HIS MAJESTY THE KING, – v. –, 2023 NBKB 167

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON His Majesty the King v. Sean Patrick Patterson and Henry Alexander Joseph Pottie 2023 NBKB 167 MCR/15/2021 BETWEEN: HIS MAJESTY THE KING, – and – SEAN PATRICK PATTERSON and HENRY ALEXANDER JOSEPH POTTIE DECISION Voir Dire # 2 – Voluntariness of Mr. Pottie’s Statements to Police BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATES OF HEARING: February 14 to 16, 2023 DATE OF DECISION: April 5 th , 2023 APPEARANCES: Maurice Blanchard & Guillaume Rigucci, for the Crown Jason Dempsey & Daniel Gallant, for Mr. Patterson

Vincent Dubuc, for Mr. Pottie DYSART, J. INTRODUCTION [1] Sean Patrick Patterson and Henry Alexander Joseph Pottie are charged with first degree murder in the death of James FrankLeard on or about May 25th, 2021 in Upper Cape, New Brunswick. [2] Their trial by judge and jury is scheduled to commence on April 17, 2023 in Moncton. [3] The Crown filed an application for the determination of whether certain statements given by Mr.

Pottie were voluntary, inaccordance with the confessions rule. [4] The Court rendered its decision on February 17, 2023 – that the statements were, in fact, voluntary – with reasons to follow. These are those reasons. [5] Mr. Pottie gave two statements to police in connection with this matter: 1. A non-custodial statement given to Cst. Dario LaFreniere on June 3, 2021 in connection with the apparent homicide of James “Jamie”Leard; and 2. A warned caution statement given to Sgt. Clay Wortman following his arrest for Mr.

Leard’s murder on June 5, 2021. [6] The Court will address each of these statements separately, but prior to looking at the circumstances of each statement, it ishelpful to consider the law relating to the confessions rule. THE LAW [7] As stated by the authors in The Law of Evidence in Canada, 5th Ed. (Sopinka, Lederman & Bryant), at pages 480-481: “Statements made against one’s interest are normally admitted because of their inherent reliability and trustworthiness. However, wherea confession is made by an accused to a person in authority, concerns about the reliability or trustworthiness may arise.

For that reason,the trial judge has the authority to exclude a confession where there is reasonable doubt as to its voluntariness.” [8] According to Justice Watt in his text, Watt’s Manual of Criminal Evidence, 2020 Edition, at page 686: “The confessions rule applies equally to inculpatory and exculpatory statements, as well as those allegedly volunteered to persons inauthority.” [9] The general principle – the so-called “confessions rule” – was refined by the Supreme Court in the decision of R. v. Oickle,2000 SCC 38 , where Justice Iacobucci laid out the modern approach to determining voluntariness.

Underlying that modernapproach, Justice Iacobucci wrote, are two competing but equally important interests: 33 In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without undulylimiting society’s need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v.

Precourt (1976), (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721: Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mindthat the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of havingcommitted the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminalinvestigation. . . . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and

calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible. . . . All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives. [ 10 ] At paragraph 47, Justice Iacobucci reminded courts that they must examine the entire context of the case, as no hard-and-fast rule will suffice. Also, the accused’s characteristics should be taken into account: R. v.

Wabason , 2018 ONCA 187 . [ 11 ] While the Court must consider the entirety of the context in order to determine whether the statement given by the accused is indeed voluntary and not the product of improper inducements or threats, the Supreme Court identified a non-exhaustive list of four specific, useful factors which the Court should consider. These are: i. The absence of a quid pro quo “inducement” in the nature of threats or promises; ii. The absence of “oppression”; iii. The presence of an “operating mind”; and iv. The absence of “police trickery” that would shock the conscience of the community.

The Absence of Quid Pro Quo [ 12 ] With respect to this first factor, the Supreme Court had this to say in Oickle , supra, at paragraph 57 : 57 In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in 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 early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done 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 done by 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 that they 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 the form of a threat or a promise. [ 13 ] In Watt’s Manual of Criminal Evidence , supra, the author states: “Moral or spiritual inducements will generally not produce an involuntary confession because the inducement offered is not within the control of persons in authority.” [ 14 ] That includes, generally, appeals to the accused’s conscience or sense of wrong and right.

Oppression [ 15 ] Justice Iacobucci had this to say respecting this second factor: Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances

could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusationsmade by the police, and gives an induced confession. [Oickle, supra, para. 57] [16] As stated by Sopinka et al., supra at page 499: Canadian courts may exclude statements where the conduct of the police officers or the circumstances of the detention raise doubts as towhether the accused was able to make an effective choice to speak to authorities or remain silent. The circumstances which can beconsidered oppressive are manifold and can arise in unique situations.

The Court in Oickle illustrated factors that may create anatmosphere of oppression: depriving the suspect of food, clothing, sleep or medical attention, denying an accused access to counsel andquestioning a suspect for a prolonged period in an excessively aggressive and intimidating manner. [17] The Court is concerned that police tactics have overcome the accused’s will in terms of remaining silent. The Presence of an Operating Mind [18] On the issue of an operating mind, Justice Iocobucci cited with approval the Supreme Court’s earlier decision in R. v.

Whittle, (SCC), where Justice Sopinka, writing for the Court, established the test for determining whether the accused had thenecessary “operating mind.” The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accusedhave sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand acaution that the evidence can be used against the accused. [19] The operating mind analysis can be impacted by the use of drugs or alcohol.

The Courts have considered the impact ofimpairment on the voluntariness of a statement given to police on numerous occasions. One such decision is R. v Pelletier, 2015 NBQB23 , a decision by Justice Lavigne prior to her elevation to the Court of Appeal. The Crown cites that decision in the presentApplication. In that case, the accused was charged with sexual offences.

She argued that her statement to police was not voluntary,because she was intoxicated at the time and had no memory of it. [20] Justice Lavigne went on to restate the test for an operating mind set out by the Supreme Court of Canada in Oickle, supra. Inconcluding that the statement was voluntary, notwithstanding the accused’s assertion that she was intoxicated at the time, JusticeLavigne wrote: [55] Being aware of the consequences in this context simply means being able to understand that her statement could be used asevidence in any proceedings against her. There is no evidence that Ms.

Pelletier did not understand the usual warning that was given bythe police to the effect that anything she said could be used against her. This warning was designed to ensure the knowledge of theconsequences of the statement, that is to say, its possible use in proceedings against the accused. Constable Spacek testified that Ms.Pelletier seemed to understand the warning. In fact, as is the custom, she was specifically asked whether she understood the warning, andshe answered yes. I accept this evidence. […] [67] Even if Ms.

Pelletier had consumed alcohol as she alleges, this did not prevent her from having an operating mind. Theevidence has satisfied me beyond a reasonable doubt that on July 13, 2013, the accused had an operating mind before, during and aftergiving the statement, in the sense that she had the requisite cognitive ability to know what she was saying and to understand that she maybe speaking to her detriment. She knew that her friend had already been charged in this matter, and she anticipated the visit of the policeofficers.

She wanted to give her version of the facts, and that is what she did. [21] Finally, as stated by Sopinka et al. in The Law of Evidence in Canada, supra, at page 508: “In order for intoxication to render thestatement involuntary, the accused’s intellectual ability must be very significantly diminished.”

Police Trickery [ 22 ] The final factor to be considered is police trickery, i.e. whether the trickery used was of a nature that it would shock the community. This is a separate and distinct inquiry from the others and does not depend upon a breach of the accused’s rights.

The objective is to maintain the integrity of the criminal justice system and to ensure that police do not engage in conduct which would “shock the community” ( Oickle , supra). [ 23 ] In Oickle , the Supreme Court identified some examples of police trickery that were deemed so inappropriate as to render the statement involuntary: • A police officer posing as a chaplain in order to elicit a confession; • A police officer posing as a lawyer; • Injecting an accused with truth serum under the pretence of giving him insulin to treat his diabetes. [ 24 ] As stated by Sopinka et al., supra, at page 510: “The high threshold required for exclusion is reflective of the [Supreme Court’s] general unwillingness to impede time-tested police investigation tactics where an accused is not deprived of his or her right to silence and correlative choice whether to speak.” [ 25 ] The Court will now consider the circumstances of each of the five statements given to police by Mr.

Pottie. NON-CUSTODIAL STATEMENT TO CST. LAFRENIERE ON JUNE 3, 2021 [ 26 ] The Court heard from two witnesses relating to this statement – Cst. Mario LaFreniere and Cst. Patrick Arseneault. Cst. Mario LaFreniere [ 27 ] Cst. LaFreniere, who has been with the RCMP since 2014, testified that he was tasked on June 1, 2021 by the Major Crimes Unit with obtaining a statement from Henry Pottie in relation to the disappearance of Jamie Leard. [ 28 ] On that same day, he testified that he attended at 269 Upper Cape Road in Upper Cape, New Brunswick in the hopes of finding Mr. Pottie, but there was nobody at home.

He then contacted Colt LeBlanc and left a message asking Mr. Pottie to call him. He eventually spoke to Mr. Pottie on June 2, 2021, but Mr. Pottie was working and was unavailable to meet. They eventually made plans to meet at a convenience store the next morning. [ 29 ] Cst. LeFreniere told Mr. Pottie it was in connection to the disappearance of Jamie Leard, but he testified that by June 3, 2021 the matter was being investigated as a homicide. [ 30 ] Cst. LaFreniere testified that he drove to meet Mr. Pottie with another officer, Cst. Patrick Arsenault. He and Cst.

Arsenault were both wearing plain clothes and they were driving an unmarked Ford Edge. He had his sidearm with him. While en route to meet Mr. Pottie, Cst. LaFreniere testified that he received a call from Mr. Pottie, who asked to change the meeting place to Mr. LeBlanc’s residence on Haute Aboujagane Road in Sackville. They arrived at the residence a little after 9:00AM. [ 31 ] Mr. Pottie exited the residence and got into the back seat of the police vehicle. Cst. LaFreniere was in the front passenger seat. He had an audio recorder which was turned on once Mr. Pottie entered the vehicle.

Their discussion was recorded, and the recording was entered as an exhibit and was played in the courtroom. The recording began at 9:13 AM on June 3, 2021.

[ 32 ] On the recording, Cst. LaFreniere can be heard to advise Mr. Pottie that Mr. Leard’s disappearance was now being treated as a homicide. He explained to Mr. Pottie that, as one of the last people to have seen Jamie Leard, he was considered a suspect. He advised Mr. Pottie that he did not have to speak to them, and that the statement was voluntary. However, he was told that if he did say anything, it could be used against him. Mr. Pottie was told that the vehicle doors were not locked, and that he could leave the vehicle at any time. [ 33 ] Cst. LaFreniere then asked Mr.

Pottie a number of questions, which Mr. Pottie answered. The statement lasted just over 31 minutes, ending at 9:44 AM. [ 34 ] Cst. LaFreniere testified that he did not make any threats nor any promises to Mr. Pottie, and none could be heard on the recording. He confirmed that he did not draw his weapon at any time. [ 35 ] At one point during the statement, Mr. Pottie could be heard to lower his window and speak to someone outside the vehicle. He asked Cst. LaFreniere whether he could go, as he had to get to work. Cst. LaFreniere answered that he just had a few more questions.

In fact, the questioning went on for several minutes. [ 36 ] On cross-examination, Cst. LaFreniere agreed that Mr. Pottie was first advised that the investigation was being treated as a homicide once he was already in the police vehicle. [ 37 ] With respect to Mr. Pottie's suggestion that he had to get to work, Cst. LaFreniere was asked whether he understood that to mean that Mr. Pottie was asking to leave. He answered no, that Mr. Pottie was advised at the outset of the statement that he was free to leave at any time, and he did not regard that comment as a request to leave.

Constable Patrick Arsenault [ 38 ] Cst. Arsenault was with the Major Crimes unit in Bathurst. He was called in to assist with the investigation of Mr. Leard’s disappearance and suspected homicide. [ 39 ] He testified that on June 3, 2021, he was tasked with assisting Cst. LaFreniere in obtaining a non-custodial statement from Henry Pottie. He testified that they were driving an unmarked police vehicle, a Ford Edge, and that both officers were wearing plain clothes.

He had his sidearm with him that day. [ 40 ] He testified that they made their way to a residence for what he understood had been a planned meeting to take a statement from Mr. Pottie. Cst. Arsenault testified that shortly after they arrived at the residence, Mr. Pottie exited the house and got into the back seat of the police vehicle. Cst. LaFreniere was in the front seat on the passenger side, and Cst. Arsenault was in the driver’s seat. The rear doors of the vehicle were not locked. [ 41 ] He testified that at the end of the statement, Mr. Pottie said he had to get to work.

There was somebody waiting for him, he believed. [ 42 ] Cst. Arsenault testified that there were no threats or promises made to Mr. Pottie, and nor was there any coercion. [ 43 ] On cross-examination, he acknowledged that when he and Cst. LaFreniere left Moncton that morning, they knew that the case was being treated as a homicide. [ 44 ] Cst. Arsenault testified that there were no signs that Mr. Pottie was impaired. [ 45 ] He acknowledged that at one point during the interview, Mr. Pottie said that he had to go to work asked if he could leave. Cst.

LaFreniere answered that he only had a couple of additional questions, but Cst. Arsenault acknowledged that there were more than just a couple of additional questions. It lasted several minutes. He also confirmed that Mr. Pottie was not reminded that the statement was

voluntary, and that he could leave at any time. [ 46 ] That was the evidence with respect to the non-custodial statement. ANALYSIS Quid Pro Quo [ 47 ] There is no evidence of any promises or threats made by police. Oppression [ 48 ] There is no evidence of any oppressive conduct by police. Mr. Pottie was advised that the statement was voluntary, and they he could leave at any time. Mr. Pottie was advised that the rear doors were unlocked. [ 49 ] There was no oppressive conduct by police. Operating Mind [ 50 ] Based upon the answers given by Mr. Pottie to the questions asked by Cst.

LaFreniere, there is no reason to doubt that Mr. Pottie had an operating mind. He understood what he was being asked, what he was saying and he understood that whatever he said could be against his self-interest. It was the morning and he was apparently heading to work, and there is no evidence of any impairment by drugs or alcohol. Police Trickery [ 51 ] There is no evidence of any police trickery. [ 52 ] Taking into consideration all the evidence and the circumstances surrounding the taking of the non-custodial statement on June 3, 2021, I am satisfied beyond a reasonable doubt that it was voluntary.

WARNED CAUTION STATEMENT GIVEN TO SGT. WORTMAN ON JUNE 5, 2021 [ 53 ] The court heard from three witnesses with respect to the warned caution statement: Cst. Pierre-Luc Labbé; Sgt. Mark Blakely and Sgt. Clay Wortman. Cst. Pierre-Luc Labbé [ 54 ] Cst. Labbé testified that he has been an RCMP officer for over 8 years. He was doing scene security with respect to the investigation into Mr.

Leard's homicide investigation when he was tasked by the MCU on June 5, 2021 to assist with the arrest of several persons. [ 55 ] He testified that he attended at a church on Route 940, which is the Upper Aboujagane Road, near Sackville. There, he was matched with Sgt. Blakely. He testified that his role was to arrest Henry Pottie for the murder of James Leard. He testified that he was familiar with Mr. Pottie previously. [ 56 ] Cst. Labbé testified that he was driving a marked police car, and he was wearing his police uniform, including vest.

He was also carrying his sidearm and tools on his belt, including handcuffs. [ 57 ] He testified that they received the call to attend at the residence at 2039 Upper Aboujagane Road, arriving at 11:45 AM. He

testified that as they pulled into the driveway, they drove towards the back of the residence, where the main entrance was located. He testified that Carrie Sears indicated that Henry Pottie was inside a trailer behind the residence. He described it as being similar to a snowmobile trailer. [ 58 ] Cst. Labbé testified that he made his way towards the trailer, and police knocked on the door. Mr. Pottie exited and was immediately arrested by Cst. Labbé. He described Mr. Pottie as cooperative. He escorted Mr. Pottie to the police vehicle, where he searched Mr. Pottie and then placed him in the rear of the vehicle.

He testified that at that stage, Sgt. Blakely took over, reading Mr. Pottie his rights. Cst. Labbé testified that his sole role was to arrest Mr. Pottie and then drive him to the Sackville detachment. [ 59 ] He testified they left the residence at 11:55 AM and arrived at the Sackville detachment at 12:06 PM. Sgt. Blakely then removed Mr. Pottie from the police vehicle, and Cst. Labbé subsequently returned to continue his scene security work in Upper Cape. [ 60 ] Cst. Labbé testified that he did not make any threats or promises to Mr. Pottie, nor did he coerce him in any way.

He did not draw his weapon, and he did not make any use of his tools, other than his handcuffs. [ 61 ] On cross-examination, it was suggested that another officer, Cst. Carl Champagne, had testified in an earlier hearing that he was the officer who arrested Mr. Pottie. Cst. Labbé testified that there were several officers present on the scene, with several of them going to the back of the residence in the area of the trailer. He could not say whether someone else had placed Mr. Pottie under arrest before him, but he was certain that he had placed Mr. Pottie in handcuffs and notified him that he was under arrest.

Sgt. Mark Blakely [ 62 ] Sgt. Blakely testified that he has been an RCMP officer since 2006. [ 63 ] In June 2021, he was tasked by the command triangle to be part of the arrest team for Henry Pottie. He was asked to assist Sgt. Clay Wortman with the interview as well. [ 64 ] He testified that they had planned the arrest on June the 5th, 2021. His role was to proceed to a residence along with Cst. Labbé and to arrest Henry Pottie, and then ensure that his Charter rights were explained and were implemented.

He testified that he was wearing plain clothes with a bulletproof vest clearly marked “police.” He also had his sidearm with him. [ 65 ] He recalled that Mr. Pottie was found in a trailer behind the residence and was placed under arrest. He testified that Cst. Labbé brought Mr. Pottie to their police vehicle and searched him before placing him in the rear of the vehicle. He recalled that Mr. Pottie had said that he felt sick, as if he had an upset stomach, and requested that the windows be put down so he could get some air. [ 66 ] Sgt.

Blakely testified that he turned on his audio recorder, and then proceeded to read Mr. Pottie his rights from a prepared script which had been provided by the command triangle. He advised Mr. Pottie that he was being arrested for the murder of James Leard, and Mr. Pottie indicated he understood. Sgt. Blakely also advised him that he had the right to retain and instruct legal counsel, and again Mr. Pottie indicated that he understood. Finally, he advised him that he had nothing to fear or hope for and did not need to say anything to police. Mr. Pottie indicated he understood. [ 67 ] Mr.

Pottie indicated his preference to speak to a lawyer provided through legal aid. As a result, he was taken to the Sackville detachment. Sgt. Blakely then contacted legal aid, and Mr. Pottie was placed in the interview room for the call. Afterwards, Mr. Pottie indicated that he was satisfied with the call. [ 68 ] After the call from legal aid, Sgt. Blakely took Mr. Pottie outside for a cigarette and asked him if he was hungry. He got some takeout from McDonald's for him for lunch, and then, after a second cigarette, Mr. Pottie was returned to the interview room at 2:55 PM, and was introduced to Sgt.

Wortman. [ 69 ] Once Sergeant Wortman started his interview of Mr. Pottie, Sgt. Blakely monitored the statement, and consulted from time to time with Sgt. Wortman. He also went inside the interview room and had some contact with Mr. Pottie as well.

[ 70 ] Sgt. Blakely testified that he did not make any threats or any promises to Mr. Pottie, nor did he offer any inducements. [ 71 ] On cross-examination, Sgt. Blakely testified that there were at least three officers who made their way towards the trailer at the back of the residence on the Haute Aboujagane Road when Mr. Pottie was arrested. He recalls that Cst. Labbé eventually took control of Mr. Pottie and placed him in handcuffs. Sgt. Blakely testified that he does not know Cst. Carl Champagne. [ 72 ] Sgt. Blakely testified that he saw no signs of intoxication, though he acknowledged Mr.

Pottie expressed feeling unwell, and feeling like he might throw up. He also agreed that Mr. Pottie was sweating at the time of the arrest. [ 73 ] Sgt. Blakely also testified that there was a period where the audio recording was turned off. He testified that Mr. Pottie was being held in a cell at that time, and that paramedics were treating another detainee in the cells area of the detachment. As a result, there is no recording for that portion of time. Sgt. Clay Wortman [ 74 ] Sgt. Wortman has been a member of the RCMP since 2004.

He has been working in Amherst, Nova Scotia for some time. [ 75 ] He was tasked with interviewing Henry Pottie following his arrest on June 5, 2021. His first contact with Mr. Pottie was in the cellblock at the Sackville detachment shortly after 2:00 PM on June 5. [ 76 ] Sgt. Wortman testified that he asked Mr. Pottie if he needed anything, for example cigarette, water. He and Sgt. Blakely then took Mr. Pottie outside for a cigarette, and then the interview commenced. The entire interview was recorded, either as audio/video, or by audio backup.

Those were entered into evidence and were played in the courtroom. [ 77 ] On the recording, Mr. Pottie confirmed that he had spoken with a lawyer through legal aid. As well, Sgt. Wortman reminded Mr. Pottie of his rights, including his right to remain silent. Mr. Pottie indicated that he understood that right. [ 78 ] Initially, when the interview started, Mr. Pottie can be seen to be yawning excessively. However, within a few minutes, the yawning ended, and there is no indication that Mr. Pottie was falling asleep.

He expressed that he had not gotten much sleep lately, but at no time did he indicate that he was too tired to proceed with the interview. He also described having been physically attacked recently and suffering some injuries. Approximately two hours into the interview, Sgt. Wortman left Mr. Pottie alone for a few minutes in the interview room. He put his head down and shuddered somewhat as if he were cold. He was wearing a T-shirt during the interview, as was Sgt. Wortman. [ 79 ] At around that time, they took a cigarette break and then Mr. Pottie was placed in the cells for about 30 minutes.

When they returned to the interview room, Mr. Pottie could be seen to shiver, as if he were cold. He also began to yawn excessively once again, which lasted a few minutes before stopping. After a few minutes in the interview room, he no longer looked as if you were cold, or at least there were no signs that he was shivering or crossing his arms in an effort to stay warm. [ 80 ] A little more than three hours into the interview, which would have been at approximately 5:30 PM, they took a health break for Mr. Pottie to use the bathroom, which was in the cells.

Upon returning, he expressed feeling cold, and there was a discussion about the fact that the cells were cold, as opposed to the interview room. He also advised Sgt. Wortman that he was tired, but again he did not suggest that he was too tired to proceed with the interview. [ 81 ] Shortly after that, Mr. Pottie was presented with an audio recording of a statement given by a witness, Amanda Noiles. Mr. Pottie asked Sgt. Wortman if they could go off the record, as he needed some advice. Sgt. Wortman said that the only advice he could give him was to be truthful. Of course, they did not go off the record.

[ 82 ] Approximately four hours into the interview, they took another smoke break, and Sgt. Wortman offered Mr. Pottie some food, but he refused. He was still feeling unwell and did not want anything to eat. [ 83 ] At approximately 7:00 PM, the police placed Mr. Pottie in the cells for about 90 minutes. They resumed the interview at approximately 8:30 PM. Based upon the recording, it would seem that Mr. Pottie was sleeping in his cell during that time, and they gave him several minutes to wake up before returning to the interview room. When they did, Mr. Pottie again expressed feeling cold.

It was again suggested that the cells were cold, and he wanted to bring his blanket. Sgt. Wortman indicated to Mr. Pottie that if he was still cold in the interview room, they get the blanket from the cell. It was not mentioned again. [ 84 ] Again, at the beginning of this portion of the interview Mr. Pottie was yawning excessively, but that stopped within a few minutes of the resumption of questioning. [ 85 ] Mr. Pottie was questioned until 10:33 PM, at which time the interview was ended, and he was placed in the cells for the night. [ 86 ] Sgt. Wortman testified that he saw no signs of any impairment in Mr.

Pottie. He testified that he did not make any threats or any promises to Mr. Pottie, nor did he offer any inducements. Further, he did not make use of any weapon during the interview. [ 87 ] On cross-examination, Sgt. Wortman acknowledged that he spoke with Sgt. Blakely on a few occasions during the breaks. He also acknowledged that there were a couple of periods when Mr. Pottie was left in the cells, which were not recorded. There is no suggestion, however, that there was any contact between any other member of the police and Mr. Pottie during those times. There was a jail guard present at all times. [ 88 ] Sgt.

Wortman confirmed that Mr. Pottie said that he was tired at least once and was yawning excessively at various times during the interview. However, he testified that there was no indication that Mr. Pottie was falling asleep during the interview, and he always remained engaged and communicative. [ 89 ] The evidence would indicate that during the approximately 8½ hours from when the interview started until it ended, Mr. Pottie was placed in the cells for approximately two hours. He also was given several cigarette and bathroom breaks. ANALYSIS [ 90 ] It should be noted that counsel for Mr.

Pottie does not object to the Crown's Application on voluntariness. Rather, counsel correctly points out that it is the Crown's burden to prove voluntariness beyond a reasonable doubt. Quid pro quo [ 91 ] There is no evidence to suggest that any promises, threats or inducements of any kind were made by police in this case. Oppression [ 92 ] While it seemed that Mr. Pottie was at various times sleepy and cold, there is no evidence to suggest this was oppressive.

He seemed to get cold or chilled every time he moved from the cells to the interview room, but his behaviour suggested that he was fine within a few minutes. He only expressed feeling cold upon entering the interview room, and there is no reason to believe that his will to remain silent was in any way affected by the fact he was cold at some points in the interview. [ 93 ] Likewise, while he seemed sleepy at times, there is no evidence that Mr. Pottie was deprived of sleep or that it overcame his will.

He was, in fact, placed in the cells for approximately two hours and the evidence suggests he was able to sleep at those times. [ 94 ] Also, he was given a number of cigarette breaks and opportunities to use the bathroom. He was fed, and he was offered

something to drink. [ 95 ] There was no oppression. Operating Mind [ 96 ] The Court has no doubt that Mr. Pottie possessed an operating mind on June 5, 2021. He answered questions and gave detailed explanations relating to persons, places, dates and things. He certainly seemed to get some of his dates confused, but he understood what was being asked and what he was saying. And I am satisfied that he understood that what he told police could be used against him. [ 97 ] He had an operating mind.

Police Trickery [ 98 ] There is no evidence of police trickery in this case. [ 99 ] For those reasons, I am satisfied beyond a reasonable doubt that the warned caution statement of June 5, 2021, given by Henry Alexander Joseph Pottie was voluntary. DISPOSITION [ 100 ] The two statements given by Mr. Pottie were voluntary. DATED at Moncton, New Brunswick this 5 th day of April, 2023. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick