R. v. Mucpa, 2021 NUCJ 24

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Mucpa, 2021 NUCJ 24 Date: 2021 0312 Docket: 11-17-193 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Tommy Mucpa ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): M. Welch, G. Lyndon Counsel (Accused): S. Siebert, J.

Bedford Location Heard: Iqaluit, Nunavut Date Heard: February 24, 25 and 26, 2020; August 24, 25, and 26, 2020; February 12, 2021 Matters: Blended voir dire on admissibility of oral statements made by the accused REASONS FOR DECISION (NOTE: This document may have been edited for publication)

Table of Contents I. BACKGROUND .. 4 II. THE STATEMENTS . 4 A. Mr. Mucpa calls the RCMP on a cell phone on July 3 . 4 B. Interactions between Mr. Mucpa and the police on July 3 . 5 C. Mr. Mucpa takes the police to find Ms. Erkloo’s body on July 3 . 5 D. Mr. Mucpa gives cautioned statements to the police . 5 E. The visit by Mr. Mucpa’s mother and Mr. Mucpa’s statements to her . 5 III. THE LAW ... 6 A. The confessions rule and voluntariness . 6 B. Canadian Charter of Rights and Freedoms , sections 10(b), 24(2) . 7 i.

Section 10(b) - right to counsel 8 ii. Section 24(2) - the admission, or exclusion of evidence obtained by a Charter breach . 8 IV. THE ISSUES . 9 V. POSITIONS OF THE PARTIES . 9 A. The Defence . 9 i. The common law confessions rule and voluntariness . 9 ii. Mr. Mucpa’s criminal record . 10 iii. The alleged violations of Mr. Mucpa’s

section 10(b-rights . 10 iv. Section 24(2) 10 B. The Crown . 11 i. The common law confessions rule and voluntariness . 11 ii. Mr. Mucpa’s criminal record . 11 iii. The alleged violations of Mr. Mucpa’s

section 10(

b) rights . 12 iv. Section 24(2) 13 VI. ANALYSIS . 13 A. Mr. Mucpa’s criminal record . 13 B. Mr. Mucpa’s cell phone call to RCMP dispatch on July 3 . 14 C. The contested statements . 16 i. Statements made to Cst. Longmire on the detachment steps on July 3 . 16 C.i.1 Facts . 16 C.i.2 Defence Counsel 16 C.i.3 Decision . 16 ii. Statements made to Cst. Longmire in booking on July 3 . 17

C.ii.1 Facts . 17 C.ii.2 Defence Counsel 18 C.ii.3 Decision . 18 iii. Statements made by Mr. Mucpa to Cst. Austring while in detachment cells on July 3 at 14:08 . 19 C.iii.1 Facts . 19 C.iii.2 Defence Counsel 20 C.iii.3 Decision . 21 iv. Statements made to Cst. Longmire from 14:52 to 16:47 on July 3 . 21 C.iv.1 Facts . 21 C.iv.2 Defence Counsel 23 C.iv.3 Decision . 24 v. Mr. Mucpa takes the police to find Ms. Erkloo’s body on July 3 . 24 C.v.1 Facts . 24 C.v.2 Defence Counsel 26 C.v.3 Decision . 27 vi. Mr. Mucpa gives a cautioned statement to Cpl.

Jean-Sebastien Pigeon on July 4 from 09:45 to 11:29 29 C.vi.1 Facts . 29 C.vi.2 Defence Counsel 31 C.vi.3 Decision . 32 vii. Mr. Mucpa gives a second cautioned statement to Cpl. Jean-Sebastien Pigeon on July 4 from 12:48 to 13:03 33 C.vii.1 Facts . 33 C.vii.2 Defence Counsel 33 C.vii.3 Decision . 33 viii. Mr. Mucpa makes statements during the visit by his mother in the presence of Cpl. Pigeon on July 4 34 C.viii.1 Facts . 34 C.viii.2 Defence Counsel 34 C.viii.3 Decision . 35 VII. CONCLUSION .. 36 I. BACKGROUND [ 1 ] The accused, Tommy Mucpa, stands charged with the second-degree murder of his aunt, Dorcas Erkloo.

Ms. Erkloo died on July 3, 2017, in Pond Inlet. The police charged Mr. Mucpa that same day after he turned himself in at the local RCMP detachment. The Court committed Mr. Mucpa to stand trial after a preliminary inquiry which ended on November 7, 2018. [ 2 ] Mr. Mucpa’s lawyers have applied to the Court for a pre-trial order excluding from evidence a series of oral statements made by Mr. Mucpa either to or in the presence of the police. The Defence objects to the admission of the various statements made by Mr.

Mucpa to the police on the basis of the common law confessions rule and alleged violations of his right to counsel. [1] The Defence also objects

to any use by the Court of Mr. Mucpa’s criminal record in the voluntariness analysis. [ 3 ] I heard evidence on the blended [2] voir dire on February 24, 25 and 26, August 24, 25, and 26, 2020 and lawyers’ submissions on February 12, 2021. These are my reasons for decision. II. THE STATEMENTS [ 4 ] I shall first discuss the categories of statements made by Mr. Mucpa in this case. The statements made by Mr. Mucpa on July 3 and 4, 2017 can be categorized in five broad categories: A. Mr. Mucpa calls the RCMP on a cell phone on July 3 [ 5 ] Mr.

Mucpa called the police on July 3 at 13:35 to say that he was en route to the detachment to turn himself in. The contents of this single call are contained in five transcripts. These transcripts are found at Tabs 1 through 5 in voir dire exhibit 4A. I shall refer to the contents of this call later in my analysis. The Defence admits that these statements are admissible in evidence. [ 6 ] The Defence contests the admissibility of the remaining statements which I now list and which are found in Tabs 6 through 13 of exhibit 4A. B. Interactions between Mr. Mucpa and the police on July 3 [ 7 ] Mr.

Mucpa was sitting on the detachment steps when Cst. Kyle Longmire arrived at about 13:45. Cst. Longmire questioned Mr. Mucpa, then detained Mr. Mucpa for murder and gave him his rights from memory. Cst. Longmire did not make notes until two and a half hours later. [ 8 ] Mr. Mucpa made statements in the booking area of the detachment. [ 9 ] Mr. Mucpa made statements in his cell in the presence of Cst. Bayden Austring at about 14:08. [ 10 ] Cst. Longmire recorded Mr. Mucpa’s arrest at about 14:08. C. Mr. Mucpa takes the police to find Ms. Erkloo’s body on July 3 [ 11 ] Mr.

Mucpa guided the police to the spot where they found Ms. Erkloo’s body, and he made incriminating statements during the process. Mr. Mucpa had previously spoken only briefly with Legal Aid duty counsel (duty counsel) who was waiting to be contacted so he and Mr. Mucpa could finish Mr. Mucpa’s consult (the “10(b)-call”). D. Mr. Mucpa gives cautioned statements to the police [ 12 ] Mr. Mucpa gave two formal cautioned statements to major crimes investigator Cpl. Jean Sebastien Pigeon on July 4: the first from 09:45 to 11:29, and the second from 12:48 to 13:03.

E. The visit by Mr. Mucpa’s mother and Mr. Mucpa’s statements to her [ 13 ] Mr. Mucpa made incriminating statements to his mother in front of Cpl. Pigeon in the detachment on July 4 from 15:30 to 15:48. III. THE LAW A. The confessions rule and voluntariness [ 14 ] The Supreme Court of Canada case of R v Oickle [3] continues to be the leading authority concerning the admissibility of statements made by an accused person to a person in authority.

The case headnote accurately summarises the purpose and purport of the rule: In sum, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness.

Voluntariness is the touchstone of the confessions rule and a useful term to describe the various rationales underlying the rule. [4] [ 15 ] Speaking on behalf of the majority in Oickle , Iacobucci J outlined the following “contextual” and “relevant” factors which inform the voluntariness analysis: … threats or promises … oppression … the operating mind requirement … police trickery … veiled threats … inducements … whether standing alone or in combination with other factors … An important consideration in all cases is to look for a quid pro quo offer by investigators, regardless of whether it comes in the form of a threat or promise … whether a suspect was deprived of food, clothing, water, sleep, or medical attention; was denied access to counsel; was confronted with fabricated evidence; or was questioned aggressively for a prolonged period of time. [5] [ 16 ] At its core, the confessions rule requires the judge to determine whether the will of the accused to resist giving a confession was overborne by unlawful police conduct. [ 17 ] Along with this analysis, the rule also requires the judge to evaluate whether the suspect had an operating mind at the time he spoke to the police. [6] The exact scope of the operating mind requirement was later explained by the Supreme Court of Canada in R v Whittle .

Sopinka J on behalf of the Court stated: The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused. [7] [ 18 ] The following reminder from the Supreme Court of Canada in R v Singh is also instructive: What the common law recognizes is the individual’s right to remain (sic) silent.

This does not mean, however, that a person has the right not to be spoken to (sic) by state authorities. The importance of police questioning in the fulfillment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident.

Therefore the common law recognizes the importance of police interrogation in the investigation of crime. [8]

[ 19 ] The burden of persuasion concerning voluntariness lies with the Crown on the basis of proof beyond a reasonable doubt. In this context, whenever I say I am satisfied, I am saying that the Crown has proven its case beyond a reasonable doubt. [ 20 ] If I rule a statement not to have been made voluntarily, then the statement may not be admitted into evidence. In such a case, there is no need to conduct a Charter analysis. However, if I rule a statement to have been made voluntarily, then I must conduct a Charter analysis. B. Canadian Charter of Rights and Freedoms , sections 10(b), 24(2) [ 21 ] The Defence has also pleaded sections 10(

b) and 24(2) of the Charter . i.

Section 10(b) - right to counsel [ 22 ]

Section 10(

b) of the Charter reads, 10 Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [ 23 ] There are two aspects to the right conferred by

section 10(b) (the 10(b)-rights). First, the police must inform an accused of his right to counsel (the informational duty) and, second, they must provide the accused with a reasonable opportunity to exercise that right (the implementational duty). The fundamental issue for the reviewing judge is whether Mr. Mucpa’s decision to speak was “free and informed”. [9] ii. Section 24(2) - the admission, or exclusion of evidence obtained by a Charter breach [ 24 ]

Section 24 of the Charter reads, 24

(1) Anyone whose rights or freedoms, as guaranteed by the Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 25 ] How a judge decides whether evidence obtained via a Charter breach might yet be ruled admissible was canvassed by the Supreme Court of Canada in R v Grant . [10] Stated simply, a judge must apply a three-part test to the circumstances which gave rise to the police obtaining the evidence.

The judge must consider 1. The seriousness of the impugned police conduct; 2. The impact on the accused’s Charter -protected rights by that police conduct; and

3. Whether admission of the evidence at trial would bring the administration of justice into disrepute. [ 26 ] The burden of persuasion in a Charter challenge lies with the Defence on a balance of probabilities. IV. THE ISSUES [ 27 ] I must decide whether Mr. Mucpa’s criminal record may properly be tendered as evidence in the voir dire . [ 28 ] Then, in regard to each discrete category of statements, there are three issues I must decide: 1. Did Mr. Mucpa make the statements freely and voluntarily while having an operating mind? 2. Did the police breach Mr.

Mucpa’s right to counsel while obtaining his statements? and, 3. If the answer to question two is yes, are those statements inadmissible in evidence at his trial because its admission would bring the administration of justice into disrepute? V. POSITIONS OF THE PARTIES [ 29 ] I will now summarise the positions of the parties. A. The Defence i. The common law confessions rule and voluntariness [ 30 ] Defence Counsel submits that the Crown has not proven that Mr. Mucpa understood his right to silence and the legal implications of giving up that right.

Defence Counsel attributes this lack of understanding to the investigators who “on more than one occasion … misled him and misinformed (sic) about his rights because they provided him with incomplete and inaccurate explanations of his rights”. [11] Indeed, she maintained there were “over a half dozen opportunities” when investigators read Mr. Mucpa his rights without fulfilling their duty to explain those rights properly. [12] In the result, it cannot be said that Mr. Mucpa made his statements voluntarily. ii. Mr. Mucpa’s criminal record [ 31 ] The Crown tendered into evidence in a sealed envelope a copy of Mr.

Mucpa’s criminal record. Defence Counsel submits that the criminal record is irrelevant and not probative to any issue before the Court. She noted the absence of any case authority before the Court permitting its use on the voir dire . iii. The alleged violations of Mr. Mucpa’s

section 10(b-rights [ 32 ] Defence Counsel alleges Mr. Mucpa never communicated a “clear and unequivocal waiver of his right to counsel”. [13] In fact, the police violated Mr. Mucpa’s 10(b)-rights at every step in the process. I shall expand upon those concerns when I address each individual statement.

iv. Section 24(2) [ 33 ] Defence Counsel urged the Court to find that the police used Mr. Mucpa’s mother as a way to further their investigation. For that reason, Ida Mucpa ought to be considered an agent of the state, and Mr. Mucpa’s statements in her presence to be subject to Charter protection. [ 34 ] Defence Counsel summarised her objections to the police conduct on this point in her concluding comments: Every single officer in this case showed a disregard for Mr. Mucpa’s rights, from the very beginning of Constable Longmire choosing not to turn on his audio recording until he’s in the cell block.

He had it on his person and they knew from the very beginning that this was potentially a homicide case. So this is not a case where the RCMP begin an interaction with an individual and then halfway through realize, oh, my goodness, we may be dealing with more than we think. They knew from the beginning and they took sloppy notes. They often showed a cavalier attitude to Mr.

Mucpa’s rights; assuming that the person before them had properly Chartered him, assuming that he had been given a right to counsel, if he was read from the card that he must have consulted with counsel … to admit this evidence, is to condone this unacceptable police conduct … It’s in every interaction with Mr. Mucpa they fell in their duties. [14] [ 35 ] For these reasons, Defence Counsel urges the Court to rule all the contested statements to be inadmissible. B. The Crown i. The common law confessions rule and voluntariness [ 36 ] Crown Counsel submits that Mr.

Mucpa’s call to RCMP dispatch was the “seminal event” of the police investigation. [15] Mr. Mucpa knew that he was dealing with the police, went directly to the police station to confess, and knew that the police could use his words against him. Mr. Mucpa believed he was going to jail for what he had just done. This evidence shows that Mr.

Mucpa possessed an operating mind as understood at law. [ 37 ] Furthermore, Crown Counsel stressed that “there is no causal relation between the accused’s statements on 3 July 2017, and the actions of the police”. [16] This fact is an important piece of contextual evidence which buttresses the principles of both fairness and reliability. The police gave Mr. Mucpa his right to counsel and cautioned him “on multiple occasions” even though the caution is “not mandatory”. [17] Mr. Mucpa asserted his right to remain silent several times.

In the result, “where an individual for his own reasons wants to confess, the police have no obligation to stop him and try to dissuade him”. [18] ii. Mr. Mucpa’s criminal record [ 38 ] Crown Counsel asserted that Mr. Mucpa’s criminal record speaks to his experience in the criminal justice system. Mr. Mucpa had been “arrested and detained on multiple occasions” in the past and “on each one of those occasions, he would have been given his rights to counsel and caution”. [19] From Mr.

Mucpa’s prior dealings with the law, I ought to draw the “common sense inference” that the police had given him his 10(b)-rights on arrest in those previous interactions. Judges, he continued, “routinely entertain evidence and comment on whether or not an accused has been through the system before”. [20] [ 39 ] Therefore, I ought to find that Mr. Mucpa gave his statements freely and voluntarily.

iii. The alleged violations of Mr. Mucpa’s

section 10(

b) rights [ 40 ] The Crown concedes one allegation that the police violated Mr. Mucpa’s

section 10(b)-right to counsel at around 6 p.m. on July 3; when they asked Mr. Mucpa to show them where they could find Ms. Erkloo’s body. Prior to making their request, the police had a duty to offer Mr. Mucpa a chance to complete his consult with duty counsel. Had Mr. Mucpa declined to speak to a lawyer, the police then ought to have given him a “Prosper warning”. [21] This the police failed to do. [ 41 ] Crown Counsel asserts that the conduct of the police did not infringe Mr. Mucpa’s 10(b)-rights, apart from the one episode just canvassed. Prior to 6 p.m. on July 3, the police had given Mr.

Mucpa his 10(b)- rights on several occasions, and Mr. Mucpa had demonstrated that he had understood that right. Cst. Longmire had to “coax” Mr. Mucpa into speaking with duty counsel. Mr. Mucpa then discontinued his 10(b)-call feigning intoxication. [22] The Court should be satisfied that Mr. Mucpa “really didn’t want a lawyer”. [23] [ 42 ] Crown Counsel notes that Mr. Mucpa completed his 10(b)-call on July 4, and that this fact constituted a “fresh start” in the police investigation. [24] The statement obtained by Cpl. Pigeon, after Mr.

Mucpa had had a “fulsome” call with duty counsel, was not tainted by any undue pressure or tactics. [25] Similarly, the police acted properly in the way they facilitated Mr. Mucpa’s visit with his mother. iv. Section 24(2) [ 43 ] The Crown says that I ought to admit the statements made by Mr. Mucpa when he showed to the police the location of Ms. Erkloo’s body. The police cautioned Mr. Mucpa before asking him to cooperate. After getting off the phone with Corporal Burns, Constable Longmire clearly proceeded directly to Mr. Mucpa’s cell and clearly cautioned him according to the rules. Mr.

Mucpa said he understood. And then Constable Longmire in almost the same breath said, So given that, do you want to show us where the body is … Mr. Mucpa could only have concluded that he was being told that he was not obliged to show where the body was … Mr. Mucpa clearly had to speak to show them where the body was, and he was clearly willing to do so as he confirmed to Constable Longmire. [26] [ 44 ] Applying the Grant rubric, the Court ought to find that the breach was “not egregious or malicious”. [27] The police acted in good faith. The breach had but a minimal impact on Mr.

Mucpa’s 10(b- rights because “Mr. Mucpa was clearly going to confess in any event”. [28] Further, Ms. Erkloo’s body would have been found without Mr. Mucpa’s assistance. I should, therefore, admit the evidence. VI. ANALYSIS [ 45 ] I start my analysis with the Crown’s request to tender into evidence Mr. Mucpa’s criminal record. A. Mr. Mucpa’s criminal record [ 46 ] Relevance is the fundamental prerequisite for evidence to be admitted in a criminal proceeding. Evidence is relevant if its admission assists in establishing a fact in issue in the case.

The test for relevance is based on common sense and life experience within the context of the circumstances of the entire case. [29]

[ 47 ] As we have seen, the police have a constitutional duty to advise persons of their Charter rights on arrest or detention, as well as the duty to put them in touch with duty counsel. Nunavummiut have long had ready access to duty counsel upon detention or arrest. Duty counsel is available 24 hours a day seven days of the week; and duty counsel routinely advise their clients not to speak to the police. [ 48 ] The Crown’s case on this application turns on whether or not Mr. Mucpa understood that he had the right both to speak to a lawyer, and to remain silent.

In this regard, I draw the common-sense inference that a person’s familiarity with the criminal justice system would, of necessity, inform his understanding of his circumstances on arrest or detention. Mr. Mucpa is well acquainted with the criminal justice system. [ 49 ] The Crown tendered 11 certified copies of police charging documents called Informations covering the period between August 2009 and January 2013. During that period, Mr. Mucpa was charged and convicted on each one of those 11 Informations. I draw the only reasonable inferences that: Mr.

Mucpa was arrested by the police in each of those 11 cases; that each time he was arrested the police explained to him his right to counsel and right to silence; and that each time duty counsel had explained to him his right to silence. The Informations’ endorsements also reveal that Mr. Mucpa was represented by experienced counsel in each one of those 11 cases. [ 50 ] The fact of these prior 11 experiences with the criminal justice system are relevant and probative to the question of whether Mr.

Mucpa understood that he had a right to counsel and to remain silent on July 3 and 4 2017 when he decided to confess and to cooperate with the police in their investigation. [30] Consequently, I admit these Informations into evidence. B. Mr. Mucpa’s cell phone call to RCMP dispatch on July 3 [ 51 ] Even though its admissibility is not in issue, I turn next to the cell phone call (the call) because it provides probative and relevant evidence of Mr. Mucpa’s intentions and state of mind while he dealt with the police. The following statements made by Mr.

Mucpa during the call are noteworthy: I just killed my auntie man. Yeah. I can prove it to you. I got blood all over me. [31] Um he’s my witness so I let him watch the (sic) I killed my aunt. I killed her with my bare hands. I’m on my way down. I’m very close. I’m wearing (sic) blue hoodie and grey pants and brown shoes and black jacket. I’m on a cell phone. [32] [My brother-in-law] he’s looking for my friend. [33] I’m very close [to the detachment]. [It happened] near the tent. Maybe fifteen minutes from town. [34] I’m low on minutes. I’m walking towards the station.

I’ll just talk to you at the station. [35] [ 52 ] These statements by Mr. Mucpa show that he was lucid and oriented to time and place. He was even aware of the number of minutes he had left to him on the cell phone. He spoke clearly and with one minor exception, which he quickly corrected, he was directly responsive to the questions put to him. Mr. Mucpa also volunteered unsolicited information such as that his ex-brother-in-law witnessed the incident. There is no evidence suggesting Mr. Mucpa suffers from any cognitive deficit. [ 53 ] Mr. Mucpa called the police voluntarily.

I am satisfied on the evidence that Mr. Mucpa understood what he had done, that he

intentionally confessed to the dispatcher, and that he purposefully called to tell the police he was going to the police station to turn himself in and to speak with them. I am also satisfied that he had an operating mind and that his decision to call the police was not impaired by alcohol or any other substance. [ 54 ] This fact is highly relevant because it informs Mr. Mucpa’s continuing cooperative attitude towards the police investigation not only later on July 3, but into July 4 as well. C. The contested statements [ 55 ] I now turn to the contested statements.

In each case, I will briefly summarise the key proven facts, note Defence Counsel’s objections to admissibility where expressed, then explain my decision. i. Statements made to Cst. Longmire on the detachment steps on July 3 C.i.1 Facts [ 56 ] At 13:35 on July 3, Cst. Longmire was notified by dispatch that Mr. Mucpa was en route to the detachment. When Cst. Longmire arrived at the detachment Mr. Mucpa already was sitting on the stairs. When Cst. Longmire asked Mr. Mucpa to identify himself, Mr. Mucpa at first did not respond. [36] Mr. Mucpa then answered, “I killed her”. When then asked Mr. Mucpa who he killed.

Mr. Mucpa answered “Dorcas”. Cst. Longmire detained Mr. Mucpa for murder on the detachment steps. Cst. Longmire then advised Mr. Mucpa of his right to counsel and the police caution from memory. Mr. Mucpa “acknowledged what was said to him”. [37] Cst. Longmire did not notice any signs that Mr. Mucpa was intoxicated. Mr. Mucpa was responsive to Cst. Longmire’s directions. Cst. Longmire handcuffed Mr. Mucpa and took him directly to booking. Cst. Longmire did not record the interaction at that time. C.i.2 Defence Counsel [ 57 ] Defence Counsel asserts that the lack of a recording or contemporaneous notes by Cst.

Longmire during his initial encounter with Mr. Mucpa has created a gap in the evidence which undermines a finding of voluntariness. Defence Counsel also notes that Cst. Longmire reviewed the transcript of his testimony at the preliminary inquiry and alleges that he tailored his evidence on the voir dire . C.i.3 Decision [ 58 ] Cst. Longmire had but a limited independent memory of the details of this interaction, saying “I don’t remember specifically what words were said”. [38] When he recorded the interaction two and a half hours later, Cst.

Longmire did not record the exact words that were spoken by either party. I accept that Cst. Longmire purported to explain to Mr. Mucpa the latter’s right to counsel and police caution. But, as we shall see later, even experienced major crime investigators have difficulty explaining these concepts when relying on their memory. This factual record does not meet the standard of proof beyond a reasonable doubt. Consequently, I rule that the statements made by Mr. Mucpa to Cst. Longmire are not admissible as evidence. That said, I accept Cst. Longmire’s evidence that Mr.

Mucpa was responsive to him in their dealings, and that Cst. Longmire did not observe any signs that Mr. Mucpa was intoxicated. ii. Statements made to Cst. Longmire in booking on July 3 C.ii.1 Facts [ 59 ] Cst. Longmire turned on his recorder when they arrived in the detachment’s booking area, and we have a transcript of what was

said there. Cst. Longmire read Mr. Mucpa his rights from a Charter card. In the following extract, L refers to Cst. Longmire, and M refers to Mr. Mucpa. L. K. Tommy, so right now you’re being detained um for the … the murder of your aunt. M. Yeah. L. Do you understand that? M. Yeah. L. Can you tell me your full name? M. Tommy Joe Mucpa. L . Tommy Joe Mucpa? M. I’m sorry mom. L. K. Tommy, you have the right to retain and instruct a lawyer without delay. That it seems before we proceed with our investigation you can call any lawyer you wish or a lawyer from a free legal aid service immediately.

If you want to call a lawyer from a free legal aid service, we’ll provide you with a telephone to call a toll-free number for immediate legal advice. If you wish to contact any other lawyer a telephone … a telephone book will be provided to you. If you are charged with an offence, you may apply to legal aid for assistance. Do you understand that? M. Yeah. L. Do you wanna call a lawyer Tommy? M. No. Cause I know I did it. L. So you may be charged with murder. Do you wish to say anything? You’re not obliged to say anything unless you wish to do so but whatever you say may be given in evidence.

Do you understand that? M. Yeah. L. What’s that mean to you? M. Like I need to tell the whole truth and nothing but the truth. L. What that means is you actually don’t have to tell me anything. Okay? You understand that? M. Yeah. [39] C.ii.2 Defence Counsel [ 60 ] As I noted earlier, Defence Counsel asserts that the lack of a recording or contemporaneous notes by Cst. Longmire during his initial encounter with Mr. Mucpa has created a gap in the evidence which undermines a finding of voluntariness. Defence Counsel also notes that Cst.

Longmire reviewed the transcript of his testimony at the preliminary inquiry and alleges that he tailored his evidence on the voir dire . [ 61 ] Defence Counsel also finds fault with the way Cst. Longmire explained Mr. Mucpa’s rights to him, saying: Cst. Longmire’s explanation is neither complete nor accurate. He failed to explain to Mr. Mucpa that the caution also meant that anything he did say could be used against him as evidence in Court …From the very beginning Mr. Mucpa is misinformed and misled about his rights … Mr.

Mucpa is first advised he is being detained for murder, and then when the caution is put to him moments later he is told that he may be charged for murder … Cst. Longmire does not ensure Mr. Mucpa understands his right to counsel … [Mr. Mucpa] did not indicate an informed and clear waiver of his rights. [40] (emphasis in original) C.ii.3 Decision

[ 62 ] Cst. Longmire provided a lengthy and accurate explanation to Mr. Mucpa of his right to counsel. Mr. Mucpa said he understood. After Cst. Longmire asked Mr. Mucpa whether he wanted to speak to a lawyer, Mr. Mucpa answered immediately “No.” In my view this was an unequivocal waiver of his right to speak to a lawyer. This fact is not undermined because Mr. Mucpa chose to give an explanation why he did not want counsel. Mr. Mucpa stated, “Cause I know I did it”. Mr. Mucpa’s answer is entirely consistent with his intention to go to the detachment, report the crime, and to confess. I am satisfied Mr.

Mucpa made these statements voluntarily. [ 63 ] Nor am I troubled by Mr. Mucpa’s initial explanation of what anything you say, “may be given in evidence”. Mr. Mucpa said it meant, “Like I need to tell the whole truth but nothing but the truth”. This answer does not reflect what was asked of him, but it is noteworthy that Mr. Mucpa responded with words virtually identical to what a clerk reads to a witness in court. Cst. Longmire immediately corrected Mr. Mucpa using plain English. The words meant, “What that means is you actually don’t have to tell me anything. Okay? You understand that?” Mr.

Mucpa answered, “yeah”. [ 64 ] Furthermore, in practical terms, “being detained for murder” versus, “may be charged for murder” is a distinction without a material difference. [ 65 ] Mr. Mucpa spoke clearly and was lucid. The recording does not reveal any impairment by reason of alcohol or drug consumption. There is no evidence suggesting that Mr. Mucpa suffers from any cognitive deficit. There are no positive indicators that Mr. Mucpa did not understand what was explained to him. Cst. Longmire was entitled to accept Mr. Mucpa’s stated understanding at face value and to continue. [41] Cst.

Longmire neither misinformed nor misled Mr. Mucpa. Cst. Longmire did not breach Mr. Mucpa’s Charter rights. [ 66 ] I rule the statement transcribed in Tab 6 is admissible at Mr. Mucpa’s trial. iii. Statements made by Mr. Mucpa to Cst. Austring while in detachment cells on July 3 at 14:08 C.iii.1 Facts [ 67 ] When Cst. Austring arrived at the detachment, he proceeded directly to the cell area. Upon arrival there, he saw Cst. Longmire directing Mr. Mucpa to enter a cell and not to wash himself. Cst. Austring took a position at the cell window to ensure that Mr.

Mucpa did not start washing himself. [ 68 ] At some point, Cst. Austring turned on his recorder because Mr. Mucpa had started “telling me things”. [42] Cst. Austring had not spoken to Mr. Mucpa before the latter started speaking to him. He testified that Mr. Mucpa stated, “My victim, she is all naked”. [43] Mr. Mucpa then said his mother was going to kill him when she finds out and that he, Mr. Mucpa, hadn’t eaten in years. [44] In the transcript, Cst. Austring is recorded saying “… male in custody spontaneously uttering uh certain things about a possible murder that he might have committed.

He had just told me that uh quote my victim she is all naked”. [45] [ 69 ] Cst. Austring then placed a recorder on the cell’s window and told Mr. Mucpa that he was being recorded. [ 70 ] Among other things, Mr. Mucpa said: Everything’s my fault. Anyways, you know … my mom doesn’t know she [his aunt] was sleeping with him [his mother’s boyfriend]. I told him give me booze I won’t tell. Then he said he has a gun; he can shoot me. [46] …They think I’m a schizophrenic. I used to take pills, um injection when they came here I stopped them. So that’s why I am going crazy cause of depression.

I usually take them every month. I’m gonna take a rest. [47] C.iii.2 Defence Counsel

[ 71 ] Defence Counsel points to inconsistencies between Cst. Austring’s testimony and his Task Action Report and notes. Thus, she asserts, I cannot rely on his memory of what Mr. Mucpa may have said before he turned on the recorder. I should find that the Crown has not proven voluntariness. [ 72 ] As I understand Defence Counsel’s position respecting the Charter , Cst. Austring did not inform Mr. Mucpa of his rights or give him the police caution as Cst. Longmire had neglected to do before him. This failure violated Mr. Mucpa’s Charter right to counsel. I should exclude the statements.

C.iii.3 Decision [ 73 ] As I have already noted above, there are notable inconsistencies between Cst. Austring’s testimony in February 2020 and the recording of his interaction with Mr. Mucpa on July 3. I agree with Defence Counsel that this is a significant gap in the evidence. I cannot be sure what happened before Cst. Austring turned on the recorder. The Crown has failed to prove the voluntariness of Mr. Mucpa’s statements before Cst. Austring turned on the recorder, and I exclude them from evidence. [ 74 ] I do not have the same concerns about the statements Mr. Mucpa made after the recorder was turned on.

I have already ruled admissible the statements made by Mr. Mucpa to Cst. Longmire moments before. Nothing material had changed in Mr. Mucpa’s circumstances. I find that Mr. Mucpa spontaneously started talking to Cst. Austring, and there was no legal obligation on Cst. Austring to dissuade Mr. Mucpa from talking. I am satisfied Mr. Mucpa made those statements voluntarily after Cst. Austring turned on the recorder. I admit into evidence these parts of the statements contained in Exhibit 5 made by Mr. Mucpa to Cst. Austring. iv. Statements made to Cst. Longmire from 14:52 to 16:47 on July 3 C.iv.1 Facts [ 75 ] Cst.

Longmire entered the cell area while Cst. Austring was recording the statements I have just discussed. At 14:52 Cst. Longmire arrested Mr. Mucpa for murder. Cst. Longmire told Mr. Mucpa “So I just have a couple of things I need to read to you.” Cst. Longmire then told Mr. Mucpa that they would be audio and video recorded. The transcript of this exchange reads as follows: L. … So like I said, I’m Cst. Longmire. M. Hi L. … of the Royal Canadian Mounted Police in Pond Inlet. M. Welcome to Pond Inlet. L. So, Tommy, right now you’re under arrest for murder. Do you understand? M. Yeah. L.

You have the right to retain and instruct a lawyer in private without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and a lawyer can explain the legal aid plan to you. If you wish to contact the legal aid duty lawyer I can pri … provide you with a telephone number. Do you understand? M. Yeah. L. Do you want a lawyer? M. No. L.

So Tommy, you need not say anything, you have nothing to hope from any promise or favour and nothing to fear from any threat whether you … whether or not you say anything. Anything you say may be used as evidence. Do you understand? M. Yeah. L. So again, you may be audio and video recorded at any time while in police custody except while communicating with your legal counsel. Do you understand?

M. Yeah. [48] [ 76 ] Cst. Longmire then collected evidence from Mr. Mucpa including his shorts, photographs, and swabs from his hands and left forearm. He then put Mr. Mucpa back in his cell. [ 77 ] Later, Cst. Longmire had the following exchange with Mr. Mucpa: L. Just have a seat down there for me. So Tommy, I just wanna go over one thing with you. It’s nothing to do about what happened. I just wanna make sure that you understand that you can call a lawyer if you want. M. Yeah. L. Right? So this is pretty serious … M. (Inaudible) L. Some pretty serious allegations. Right?

With what you’ve told us and w … and what’s goin on so I just wanna make sure that you understand the seriousness of this and the fact that I … you have the right to call a lawyer. M. Okay. L. So do you wanna call a lawyer? M. No. L. No? Okay. Um, if I call the lawyer on the phone here and … handed it to you you can leave them a message to call back. Is that something you wanna do? M. What for? L. Well, they can … it’s your right … M. Hm L. … to talk to a lawyer. Right? You’ve been through the court process before. You know … M. Uh … L . … you know what the lawyers do. Right? M. Yeah. L.

So eventually you’re gonna need a lawyer so it’s just your right to talk to one right now. So do you want me to make a phone call and you can leave them a message? M. Sure. [49] [ 78 ] Cst. Longmire then called duty counsel and put Mr. Mucpa on the phone at 16:40. The call ended at 16:47. Duty counsel told Cst. Longmire that Mr. Mucpa told him that he was intoxicated, so they would have to finish the call later. Cst. Longmire advised duty counsel that he did not believe Mr. Mucpa was intoxicated. Cst.

Longmire told duty counsel they would call him back in a few hours. [50] C.iv.2 Defence Counsel [ 79 ] On voluntariness, Defence Counsel submitted that Mr. Mucpa’s arrest was strategic, allowing the police to collect evidence. Referring back to the statement in Tab 6, Defence Counsel asserted that Mr. Mucpa answering “yes” to the questions “do you understand” “is not an indication that Mr. Mucpa has necessarily understood the legal meaning of the words spoken to him”. [51] Cst. Longmire ought to have told Mr. Mucpa that by arresting him they would be able to collect evidence from him.

Defence Counsel concluded “there has yet to be an instance where his rights were communicated to him in a way that this Court can be sure that he fully understood his rights”. [52] [ 80 ] Concerning the right to counsel, Cst. Longmire “asked no questions to confirm whether Mr. Mucpa understood his rights”. [53]

Defence Counsel continued: … Cst. Longmire goes back to speak with Mr. Mucpa to explain the seriousness of the situation and give him a further opportunity to speak with counsel … When Cst. Longmire does go further and provides some explanations Mr. Mucpa initially refuses but then asks “What for?” This response is in-line with Mr. Mucpa’s initial thinking that he would not need a lawyer because “he did it”. Once Longmire explains further that Mr. Mucpa will need the services of counsel Mr. Mucpa readily agrees to speak to counsel. [54] [ 81 ] The evidence should lead me to conclude that “Cst.

Longmire simply did not do enough to ensure that Mr. Mucpa fully understood his rights or the consequences of waiving them”. [55] C.iv.3 Decision [ 82 ] Having watched the video recording and read the transcript, I am satisfied that Mr. Mucpa has a strong command of the English language. There are no positive indications suggesting that Mr. Mucpa had the slightest difficulty understanding Cst. Longmire. There was no legal duty which required Cst. Longmire to go further with his explanations than he did. Cst. Longmire followed his arrest script and conveyed the necessary information to Mr. Mucpa.

I am satisfied that Mr. Mucpa understood his rights and situation and that he made his statements voluntarily. [ 83 ] Mr. Mucpa was clear that he did not want to speak to a lawyer, but eventually he was coaxed into it by Cst. Longmire. Cst. Longmire called duty counsel and put Mr. Mucpa on the telephone. There is no evidence that Cst. Longmire “did not do enough” in all the circumstances. Cst. Longmire did not violate Mr. Mucpa’s Charter rights. [ 84 ] I rule the statement transcribed in Tab 7 as admissible in evidence at Mr. Mucpa’s trial. v. Mr. Mucpa takes the police to find Ms.

Erkloo’s body on July 3 C.v.1 Facts [ 85 ] Cst. Longmire spoke on the telephone with Cpl. Mike Burns from the Major Crime Unit at 17:48 on July 3. Cpl. Burns raised the possibility that Ms. Erkloo might still be alive which Cst. Longmire “hadn’t thought of up until that point”. [56] They decided that “the best course of action” would be to ask Mr. Mucpa to take them to her. [57] They did not discuss any other options. [ 86 ] At 17:59, Cst. Longmire approached Mr. Mucpa in his cell. The following exchange is recorded in the transcript: L. Tommy.

So I just … I just wanna remind you again that uh you may be charged with uh murder. Um (inaudible) say anything. You’re not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Basically, you don’t have to talk to me, um I’m sure when you talked to the lawyer he told you as much. M. Yes. L. Um but still given that um will you go with two of our members and show us where your aunt is? M. Sure. L. You’re willing to do that? M. Yeah. [58] [ 87 ] At 18:16 Cst. Woodman takes Mr. Mucpa out of his cell and after fitting Mr. Mucpa with clothes, the following exchange occurs: W.

So I’m just gonna read you the secondary caution there Tommy. Okay?

M. Mm. Okay. W. So you understand. Okay? M. Yeah. W. Regardless of anything that anybody has said to you or you have said to any other person in authority, you’re not obliged to say anything unless you wish to do so but whatever you say may be given e … evidence … given in evidence. Okay? M. Yeah. W. You understand? M. Hm. [59] [ 88 ] Mr. Mucpa then directed the police towards the area where he had left Ms. Erkloo. When they arrived in the area, Mr. Mucpa said, she “should be around here”. [60] At this point, Cst. Austring got out of the vehicle and walked in the direction indicated by Mr. Mucpa. Cst.

Woodman and Mr. Mucpa continue speaking: W. Was there a tent up here? M. Um towards over there. Yeah. Tell him it’s on this side. The left side. W. (inaudible) the left side at the top of the hill? M. It’s middle of the … holy … He never seen it. W. Not yet. No. M. He should see her right now. He passed it. W. Think so? M. He’s gone too far up … Oh man. He should see her right now. He passed it and he’s way too up. On the way up he should’ve seen the body. [61] [ 89 ] Cst. Austring found Ms. Erkloo and stayed with her body while Cst. Woodman returned Mr.

Mucpa to the detachment. [ 90 ] I note here that the Crown has admitted that the police should either have held off until Mr. Mucpa had completed his 10(b)-call, or else given him a “ Prosper warning”. [62] C.v.2 Defence Counsel [ 91 ] Defence Counsel pointed out that Cst. Longmire failed to tell Mr. Mucpa that he had a right not to participate in a process that could incriminate him. Cst. Longmire’s explanation that “you don’t have to talk to me” failed to explain “the legal implications of giving up the right to silence”. Furthermore, Cst.

Longmire’s reference to duty counsel—"I’m sure when you talked to the lawyer he told you as much”—undermined counsel. [63] [ 92 ] Defence Counsel noted that Cst. Woodman was not able to clarify what he said to Mr. Mucpa when he took the latter out of his cell. Neither Cst. Woodman nor Cst. Austring made any inquiries to ensure that Mr. Mucpa had spoken to duty counsel. Cst. Woodman testified that he had not dealt with Mr. Mucpa previously. Therefore, he was not able to assess either Mr. Mucpa’s level of understanding or his ability to make an informed decision to waive his right to silence. Like Cst.

Longmire, Cst. Woodman failed to explain to Mr. Mucpa that he was being asked to possibly self-incriminate and that he had the right not to participate. Defence Counsel also noted that Cst. Woodman did not give Mr. Mucpa the secondary caution until Mr. Mucpa was already seated in the back of the police vehicle. The police failed to give Mr. Mucpa a “true choice” to participate or not. Therefore, Defence Counsel asserts that Mr. Mucpa’s “participation [in finding Ms.

Erkloo] was not voluntary”. [64] [ 93 ] Respecting the impact of this acknowledged Charter breach in the section 24(2) analysis, Defence Counsel submitted:

… the notion that a violation of Mr. Mucpa’s rights is justified because of the concern to find Ms. Erkloo is not born-out on the evidence. This is because what is noticeably absent from the testimony of Cst. Woodman, Cst. Longmire, or Cst. Austring is any mention that there was a conscious and considered decision to breach the “hold-off” rule because of exigent circumstances. [65] [ 94 ] Furthermore, the police, by delaying the completion of Mr. Mucpa’s 10(

b) call for eight or nine hours, were not acting in good faith. The impact of the breach was a “serious” one. The police conscripted Mr. Mucpa “without being informed of what he was really being asked to do (in a legal sense)”. [66] In all the circumstances, I should rule the statements to be inadmissible. C.v.3 Decision [ 95 ] On voluntariness, I note that Cst. Longmire and Cst. Woodman each told Mr. Mucpa in clear words that he did not have to speak to them. Nevertheless, Mr. Mucpa immediately agreed that he would take them out to find Ms. Erkloo. When they arrived at the scene. Mr.

Mucpa could pinpoint exactly the spot on the tundra where he had left Ms. Erkloo, and he was noticeably frustrated that Cst. Woodman could not initially find her. This is compelling evidence that Mr. Mucpa understood his situation and that he had an operating mind. [ 96 ] Respecting the Charter , the Crown acknowledged that the police violated Mr. Mucpa’s right to counsel, so I proceed directly to the three-part section 24(2) Grant analysis. [ 97 ] First, I note that the Charter breach was serious. However, the evidence shows that this failure was not part of a pattern of illegal or problematic police conduct.

Cst. Longmire cautioned Mr. Mucpa again before asking him if he would be willing to help them find Ms. Erkloo. He told Mr. Mucpa that he did not have to speak with them. In response, Mr. Mucpa immediately replied “sure”. Then Mr. Mucpa confirmed his willingness to assist the police again immediately afterwards. Sixteen minutes later, Cst. Woodman tells him exactly the same thing again. To say that the police ought explicitly to have told him that he did not have to participate – instead of saying that he did not have to speak to them - is an insignificant semantic distinction. The police were clear Mr.

Mucpa did not have to speak to them, and that anything he said, which included taking them to Ms. Erkloo, could be used in evidence. [ 98 ] Furthermore, there is nothing in the evidence to suggest that Cst. Longmire said anything which would have undermined duty counsel in Mr. Mucpa’s eyes. [ 99 ] Second, I am satisfied that the Charter breach had a minimal impact on Mr. Mucpa’s Charter -protected interests. I do not agree with Defence Counsel that the police deprived Mr. Mucpa of the ability to make a “true choice” whether to assist the police. From the time he turned himself in to the police to confess, Mr.

Mucpa was a cooperative and willing source of information. Before leaving the detachment, as I have just noted, Cst. Woodman repeated again the caution to Mr. Mucpa. Given Mr. Mucpa’s willingness to assist the police, and his operating state of mind, I am satisfied that his answer to Cst. Woodman would have been the same had the question been asked before Mr. Mucpa was in the police vehicle. Stated differently, I am satisfied Mr. Mucpa would have shown the police where to find Ms. Erkloo even had he completed his 10(

b) call before the police asked him to go to the scene. [ 100 ] Third, I accept the evidence that the police acted in good faith. It is true that the police did not think to let Mr. Mucpa complete his 10(

b) call. However, Mr. Mucpa had already shown a number of times that he understood that he did not have to speak to the police, but that he was agreeable to help find Ms. Erkloo. [ 101 ] Once Cpl. Burns raised the possibility that Ms. Erkloo might still be alive, Cst. Longmire went to Mr. Mucpa’s cell to see if the latter would assist them. I am satisfied that an informed, objective, and reasonable member of the public would expect, nay demand, that the police do everything in their power to find and save Ms. Erkloo if possible.

The fact that the local RCMP constables did not twig onto this possibility earlier does not change my conclusion. In these circumstances, it would not bring the administration of justice into disrepute to admit the statements. Indeed, not to do so would subject the justice system to ridicule. I admit the statements contained in Tab 8 into evidence. vi. Mr. Mucpa gives a cautioned statement to Cpl. Jean-Sebastien Pigeon on July 4 from 09:45 to 11:29

C.vi.1 Facts [ 102 ] At 01:29 on 4 July, Cst. Longmire took Mr. Mucpa from his cell to the lawyer room where Mr. Mucpa completed his 10(b)-call. [ 103 ] Later at 09:45, Cpl. Jean Sebastien Pigeon took Mr. Mucpa out of his cell to conduct a cautioned interview. Cpl. Pigeon gave Mr. Mucpa the secondary caution as follows: P. And uh I just wanna make sure that you know that anyone um that you have spoken to before um or if they made any promise or threats to you uh to talk or to about anything, those are not valid. Okay? I’m not here to make any promise or threats. Okay?

That’s why we put those … camera and … and … and video. Okay? Just so you know that my goal today is just to talk to you. Okay? But if anybody made promise to you or made any threats to you, you shouldn’t feel obligated to talk to me today. Do you understand? M. Oh. P. That? M. Yeah. P. What … what does this mean to you? M. Huh? P. What … what does it mean to you … M. Wha P. What I just said? M. Snitch? P. No. No. No. It just means that you don’t have to talk to me. M. Oh yeah? P. Do you understand that? M. Yeah. [67] [ 104 ] Cpl. Pigeon then asked Mr. Mucpa if he was satisfied with his lawyer’s advice. Mr.

Mucpa replied “yeah”. [68] [ 105 ] I will now highlight the most relevant portions of their exchange. In an effort to draw out Mr. Mucpa, Cpl. Pigeon asked him if there was anything he wanted to talk about. Mr. Mucpa replied animatedly “If I wanted to talk I would say: ‘Can I see a cop please?’ I would say that”. [69] [ 106 ] Mr. Mucpa later stated that he wanted to see his mother “cause I’m thinking of goin life … Cause I’m thinking like they gonna put me to life sentencing. You know?” [70] because of what he did to Ms. Erkloo. [ 107 ] Mr. Mucpa then invoked his right to silence numerous.

References in parentheses are to page and line in the transcript: • “My lawyer told me not to say anything.” (15, 318) • “I don’t know. My lawyer told me not to talk so.” (20, 437) • “My lawyer he n … told me not to talk.” (29, 620) • “My lawyer told me not to talk. I thought you guys do investigations on that.” (34, 730) • “My lawyer told me not to talk so …” (37, 793) • “My lawyer … told me not to talk so.” (38, 829-831)

[ 108 ] The evidence satisfies me that Mr. Mucpa desperately wanted to talk to his mother before being removed from the community. The evidence also satisfies me that Cpl. Pigeon was adamant that he would not promise him a visit with his mother in order to get him to describe what happened. The following exchange provides one example of this situation. M. I wanna talk to my mom. P. I understand Tommy. I got her name and her address. M. Can you go get her? P.

Well, I can’t … I can’t say you … you gonna be able to see her right now but before uh there’s gonna be a … hearing and before you leave town I’ll let you see your mom. M. What the fuck man. P. What do you mean? Well, like I said Tommy I c … M. I’m not gonna talk until I … P. No. M. … see my mom. P. Okay. But I’m not here to make you promises. [71] [ 109 ] Mr. Mucpa became agitated and would no longer sit. Cpl. Pigeon decided Mr. Mucpa was not going to open up, so he took Mr. Mucpa out for a cigarette. Mr.

Mucpa of his own volition and without being asked then returned to the incident and immediately started explaining what had happened, including the following exchange: M. I was choking her. P. What? M. Choking her. P. In there? M. Choking her up there. P. You were choking her? M. Yeah. P. You understand I have the recorder. Okay? It still M. Yeah. P. … recording. M. I know. P. Okay. I just wanna make sure. M. I know you are. I saw you … you grabbed it. [72] [ 110 ] Mr. Mucpa continued, saying, I grabbed her from behind. I choked her. She was tryna come off.

Every time she tryna comes off I sh … sh … choking her more. She grabbing me in my face, trynna grab my leg to see if I can come off. I was doing hard. She was grabbing so hard. I was like “Whoa. Why am I doing this? Why? Why did I do it?” It’s hard life in this town. [73] [ 111 ] Mr. Mucpa then described what happened next:

I hit her on the head with a rock … All of a sudden she stopped moving. All of a sudden I hit her twice with the rock. I notice she’s still breathing. I choke her some more again… [74] C.vi.2 Defence Counsel [ 112 ] Defence Counsel stated the crux of her argument on voluntariness to be that, Cpl. Pigeon did not make a fresh start. He did not extinguish the tainting features that arose on July 3rd. He failed to properly caution Mr. Mucpa and failed to ensure that Mr. Mucpa understood – fully and completely his constitutional rights. The statement when viewed on its own in involuntary and inadmissible.

It is also inadmissible under the derived confessions rule. [75] [ 113 ] Defence Counsel also asserts that Cpl. Pigeon used the cigarette break as an inducement to get Mr. Mucpa to speak about the incident, thereby undermining voluntariness. [ 114 ] Respecting the Charter , Defence Counsel faults Cpl. Pigeon for failing to ensure that Mr. Mucpa had “a clear understanding of choice untainted by the events of July 3rd.” Furthermore, Cpl. Pigeon failed to give Mr. Mucpa the complete police caution thereby compromising “Mr.

Mucpa’s right to silence and right against self-incrimination”. [76] I should exclude the statement. C.vi.3 Decision [ 115 ] I have already ruled that the statements made by Mr. Mucpa on July 3 were not tainted by any police misconduct and are admissible in evidence. There was no duty for Cpl. Pigeon to caution Mr. Mucpa again, someone who had already been cautioned several times by the police in the preceding 24 hours, and who had completed his 10(

b) call before he dealt with Cpl. Pigeon. Mr. Mucpa clearly understood that he had the right to remain silent; he invoked his right no fewer than six times when dealing with Cpl. Pigeon. [ 116 ] Nor do I agree that Cpl. Pigeon gave an inducement to Mr. Mucpa by permitting him to have a cigarette. I accept Cpl. Pigeon’s testimony that he never intended to do so, and that intention is supported, as I have noted, by the evidence. Cpl. Pigeon engaged in no oppressive behaviour towards Mr. Mucpa, and there again is no evidence to support the assertion that Mr.

Mucpa did not understand his situation and his constitutional rights. I am satisfied that Mr. Mucpa gave his statement to Cpl. Pigeon freely and voluntarily. [ 117 ] Cpl. Pigeon gave an admittedly awkward secondary caution to Mr. Mucpa. However, in the process, Cpl. Pigeon did not muddy the waters to the extent that Mr. Mucpa became confused about his right to silence. Cpl. Pigeon did not violate Mr. Mucpa’s Charter rights. I rule the statement, found in Tab 10, to be admissible in evidence. vii. Mr. Mucpa gives a second cautioned statement to Cpl.

Jean-Sebastien Pigeon on July 4 from 12:48 to 13:03 C.vii.1 Facts [ 118 ] A little over an hour later, Cpl. Pigeon conducted a follow up interview. One third of the way into the exercise, Cpl. Pigeon told Mr. Mucpa that he had a few more questions. Mr. Mucpa replied “sure”. Cpl. Pigeon asked Mr. Mucpa why he took off Ms. Erkloo’s clothes. Mr. Mucpa replied, “I wanted to hide the evidence … and not come here”. [77] Mr. Mucpa thought about suicide, then he decided that “I should just put myself in. Probably from jail I can be killed. That was my plan”. [78] Mr.

Mucpa then denied having had sex with or having touched Ms. Erkloo. Cpl. Pigeon concluded the interview shortly afterward. He took Mr. Mucpa back to his cell and they shook hands. [79] C.vii.2 Defence Counsel

[ 119 ] Defence Counsel says that this second interview was a continuation of the first one and suffers from the same frailties. There is no evidence that Mr. Mucpa’s “choice to answer the questions put to him in this second interview was an informed choice”. [80] I should find that the Crown has not proven the statement to be voluntary and that Cpl. Pigeon violated Mr. Mucpa’s Charter rights. C.vii.3 Decision [ 120 ] I refer to my findings and decision respecting the first statement taken by Cpl. Pigeon. For the same reasons, I find that the Crown has proven beyond a reasonable doubt that Mr.

Mucpa gave the statement freely and voluntarily while not subject to any oppressive state conduct. I admit the statement, found in Tab 11, into evidence. viii. Mr. Mucpa makes statements during the visit by his mother in the presence of Cpl. Pigeon on July 4 C.viii.1 Facts [ 121 ] Cpl. Pigeon permitted Mr. Mucpa’s mother to visit him at the detachment later on July 4. First, Cpl. Pigeon gave Ms. Mucpa the following explanations. References are to page and line in the transcript. • “So like I said, ri … there’s a recorder and there’s a video.” (1, 14) • “Okay?

You guys are not in a private conversation.” (1, 18) • “Everything he says can be used in evidence. Okay?” (1, 20) • “So if … so whatever he tells you. If you ask any questions it can be used as evidence.” (2, 22) • “And … and don’t … you know, I know I don’t have to tell you that but don’t make any threats …” (2, 25-26) • “This is very voluntary.” (2, 32) [ 122 ] Cpl. Pigeon then repeats his caution to Mr. Mucpa. • “Okay? Like I explained earlier, this is not a private conversation.” (3, 47) • “Okay? So the video is on, I got my recorder and I’m gonna be in the room.

Okay?” (3, 49) • “Uh so everything you say to your mom while I’m there or while I’m not there, everything you say in this building can be used as evidence. Do you understand that?” (3, 51, 52, 54) [ 123 ] Mr. Mucpa answered “yeah”, he understood. Mr. Mucpa then confessed to his mother, saying, “I killed your sister … helping you out”. He killed Ms. Erkloo because she and Ms. Mucpa’s boyfriend were cheating on her. [81] C.viii.2 Defence Counsel [ 124 ] Stated briefly, Defence Counsel noted that Cpl. Pigeon did not make notes about a conversation he had with Ms. Mucpa before he started the recording.

This “gap in the record” ought to cause the Court concern. Cpl. Pigeon “did not make clear that any visit with his mother would not be associated with the police of the investigation”. [82] Cpl. Pigeon did not explain what “used as evidence” meant. Mr.

Mucpa was in an emotional state and desperate so he “would not be in a position to fully assess the consequences of his decision and make a meaningful choice”. [83] Furthermore, “the RCMP used the visit of Ida Mucpa as part of their evidence-gathering process … She’s clearly part of the RCMP, because the visit was coordinated and controlled by the RCMP throughout in every aspect of it”. [84] I should also reject the evidence that the meeting was recorded for safety reasons. Cpl. Pigeon’s efforts served only “to try to give it the gloss of a voluntary statement”. [85]

[ 125 ] Defence Counsel concluded The breach (sic) in this case was neither minor nor inadvertent. The seriousness of the RCMP misconduct and the impact of the breach (sic) on Mr. Mucpa’s rights point strongly to exclusion. Society’s interest in adjudication on the merits does not tip the balance in favour of admissibility. When all the circumstances of this case are considered it is necessary to exclude the statements and utterances that Mr. Mucpa made to vindicate the Charter

section 7 and

section 10 protections. [86] C.viii.3 Decision [ 126 ] I disagree fundamentally with Defence Counsel about the quality of the evidence and the inferences I may draw from that evidence. [ 127 ] I am not troubled by the lack of notes which might have recorded the first part of Ms. Mucpa’s interaction with Cpl. Pigeon. The only reasonable and rational finding I may make is that Cpl. Pigeon explained and emphasised clearly that Ms. Mucpa’s visit, and everything said during it could be used as evidence. There was no room for either Mr. Mucpa or his mother not to understand that fact.

I am satisfied that the Crown has proven beyond a reasonable doubt the voluntariness of the statements made by Mr. Mucpa to his mother in Cpl. Pigeon’s presence. [ 128 ] On the facts, I am not satisfied that the Defence has established on a balance of probabilities that Ms. Mucpa was an agent of the state; indeed, all the evidence points to the contrary. Nor has the Defence persuaded me that Cpl. Pigeon infringed Mr. Mucpa’s constitutional rights. Cpl. Pigeon had clearly reminded Mr. Mucpa before the visit that anything he said could be used against him, and he, Cpl.

Pigeon, was a spectator to the exchange between Mr. Mucpa and his mother. These facts do not support a finding of oppressive police behaviour or tactics. Nor do they support a finding that Mr. Mucpa’s will was overborne by the police. I rule the statements made by Mr. Mucpa to his mother and found in Tab 13 to be admissible in evidence. VII. CONCLUSION [ 129 ] I am satisfied that Mr. Mucpa clearly understood his situation and the consequences of his actions and words – both before he turned himself in, and while he was in police custody. I am satisfied the police explained to Mr.

Mucpa his right to counsel and his right to silence, and that Mr. Mucpa understood those rights. There is no evidence that Mr. Mucpa suffers from any cognitive deficit. Nor is there any evidence that Mr. Mucpa was under the influence of alcohol or drugs. The video evidence confirms that Mr. Mucpa was lucid and oriented to his situation and surroundings throughout his dealings with the police. In other words, Mr. Mucpa knew what he was doing and saying. Mr. Mucpa had an operating mind at all material times. [ 130 ] I am satisfied there is no evidence of any pattern of police misconduct.

With the exception of the two unrecorded interactions with Cst. Longmire and Cst. Austring for which there is insufficient evidence, I am satisfied beyond a reasonable doubt that Mr. Mucpa’s statements were given freely and voluntarily. [ 131 ] Although the police violated Mr. Mucpa’s right to counsel on July 3 when they enlisted his help to find Ms. Erkloo, I find that the police acted in good faith in exigent circumstances. Mr. Mucpa’s statements are admissible by virtue of Charter section 24(2) .

The Defence failed to prove their Charter challenge respecting the remaining statements. [ 132 ] With the exception of the two unrecorded statements made by Mr. Mucpa to Cst. Longmire and to Cst. Austring — which I rule to be inadmissible — I am satisfied beyond a reasonable doubt that Mr. Mucpa made the remaining statements voluntarily. I admit those remaining statements into evidence at Mr. Mucpa’s trial at the instance of the Crown. Dated at the City of Iqaluit this 12th day of March 2021

___________________ Justice P. Bychok Nunavut Court of Justice