the questioning. Mr. Walker urges me to consider Mr. Camille’s confession as a stress compliant confession or a non-coerced persuaded confession as a result of all of the circumstances of Mr. Camille’s interviews.

I need not find that it was in fact a false confession but that the Crown has not proved beyond a reasonable doubt that the statement was made in circumstances of free will. [ 72 ] It is true that Mr. Camille said on a number of occasions that he could not hear what was being said; that he did not know what happened; that he was exercising his right to silence; and that he had trouble remembering details. There are also examples of explicit denials from Mr. Camille. He repeatedly alerted the police to his vulnerabilities with self-diagnosed dementia, alcoholism and his own personal residential school experience.

Mr. Walker argued that this amounted to the pressures Mr. Camille felt which are reflected in his soliloquies, particularly after the confession. [ 73 ] I find that Mr. Camille’s statement given over a period of three days is voluntary. I am not satisfied that whatever deficits he suffers from were sufficient to raise a reasonable doubt that his will was overborne by the persistence of the police in questioning him. While Mr.

Camille had some trouble remembering the finer details of events and clearly suffered consequences of his residential school experience throughout his life, I am not satisfied that he suffered from dementia or that he was confused, fragile, doubted his memory or was temporarily persuaded of his guilt, leading to a confession. I am satisfied that the Crown has proved beyond a reasonable doubt that the statements given were voluntary and I rule them admissible. _______________________________ S.D. Frame Provincial Court Judge