R. v. Arnakallak, 2014 NUCJ 12

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Arnakallak, 2014 NUCJ 12 Date: 20140401 Docket: 11-11-135 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Ruben Arnakallak ________________________________________________________________________ Before: The Honourable Mr. Justice A. Mahar Counsel (Crown): B. McLaren Counsel (Accused): A. Crowe Location Heard: Iqaluit, Nunavut Date Heard: December 20-21, 2012 Matters: Voir dire regarding the voluntariness and admissibility of statements made by the accused to police REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) Disclaimer

Ban on publication: Publication of this voir dire was prohibited until the completion of the trial, under section 517(1) (

b) of the Criminal Code of Canada, RSC 1985, c C-46 . This prohibition was lifted October 21, 2014. I. INTRODUCTION [ 1 ] The Crown seeks to have admitted into evidence, for cross-examination purposes only, statements made by the accused to the police while he was in custody after his arrest on a charge of second degree murder in the death of his brother. These statements were recorded and transcribed. [ 2 ] The Defence has challenged the admissibility of the statements on both voluntariness and Charter grounds, specifically claiming that the accused was denied his right to remain silent, in violation of

section 7, and denied an opportunity for further consultation with counsel, in breach of

section 10(b). II. ANALYSIS [ 3 ] The Charter right to remain silent has, over the past number of years, been incorporated into the common-law requirement of voluntariness. This blending operates to the benefit of the accused. The Crown has the burden of proving a statement voluntary beyond a reasonable doubt, rather than the onus being on the accused to prove a Charter violation on the balance of probabilities. While there are conceivable scenarios in which the Charter would apply and the issue of voluntariness would not, these would arise rarely and certainly do not in this case. [ 4 ] On the issue of the right to consult counsel under

section 10(

b) of the Charter, the accused spoke to a representative from Nunavut Legal Aid for approximately 45 minutes. The call ended when the consultation was over. The accused gave no indication, at that time, that he wished to further consult with counsel. Later, during the interview process, he did make this request a number of times. The accused appeared to have no difficulty with either comprehension or expressing himself. [ 5 ] The law is clear that an accused person does not have the right to repeated contact with counsel, unless there is a change in the jeopardy he is facing.

The Defence suggests that the accused ought to have been given a further opportunity to speak to counsel after he had been informed of the details of the evidence against him. This did not constitute a change in jeopardy and, therefore, no right to a secondary consultation with counsel was engaged. [ 6 ] The fact that he was not asked if he was satisfied with the advice he received is of no effect.

While this question is commonly posed by the police, the failure to do so is, in this case and most others, simply irrelevant. [ 7 ] The issue that I am left to consider is voluntariness, and as stated above on that issue, the Crown bears the onus of proving the statement is voluntary beyond a reasonable doubt. [ 8 ] On the night of November 24 and early morning of November 25, 2011, in the Hamlet of Pond Inlet, Nunavut, the accused and a number of other people were drinking heavily. The accused was taken into custody on a charge of mischief, essentially for passing out on a friend’s floor.

While he was sleeping it off in cells, the RCMP discovered that his brother, Isa, had been killed. Evidence was obtained that led them to charge the accused. When he awoke he was informed of the charges against him, given an opportunity to consult counsel, and then questioned for approximately 5 hours. [ 9 ] The issue of voluntariness is complicated in this case. The accused was not reluctant to talk to the police. He appears to have been genuinely shocked to learn of the death of his brother and the possibility that he may have caused it. He becomes distraught and very emotional.

He actively seeks information from the police. He is quick to claim a virtually complete lack of memory, and this assertion continues basically unchanged throughout the statement. He voluntarily speaks with the police. The difficulty arises because the police do not accept his lack of memory.

[ 10 ] During the earlier part of the statement he is told by Constable MacDonald that he is free to end the interview at any time (Warned Statement of Ruben Arnakallak (November 25, 2011), at 27-28). The accused has a voluntary conversation with the officer. [ 11 ] The police next show him a video of his common-law spouse, in which she begs him to tell the truth. The questions become much more pointed. His lack of memory is repeatedly challenged. All of this is within acceptable bounds, but the accused is obviously becoming frustrated and worn down by this process.

He actually asks the investigator if they want him to lie, to pretend to remember what he does not. Eventually, he asks on a number of occasions, to be returned to his cell. At this point Constable MacDonald refuses to allow this. He tells the accused, in no uncertain terms, that the interview will end when the police decide it ends and that he is not free to leave the room. The following exchange is informative (Warned Statement of Ruben Arnakallak (November 25, 2011), at 95): ARNAKALLAK: I thought you said I can go to my cell anytime I want?

MacDONALD: Yeah well, you’re under arrest, so you have to listen to the police and I’m the police and right now, we’re gonna talk about what happened between you and your brother. ARNAKKALAK: I should start lying(?). MacDONALD: No, I don’t want you to lie. I want you to tell the truth. ARNAKALLAK: I am telling the truth. I’ve been telling the truth. [ 12 ] What follows in the Transcript of the Accused’s statement, is 88 pages of highly suspect speculation by the Accused about what might have occurred.

It adds nothing to the case against him, and any detail found in those pages which might found the basis for questions in cross-examination would have extremely limited weight. The fact that the police initially misled the accused about their willingness to allow him to return to his cell is an important factor in determining the impact that the subsequent change in tactic had on the ability of the accused to exercise his free will.

The combination of the Accused’s emotional state and this tactic, which would have left him with the understanding that the interview was going to continue until he told them what they wanted to hear, render any subsequent comments by the Accused involuntary and unreliable. III. CONCLUSION [ 13 ] The first 94 pages of the transcript of the accused’s statement are ruled voluntary and thus admissible as evidence; pages 95 to 183 are ruled not voluntary and not admissible. Dated at the City of Iqaluit this 1st day of April, 2014. ____________________ Justice A. Mahar Nunavut Court of Justice