R v. Kinak, 2011 NUCJ 25

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. Kinak, 2011 NUCJ 25 Date: 20110919 Docket: 14-08-41-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Sam Kinak ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): M. Bryant Counsel (Accused): T. Boyd Location Heard: Iqaluit, Nunavut Date Heard: May 04-06, 2011 Matters: Ruling on voir dire (Reasons for judgment for a ruling delivered November 23, 2010, regarding the admissibility of statements made by the Accused) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The accused, Mr. Kinak, is charged with manslaughter, in relation to the death of his spouse (Lisa), on September 22, 2008, at Arviat, Nunavut. [ 2 ] The Crown applied to have two (2) statements, made by Mr. Kinak to police, admitted into evidence at his upcoming trial. On November 23, 2010, I ruled that the statements were admissible. [ 3 ] The following are the reasons for this ruling. II.

OVERVIEW [ 4 ] On September 22, 2008, at 1:26 am, Corporal Donna McMurrer of the RCMP, Arviat's detachment commander, received a phone call from an unknown male; this person said "hello" - and then just hung up. But he called right back - and said, simply, "I can't wake her up, I think I killed her." [ 5 ] The Corporal soon determined that the caller was Mr. Kinak, that he was calling from home about his spouse, Lisa Malla, and that Mr. Kinak and Lisa had been drinking. [ 6 ] Mr. Kinak kept repeating that he couldn't wake Lisa up. The Corporal told Mr. Kinak that police were on their way, and then went to Mr.

Kinak's house, along with her colleague, Cst. George Henrie. [ 7 ] When the officers arrived, they found Lisa, dead. [ 8 ] Mr. Kinak was desperate. His spouse was obviously deceased, but he kept imploring the officers to "help Lisa." Cpl. McMurrer assured Mr. Kinak that medical help was on the way. Mr. Kinak was taken into custody. [ 9 ] Shortly before being lodged in cells, Cst. Henrie told Mr. Kinak that he was under arrest for murder, advised him of his Charter rights, and gave a standard police caution. Mr. Kinak told the Constable that he understood all this. [ 10 ] Mr.

Kinak stayed in police custody, at Arviat, until September 25, when he was transported to Iqaluit, for his first court appearance. Originally, he was to be transported on September 24, but there were some weather problems. [ 11 ] While Mr. Kinak was in police custody at Arviat, he was interviewed by police. But not by the Arviat detachment members. Instead, local police called upon the Major Crimes Unit (MCU), from Iqaluit, to take over the file; this is standard practice in homicide cases. So, none of the Arviat officers questioned Mr.

Kinak about the offence - either before, or after, the MCU team flew in from Iqaluit.

[ 12 ] Corporal McMurrer, and Constable Henrie, did, however - upon instructions from Iqaluit - wake Mr. Kinak up, twice. The first time, a couple of hours after his arrest, at 4:07 am, to take some fingernail scrapings, and again, just before 6:00 am, to seize his clothes, which were exchanged for a prisoner's jump suit. [ 13 ] Five

(5) MCU team members arrived in Arviat, at about 2 pm, on September 22. Constable James Skeoch, was assigned to interview Mr. Kinak, while the other members of the team gathered forensic evidence, and searched for possible witnesses. These other members also took audio and video footage of Constable Skeoch's interviews, but did not, themselves, take

part in any questioning. [ 14 ] Constable Skeoch had three (3) meetings with Mr. Kinak which are of a concern to the court. He met Mr. Kinak, initially, shortly after arriving in town, simply to introduce himself. And, then twice, to interview him about events on the night that Lisa died. It was during these two (2) interviews that Mr. Kinak provided information to the Constable about the offence. [ 15 ] There were also some incidental meetings and short discussions between the Constable and Mr. Kinak, which are not important. [ 16 ] The first meeting, between Constable Skeoch and Mr.

Kinak, took place at 3:30 pm on the 22 of September, in the Arviat detachment's combination coffee and interview room. Cst. Skeoch wanted to meet Mr. Kinak, and find out a little bit about him. He also told Mr. Kinak that, later on in the day, he (the Constable) would be questioning him about what had happened with Lisa. [ 17 ] During this meeting, the Constable was also careful to explore some preliminary legal matters that must precede any questioning of a suspect. The Constable confirmed, with Mr.

Kinak - in clear and plain language - why he was being held, his right to silence, and, the fact that anything he did say, could be used, against him, later, in Court. [ 18 ] In addition, Constable Skeoch wanted to ensure - before he conducted any interviews - that Mr. Kinak had an opportunity to contact a lawyer. So, at 4:00 pm, the Constable, with Corporal McMurrer's help, set up a phone call between Mr. Kinak and counsel. Mr.

Kinak spoke with his lawyer for about 20 minutes, after which he was given a sandwich, a smoke, and a change of clothes, before being returned to cells. [ 19 ] The first of Constable Skeoch's two (2) interviews with Mr. Kinak concerning the offence, took place later that same evening, on September 22, at around 8:00 pm. This session lasted approximately forty (40) minutes. [ 20 ] The next, or second interview, took place a couple of days later, on September 24, in the late afternoon, at Mr. Kinak's request.

This was a very short interview, which lasted about ten (10) minutes. [ 21 ] Each of these two (2) interviews was recorded in audio/video. On each occasion, Mr. Kinak spoke with Constable Skeoch, about what had happened, with Lisa - or, more precisely, Mr. Kinak told the Constable what he said he could actually remember. [ 22 ] The Crown conducted a very thorough voire dire in order to establish that Mr. Kinak's statements were made voluntarily, and should therefore be admitted into evidence at his trial. [ 23 ] The Crown presented testimony from the two (2) civilian guards in charge of Mr.

Kinak while he was in cells. Their job was to watch Mr. Kinak in cells, attend to his minor personal needs, and to record his activity, or lack of it, at approximately 15 minute intervals; their written observation/activity logs were presented as evidence. [ 24 ] In addition, the Crown presented Constable Skeoch, together with the detachment commander, Corporal McMurrer, and her colleague, Constable Henrie, as witnesses.

[ 25 ] The Court was also provided with audio and/or video recordings of all relevant contact between police and Mr. Kinak. [ 26 ] There was no defence evidence presented at the voire dire. [ 27 ] Counsel for Mr. Kinak facilitated the conduct of the voire dire, by acknowledging that the statements made by Mr. Kinak during the second interview, on September 24, were made voluntarily.

In turn, I have, accordingly, ruled that any statements made during this interview, are admissible. [ 28 ] Defence counsel also made it clear that there were no Charter issues respecting the admissibility, at trial, of either interview. [ 29 ] The only issue left for the Court to decide, therefore, is the admissibility, at common law, of statements made by Mr. Kinak to Constable Skeoch, on the evening of September 22, at around 8:00 pm.

And, incidentally, the admissibility of anything that he said, earlier, in the afternoon, when he first met the Constable, at 3:30 pm. [ 30 ] Crown and defence counsel are in agreement, however, that it is the 8:00 pm interview, which is at the heart of this voire dire. And, counsel for the defence has raised a number of concerns, respecting the admissibility this interview. [ 31 ] Counsel reminds the Court, that it is incumbent upon the Crown to prove that his client's statements comply with the modern day Confession rule.

The question of whether these statements were made voluntarily lies at the heart of this determination. [ 32 ] For, as counsel says, a voluntary statement is more likely something which a Court can rely upon as true - thus reducing the chance of wrongfully finding an innocent person guilty. [ 33 ] Within this context, counsel raises three (3) concerns. [ 34 ] First, the Court is asked to consider whether, at the time of the interview, Mr. Kinak's mind was operating sufficiently, as is required by the confessions rule.

And further, since Constable Skeoch conducted the interview in English, counsel asks the Court to consider whether Mr. Kinak was sufficiently competent, linguistically. [ 35 ] Second, it is suggested that the interview may have been conducted, under circumstances, or conditions, of the kind that, under the confessions rule, could be considered "oppressive." [ 36 ] In this regard, counsel argues that cumulatively, the circumstances under which Mr. Kinak was interviewed could be considered oppressive. [ 37 ] For example, the defence suggests that Mr. Kinak may have been deprived of sleep before being interviewed.

Further, counsel says that there is cause for 'suspicion' that not all the interviews were recorded - that there may have been discussions between Mr. Kinak and police which were not put before the Court, because they may not have been 'caught on tape.' [ 38 ] Third, but still within this context of 'oppressive circumstances,' counsel says that the court should consider whether an improper inducement may have been made, by Constable Skeoch, to Mr. Kinak, in order to get him to talk. [ 39 ] In admitting this September 22 interview into evidence, I have determined that Mr.

Kinak did have an operating mind at the time, and was quite competent in speaking English. I have also determined that there were no oppressive circumstances, nor any improper

inducement, capable of raising a reasonable doubt, about the voluntariness of what Mr. Kinak said to the Constable, at any time, on September 22, 2008. III. ANALYSIS A. The ‘operating mind’ and Mr.

Kinak's ability to speak English [ 40 ] The 'operating mind' doctrine requires: first, that a suspect being questioned by police knows what they are talking about; and, second, that they know, whatever they say, can be used to their detriment. [ 41 ] Obviously, as well, the person's facility for speaking the language of the interrogator, might, in an individual case, be relevant. [ 42 ] When Corporal McMurrer and Constable Henrie first attended at the scene, at roughly 2:00 am, they found the victim Lisa, without a pulse, and with the onset of rigor mortis. Yet, as defence counsel notes, Mr.

Kinak - despite the fact Lisa was obviously dead - was asking the police to help her, to save her. [ 43 ] The defence suggestion is that these requests for help, are so odd, or bizarre, that they should cast doubt on whether Mr. Kinak had a fully operating mind at the time police first arrived at the house and further, by implication, when Mr. Kinak spoke with Constable Skeoch. [ 44 ] Upon careful examination, however, it becomes clear that Mr.

Kinak's behaviour, at the scene, is not, under the circumstances, particularly unusual. [ 45 ] Corporal McMurrer tesfified that she got a phone call at 1:26 am from a male - later identified as Mr. Kinak - who said, 'hello,' and then hung up. Then he called back and said, "I can't wake her up, I think I killed her." [ 46 ] The Corporal testified that she detected panic in Mr. Kinak's voice, on the phone, and that he sounded urgent, and kept repeating "I can't wake her up." [ 47 ] When police arrived, and announced themselves, Mr.

Kinak said "I'm in here." They found him sitting on a bed, smoking, "and kind of staring straight ahead." {McMurrer, Voire Dire Transcript: p. 70, l, 1-2; Cpl} [ 48 ] It is clear that Mr. Kinak was well aware of the seriousness of what he faced, in the morning, when he found his spouse, Lisa, laying on the floor. [ 49 ] But Mr. Kinak is not a person with medical training. And, further, unlike most police officers, he is not someone who encounters recently deceased victims, as part of his job. [ 50 ] Mr. Kinak was upset, to be sure.

However, although he feared the worst, he was able to gather his wits together and call for help, just in case there was something that could be done. [ 51 ] The police continued to nurture this hope, when they arrived on the scene. They found Lisa, on the floor, cold and without pulse - obviously dead.

[ 52 ] The Corporal was, however, of the view that arresting Mr. Kinak might be problematic. So, she told Mr. Kinak that medical help was on the way, while at the same time signally to Constable Henrie, that Mr. Kinak should be handcuffed. [ 53 ] Thus, under the circumstances, it was not particularly remarkable, or odd, that Mr. Kinak implored police, even as he was escorted out of the house, to "help Lisa." [ 54 ] Both officers were of the opinion that Mr. Kinak was not intoxicated when they arrived the house. [ 55 ] In addition, Constable Henrie was of the view that Mr.

Kinak did not appear "out of it," or "confused," when police met him at the house. Both officers testified that Mr. Kinak was co-operative, albeit 'quiet and not saying much.' They had no problem, however, communicating with Mr. Kinak - and he had no problem answering their questions. {Tr: Cpl. McMurrer, pp. 80, l, 6-21; 89, 5-12; 91, 18-23, and Cst. Henrie, pp. 111, 1-6; 113, 14 - p.114, 18} [ 56 ] Counsel for Mr. Kinak, however, points out that his client was at a serious disadvantage, in talking with police in English, since English is not his first language.

Counsel notes that the guards, tasked with watching Mr. Kinak in cells, spoke Inuktitut with him, and not English. [ 57 ] These two guards, Martha Komak, and Emilia Alareak, had minimal dealings with Mr. Kinak while he was in cells. And, as they gave their evidence, it became obvious that they were much more comfortable speaking Inuktitut, than English. [ 58 ] The fact, therefore, that the guards had spoken with Mr. Kinak in Inutktitut is not remarkable and says more about them, than it does about Mr. Kinak's facility for speaking English. [ 59 ] Corporal McMurrer and Constable Henrie both knew Mr.

Kinak, from previous encounters and they testified that they had no difficulty communicating with him in English. [ 60 ] In particular, Constable Henrie is Inuk, and bilingual. He speaks both Inuktitut and English. The Constable had spoken to Mr. Kinak, on past occasions, in both languages - socially, in Inuktitut, and on police business, in English. [ 61 ] It was Constable Henrie who first advised Mr. Kinak - in English - of his rights, and cautioned him upon arrest. The Constable testified that Mr. Kinak responded, in English, saying that he understood these rights, and the caution.

The Constable testified that the accused, "spoke very good English, when I spoke to him." {Tr: 105, l, 18} [ 62 ] Constable Skeoch testified that he had no trouble understanding or communicating with Mr. Kinak, in English. {Tr: 133, l, 13-17} [ 63 ] Finally, Mr. Kinak's facility for English is evident in the audio and video recordings of the interviews: for example he tells Constable Skeoch, in English, about his interest in sports, his travels to Iqaluit, and his work. In particular, with respect to work, Mr.

Kinak told the Constable how he has been in the construction trade since 1993, and rose to the position of foreman within the last few years. { Ex "C";Tab 2, pp. 5,6} [ 64 ] It is clear that Mr. Kinak had no linguistic difficulty, in communicating with police - either the Arviat detachment members, or Constable Skeoch. [ 65 ] It is also clear that Mr. Kinak understood the initial police cautions given to him, when he was taken into cutody by Constable Henrie. Later in the day, Constable Skeoch was careful, by employing plain language, to ensure that Mr.

Kinak was aware of his right not to say anything, and, aware, as well, that anything he did say was being recorded, and could be used in court, against him.

[JS: James Skeoch], "If, anything you say to me, I can tell a Judge in Court. Do you understand what I am saying? [SK: Sam Kinak] "Yes."; {Ex "C"; Tab, 2, p. 2, in particular l, 23-24} {Tab 3, p. 3; throughout} before starting the 8 pm interview, the constable asks Mr. Kinak what he understands about his rights, and Mr. Kinak, himself, articulates that he has the right to remain silent; the constable then makes sure that Mr. Kinak is aware that interview is being recorded; when the constable repeats this fact, a second time, Mr. Kinak says "Okay" [ 66 ] Constable Skeoch's evidence was that Mr.

Kinak was 'responsive and engaged,' during their conversations, albeit that 'he had a lot on his mind.' {Tr: 128, l, 19-24} [ 67 ] The video of the 8:00 pm interview confirms the Constable's testimony. It shows that Mr. Kinak is aware of what he is talking about. [ 68 ] We can see, on the video, the Constable and Mr. Kinak 'engaged' in an unremarkable sequence of questions and answers, as Mr. Kinak tries to recollect the events of the previous evening. {Ex "C"; Tab 3; Ex "E," video: 8:00 pm, September 22nd} [ 69 ] Among other things, Mr.

Kinak remembers telling Corporal McMurrer, earlier in the morning, when he called, that Lisa was not responding, and that "I think I killed her." {Ex. "C"; Tab 3, p. 9, l,13} [ 70 ] In my view, Mr. Kinak was possessed of a sufficient operating mind during his interviews with Constable Skeoch. Mr. Kinak knew what he was talking about, and he knew that whatever he said could be used to his detriment. B. The issue of 'improper' inducement [ 71 ] As noted by the Crown Attorney, Constable Skeoch's 8 pm interview, on September 22, was a fairly short session.

It lasted only about 40 minutes. [ 72 ] Approximately three-quarters (3/4s) of the way into the interview, and about ten (10) minutes before the interview concluded, at 8:40 pm, the following exchange took place: JS: {Cst. Skeoch} Is there anything else you want to tell me? SK:{Mr. Kinak} No that's it. JS: Well it's just you and me. It's just you and me. Take your time, there's no rush, Sam. What are you thinking? SK: Trying my best to remember what happened JS: Do you remember getting mad? SK: No JS: Did you guys do any drugs last night?

SK:Well there was some but we didn't smoke it {Ex "C"; Tab 3, p. 11, l, 9-17} [ 73 ] The impugned passage is contained, above, in lines 10-12, where Constable Skeoch (JK), says, "Well it's just you and me. It's just you and me. Take your time, there's no rush. Sam. What are you thinking?”

[ 74 ] The defence position is that the Constable's choice of phrase implies that if the accused tells the officer what happened, then what he says will not go any further - or, more precisely, that whatever he says is a private matter between the officer and the accused, and would not be used in Court. [ 75 ] Thus, the defence argues, anything said between the accused and Constable Skeoch during this interview or, at least after the time when the Constable said that "it's just you and me," should not be admitted into evidence. [ 76 ] The defence suggests that prior to this exchange, between the accused and Constable Skeoch, the officer had made considerable effort to put the accused at ease, and then, after gaining Mr.

Kinak's trust, left him with impression that anything the he said would be a private matter between the officer and Mr. Kinak. [ 77 ] Respectfully, I do not agree with this

interpretation of events. [ 78 ] It is true that the Constable Skeoch did, generally, make efforts to put Mr. Kinak at ease - both at the 3:30 pm meeting, as well as during 8:00 pm interview. For example, at various times during these sessions, the Constable asked Mr. Kinak if he wanted a smoke, or something to eat. Constable Skeoch, also asked Mr. Kinak if he had slept, and enquired as to whether Mr.

Kinak felt he had been well treated by the local detachment members. [ 79 ] Such efforts to make a detainee comfortable, are, respectfully, not remarkable. [ 80 ] Prior to Skeoch saying, "It’s just you and me," he had been questioning Mr. Kinak about what happened the previous night, with Lisa. Mr. Kinak provided some detail about this - but also maintained that he could not remember much of the evening. [ 81 ] The Constable, however, was sceptical -and made it plain that he was not buying into Mr.

Kinak's professed faulty memory of events. {Exhibit "C", Tab 3, pp. 8-9, in particular, at p. 9, ll, 20-21} [ 82 ] The question then becomes whether the officer's phraseology, that "it's just you and me," amounts to an inducement, with an implicit quid pro quo, or, is simply an attempt to get the accused to unburden himself, by telling the truth, and to stop hiding behind a lack of memory - to just, 'give it up.' [ 83 ] In the former case, if there is an implicit 'deal,' then, this would constitute an improper inducement, capable of raising a doubt about the voluntariness of anything that Mr.

Kinak said, afterwards, to the Constable. [ 84 ] Our Courts would also be concerned with the inherent unreliability of anything said in such a situation; because, in exchange for something, any accused might be inclined to tell an interviewer what the accused perceived he wanted to hear. [ 85 ] If, however, Constable Skeoch, by saying what he did to Mr. Kinak, was simply employing a technique, in an effort to encourage Mr.

Kinak to tell the truth, then, while there may have been inducement, there is no improper inducement, of the sort which would raise a doubt about the voluntariness of anything that the accused said to the Constable. [ 86 ] I am aware that the Crown must prove, beyond a reasonable doubt, that any statement made by an accused is voluntary. It is not upon the accused to prove that the statement was not voluntary. If there is a reasonable doubt respecting voluntariness, then the statement will not be admitted into evidence.

[ 87 ] But there must be an evidential base to found such a doubt. Most times, this evidence would come from the accused. But such evidence may come, objectively, from any source; quite commonly it emerges during cross-examination of police officers, or, simply by examining the record of what was said between the accused and his interrogators. [ 88 ] Counsel for Mr. Kinak suggests that someone in Mr. Kinak's position "might very well think" that the Constable was instigating a private conversation, when he told Mr. Kinak, "it's just you and me." [ 89 ] Mr.

Kinak did not give evidence in the voire dire - as is his right. However, while Mr. Kinak is not required to testify in order to lay an evidential foundation for exclusion of his statement, he does have the evidential and practical burden of showing the Court, precisely, what evidence he relies upon for this purpose. [ 90 ] From an objective standpoint, the phraseology used by Constable Skeoch - “it's just you and me” - standing alone, is capable of raising the implication of a deal between Mr. Kinak, and the Constable. [ 91 ] At the same time, however, context is everything.

Within the larger context of the whole interview, the only evidence which touches on this critical issue - apart from the video recording, itself - is Constable Skeoch's testimony. [ 92 ] In characteristic fairness, counsel for the accused put the very question which I have to decide - namely, that the Constable might have led Mr. Kinak to believe that some kind of quid pro quo, was in play - directly to the Constable, in the following exchange: Q. {Counsel} By telling him [Mr. Kinak] "it's just you and me," what impression were you trying to pass on to him? A. {Cst.

Skeoch} I'm letting him know that he can talk to me and it's just me and him in the room. He knew he was audio and video recorded. I just, it was just a statement, I'm trying to make him more comfortable and saying, "Sam, it's just you and me." Q. {Counsell} Did you not consider that that might have given him the impression that this was just a private discussion at this point and it's not going to pass beyond just you and me ? A. {Cst.

Skeoch} No, he understood that it was being video and audio recorded and he'd seen the camera in the corner. {Tr: 137, l,23- 138, l,9} [ 93 ] Constable Skeoch's evidence, is, I feel, confirmed, by the video. [ 94 ] It appears, on video, that Mr. Kinak pays no special, or particular, attention to the officer's comment – “it's just you and me” nor, to the question “what are you thinking?” - which followed. [ 95 ] Mr.

Kinak appears to maintain the same composure and attitude toward the officer in response to this questioning, as he did in response to previous questioning. [ 96 ] After the Constable says “it's just you and me,” Mr. Kinak, it appears, is attempting to piece together what happened the night before - just as he did earlier, in response to previous questions. [ 97 ] The video, I feel, confirms the officer's view, that Mr.

Kinak knew he was being taped, and that anything he said was not going to be just a private matter between himself and the Constable. [ 98 ] In my view, the comment made by the Constable, and the questions following it, do not constitute any sort of improper inducement which would raise a doubt respecting the voluntariness of anything said by the accused, either before, or after the Constable's words.

C. The issue of other 'oppressive' conditions (

i) A "suspicion" that there were interviews conducted 'off-camera' [ 99 ] Defence counsel suggests that the evidence of the two young civilian guards, and most particularly, guard Martha Komak, does not 'match' the evidence of Constable Skeoch - namely, that he was the only officer to interview Mr. Kinak. [ 100 ] Counsel's position is that there is a possibility the Court has not been provided with a complete picture as far as the questioning of Mr. Kinak is concerned. That in addition to the interviews shown and heard in Court, there may have been 'additional' questioning of Mr.

Kinak, in the interview room, or in the cell, prior to the video portion played in Court. [ 101 ] But is this really the case? Is the suspicion - as counsel puts it - that there may have been off-camera interviewing taking place, a real suspicion, or just speculation? [ 102 ] The evidence of both guards, as we shall see, in detail, below, does not differ, in any significant way, from Constable Skeoch's evidence.

The memories of both guards about which police officer(s), or how many police officers, dealt with the accused, is, again as we shall see below, 'scanty' at best. [ 103 ] The prisoner log books show that Mr. Kinak's movement from his cell to the interview room matches the times when Constable Skeoch conducted his interviews. And the Constable was clear, that, except for some minor exceptions, noted, in detail, below, he was the only person to have contact with Mr.

Kinak in the interview room; the other MCU members only monitored the interviews. [ 104 ] It is important to examine the evidence of the civilian Inuit guards within a context of what was expected of them at the time. They are hired to watch and record the activities of a prisoner, in cells; and they did so faithfully. They were not required to take note of which officer(

s) may have taken the prisoner from cells, or what may have happened in the interview room. [ 105 ] Nor should we expect, in fairness, these two guards, to recall, during testimony given in May of 2010 - and without the aid of any notes - the various comings and goings of police officers back in September of 2008. [ 106 ] This difficulty - of remembering something that they were not required to record - is best illustrated during the testimony of guard Emila Alareak. During cross-examination, Ms.

Alareak was asked, in English, about the number of police officers present during her shift; whether they were plain clothes or uniformed officers; which rooms within the small detachment the officers may have occupied; and finally, was asked to differentiate between the different rooms inside the detachment. [ 107 ] Ms. Alareak had trouble understanding the questions, and requested the services of an interpreter. But the problem was not just one of language. It was clear, as we shall see, in more detail, below, that even in Inuktitut, Ms.

Alareak was somewhat befuddled by the level of detail which the questions demanded - and that her memory of such detail was poor. {Tr: pp. 57-59} [ 108 ] The detachment building is seriously cramped for space. The detachment commander has an office, there is an interview room, a separate cell block area, and, an open space, called 'the bullpen,' where the detachment constables do paper-work. [ 109 ] The 'interview room' is also the coffee room and the room where an external private phone line is available for detainees to call counsel.

[ 110 ] Corporal McMurrer testified that her only involvement in Mr. Kinak's questioning - aside from taking fingernail scrapings - was in the interview room, during Constable Skoeoch's initial afternoon meeting, to secure an outside phone line for Mr. Kinak. Obviously, as detachment commander, she, and not Constable Skeoch, was familiar with how the phones worked. {Tr: 94, l, 11} [ 111 ] The Corporal's testimony is confirmed by the audio evidence. It is further confirmed by the testimony of Constable Skeoch.

He said that when he first met the accused, in the afternoon, he needed the Corporal's help with the phone, in order to facilitate Mr. Kinak's call to his lawyer. [ 112 ] Mr. Kinak spoke to counsel for about 20 minutes in private and shortly after this, Constable Skeoch had a brief conversation with Mr. Kinak about getting him a change of clothes and a sandwich.

The accused was then lodged back in cells. [ 113 ] During this first encounter with the accused - and other than the incidental presence of the Corporal to help with the phone - Constable Skeoch testified that no other RCMP members had contact with the accused, in the interview room. {Tr: 124, l, 18-23} [ 114 ] Respecting Constable Skeoch's evening session with Mr. Kinak: again, he had arrived in Arviat, along with four (4) other members of the MCU, at around 2 o'clock in the afternoon, on September 22. The other team members were, Staff Sgt. Harold Trupish (the commander), Cst. Morrison, Cst. DeWolff, and Cst.

Coman; another officer accompanied the group, but for unrelated business. [ 115 ] Constable Skeoch testified that he remained in the detachment, from the time he arrived in town until he completed his evening interview with accused at around 8:40 pm. He testified that no other MCU officers - or detachment members - were in Mr.

Kinak's cell, nor in the interview room during his sessions with the accused (excepting, above, the Corporal to help with the phone). {Tr: 132, l, 16 - p. 133, l,10} [ 116 ] The Constable said that other MCU officers were present, in the detachment, at the time of the 8 pm interview, but they were in the "bullpen," not the interview room. Some were monitoring the recorded interview, but none took

part in questioning the accused. The interview was briefly interrupted when one of the MCU members (Constable Morrison) knocked on the door to fetch Constable Skeoch for a phone call. {Tr: 128, l, 4-12} [ 117 ] The question then becomes, how does Constable Skeoch's evidence differ materially from that of the two civilian guards, Martha Komak, and Emelia Alareak? [ 118 ] Ms. Komak worked from about 2:00 am, when Mr. Kinak was first taken into custody, until 8:00 am. Emilia Alareak took over from 8 am until 4 pm. And Ms.

Komak returned to work from 4 pm until midnight. [ 119 ] It was clear, during her testimony, that Ms. Komak was trying to piece together, as best she could, the various movements of police officers in the detachment, during her shift. [ 120 ] Ms. Komak made notes of when police came to the cell to attend to or fetch Mr. Kinak, but she has little independent recollection beyond this of who the officers were, how many there were, or what they did. [ 121 ] When Ms. Komak was asked how many officers dealt with Mr.

Kinak at 4:00 am {when the scrapings were taken}, she said that she could not remember. {Tr: 32, l, 1-16} [ 122 ] In the early morning hours, Ms. Komak made a note that "officers took clothes" from Mr. Kinak at around 6:00 am. When pressed, however for more detail, she said that she saw four or five officers - some uniformed, some plain clothes - carrying Mr. Kinak's clothes around this time. {Tr: 30-31}.

[ 123 ] The MUC had not, however, at this point, even arrived in town. [ 124 ] Later, Ms. Komak testified that the first time she saw an officer in plain clothes, was at around 5pm, in the coffee room. When asked if anyone was with this officer, she replied, "Just him, I think; I don't remember." {Tr: 37, l, 12-27}. [ 125 ] Ms. Komak remembered that she saw Mr. Kinak being taken to the coffee room on one occasion - at 8:05 pm. When questioned as to who was with Mr.

Kinak, in the coffee room, she simply said "the officers.'' When she was asked how many officers there were, in the room, she said, "I don't know." {Tr: 38, l, 20-22} [ 126 ] Again, Constable Skeoch testified that he was the only officer interviewing Mr. Kinak, at this time, in the evening, but that Constable Morrison knocked on the door with a message. [ 127 ] Ms. Komak's evidence does not conflict with Constable Skeoch's testimony.

It does not raise any "suspicion" that there had been any off-camera, undisclosed, interviewing going on. [ 128 ] Similarly, Emilia Alareak - who, again, worked the 8 am to 4 pm shift - has little independent recollection about which police officers, or how many police officers, dealt with Mr. Kinak. [ 129 ] Ms. Alareak did remember that Mr. Kinak was taken to the coffee room by Corporal McMurrer at 3:30 pm, about 1/2 hour before Martha Komak came back on shift. But then she went for a smoke when the police were with the accused facilitating his call to a lawyer. [ 130 ] Ms.

Alareak testified, initially, that she could not remember if Corporal McMurrer was the only officer in the room with Mr. Kinak. Later, she said that "maybe" there were as many as three (3) other officers there as well, but she didn't know who. {Tr: 50, l, 5- 27; 51, l, 11-18} [ 131 ] Ms. Alareak had little memory of how many officers may have been in the coffee room with Mr. Kinak at 3:30 pm. In fact, when the proposition was put to her by defence counsel, that there were at least two (2) visiting MUC officers in the room, her reply was "I think so.

I don't quite remember." {Tr: 59, l, 11-23} [ 132 ] There were so many officers, coming and going, in the small confines of the detachment, that I would not expect Ms. Alareak to have much memory of which, or how many officers, may have talked with Mr. Kinak when he was taken away from the cell and, incidentally taken away from her, as well. She was able to recall her afternoon smoke break, but little else. [ 133 ] I accept the evidence of Constable Skeoch respecting what happened at the coffee room at 3:30 pm.

This meeting appeared to be an initial 'meet & greet' on the part of the Constable, as he, and Corporal McMurrer, made arrangements for Mr. Kinak to talk privately with counsel. [ 134 ] I am not suspicious that any sort of off-camera interviewing took place around this time - nor, for that matter, at any time during Ms. Alareak's shift.

She testified, for example, that she saw no police even enter the accused's cell. {Tr: 56, l, 15-18} [ 135 ] In conclusion - and to repeat - I do not believe that the evidence of the guards conflicts, materially, with the testimony of the two (2) officers, Corporal McMurrer, or Constable Skeoch. [ 136 ] Accordingly, it is, respectfully, speculative to suggest that there was any non-recorded interviewing done by police. (ii) The possibility that the interview(

s) took place at a time when Mr. Kinak had been deprived of sleep

[ 137 ] Finally, and within the context of an 'oppressive' atmosphere, counsel for Mr. Kinak has invited the Court to consider whether Constable Skeoch's interviews may have been conducted at a time when the accused had been deprived of sleep. [ 138 ] Counsel, once again with characteristic fairness, put this proposition directly to the Constable, who emphatically denied that such was the case. The Constable testified that Mr. Kinak had plenty of opportunity to get sleep prior to the interviews, and that he (the Constable) had assured himself that the Mr.

Kinak was rested enough to proceed with the interviews. {Tr: 138, l,14 - 141, l,22: and, Transcript of the 3:30pm interview, 22 September: Exhibit "C", Tab 2, p. 7. l, 14-21} [ 139 ] Mr. Kinak had been taken into custody shortly before 2:00 am. He was then either sleeping, or resting, until he was awakened shortly after 4:00 am, to provide fingernail scrapings, and, again, shortly before 6:00 am, when police took his clothing. [ 140 ] It appears, as well, that Mr.

Kinak had quite a bit of rest, prior to his first meeting with Constable Skeoch, in the afternoon, and again, before the evening session, some four (4) hours later. [ 141 ] And, as pointed out by Crown counsel, the guard logbooks show that Mr. Kinak had plenty of opportunity for sleep prior to his meetings with Constable Skeoch. From 6 am until 3:30 pm, and again, from around 4:40 pm until 7:50 pm, the logbooks show that Mr.

Kinak was either sleeping, or appeared to be sleeping, or lying down, or resting, most of the time, while in his cell. [ 142 ] Finally, there were no impediments, in place - intentional or otherwise - to prevent, or disrupt Mr. Kinak's sleep. [ 143 ] Overall, the testimony from the guards, together with that of Constable Skeoch, shows that Mr. Kinak was well treated and well rested - something which was confirmed by Mr. Kinak, himself, during his discussions with the Constable. {Exhbit "C" Tab 2, p.7. l, 2-9} IV. CONCLUSION [ 144 ] The accused, Mr. Kinak, had no trouble communicating, in English, with police.

He also knew what he was saying, when he spoke with Constable Skeoch, on September 22 - both in the afternoon, and later, in the evening. Mr. Kinak was also aware that whatever he said to the Constable could be used later, against him, in Court. [ 145 ] There were no 'off-camera' interviews conducted by police with Mr. Kinak. Constable Skeoch was the only officer who questioned Mr. Kinak about the offence. He did so, twice: first, at 8:00 pm, on September 22, for approximately forty (40) minutes and, second, at 3:40 pm on September 24, for about 10 minutes (at the accused's request). [ 146 ] Mr.

Kinak had never been deprived of sleep prior to any of his meetings with Constable Skeoch. [ 147 ] During the 8 pm interview, on September 22, the Constable was slightly persistent, and slightly accusatorial - because he was suspicious of Mr. Kinak's professed memory loss. [ 148 ] The Constable, however, was never aggressive, or hostile. The Constable did not take advantage of Mr. Kinak's trust nor did he offer up any improper inducement to get Mr.

Kinak to talk. [ 149 ] The Crown has met the onus of establishing that the afternoon meeting of September 22, between Constable Skeoch and the accused, as well as the interview conducted by the Constable, subsequently, later that evening, meet the requirements of the confessions rule. [ 150 ] There is no doubt about the voluntariness of Mr. Kinak's statements to the Constable - and they are, accordingly, admissible, in

evidence, at his trial. Dated at the City of Iqaluit this 19th day of September, 2011 ___________________ Justice N. Sharkey Nunavut Court of Justice Procedural Addendum There is - as agreed between Counsel - some judicial editing necessary, as the statement made by Mr. Kinak, during the evening interview of September 22, contains minimal reference to alleged 'other' criminal conduct. The details of the required editing are itemized in the formal Ruling issued on November 23, 2010.