R v Whiskeyjack, 2023 ABKB 101

Court of King’s Bench of Alberta Citation: R v Whiskeyjack, 2023 ABKB 101 Date: 20230223 Docket: 190452904Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Julian Catalin Whiskeyjack Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1) . Judgments filed in this matter concerning pre-trial applications may not be published, broadcast, or transmitted in any manner before the jury, at this time not selected, retires to consider its verdict. This decision is available from the court file.

It may be published only after the jury retires to consider its verdict. This Order is provisional until that time, before which anyone who wishes to challenge the restriction on publication may apply to this Court. This Order ceases to have any effect if the matter is no longer being tried by a judge and jury. _______________________________________________________ Ruling on Voir Dire of the Honourable Justice G.S. Dunlop _______________________________________________________ 1. Overview

[ 1 ] On September 28, 2018 Lindsay Jackson’s mother contacted police to report that Lindsay Jackson had been missing for about a week. As part of their investigation, the police spoke to Jena Hunter on October 1, 2018. Ms. Hunter told police that she and Julian Whiskeyjack had been with Ms. Jackson on the evening of September 21, 2018. Ms. Hunter said Ms. Jackson got into an argument with Jermaine Steinhauer, following which Ms. Hunter and Mr. Whiskeyjack went home. Ms. Hunter told police that the following day she overheard Mr. Steinhauer and Mr.

Whiskeyjack say things like “I hope she knows how to swim” which Ms. Hunter understood to be a reference to Ms. Jackson. [ 2 ] On October 3, 2018, at 4:35 pm, the police found Lindsay Jackson’s remains on the south shore of the North Saskatchewan River approximately 360 metres east of the Duvernay Bridge hear Highway 29. [ 3 ] On January 9, 2019 the police arrested Julian Whiskeyjack for the murder of Lindsay Jackson. Mr. Whiskeyjack is presently on trial for first degree murder. The trial began on January 9, 2023 with a voir dire regarding three interactions between the police and Mr.

Whiskeyjack on October 2, 4 and 5, 2018. Over the week of January 9 – 13, 2023, I heard evidence and argument on the voir dire . I reserved my decision until today. [ 4 ] The Crown seeks a ruling that the statements made by Mr. Whiskeyjack during his interactions with police in October 2018 were voluntary. Mr. Whiskeyjack seeks a finding that he was detained by police during the October 2, 2018 interaction and that his s. 10 Charter rights were violated because the police failed to advise him of his right to counsel. Clearly the police did not advise Mr.

Whiskeyjack of his right to counsel during any of their interactions on October 2, 4 and 5, 2018, so Mr. Whiskeyjack’s Charter claim turns on whether he was detained on October 2, 2018. [ 5 ] I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Whiskeyjack’s statements to police were voluntary. During the October 2, 2018 interaction, the police asked questions about Mr. Whiskeyjack’s son and told Mr. Whiskeyjack that he had more to lose than other people, in reference to his seven-year-old son.

In the context of a conversation in a police vehicle with an aboriginal person in front of his home, that statement by police was implicitly threatening. Along with other factors which I will review in greater detail, this threat leaves me with a reasonable doubt that Mr. Whiskeyjack’s statements to police on October 2, 2018 were voluntary. [ 6 ] I also find that Mr. Whiskeyjack was detained by police on October 2, 2018, when they told him not to get out of the police vehicle to retrieve his cell phone. In the context of the implicit threat to remove his child, and threat to remove everyone from Mr.

Whiskeyjack’s house if he did not surrender his phone, I am satisfied on a balance of probabilities that Mr. Whiskeyjack was psychologically detained at that point, or earlier. They police had an obligation to advise Mr. Whiskeyjack of his right to counsel, to facilitate his access to counsel and to hold off questioning until he had had an opportunity to speak to counsel. They failed to do any of that. Consequently, I conclude that Mr. Whiskeyjack’s rights under s. 10 of the Charter were breached. [ 7 ] While the police attempted to make a fresh start to break the connection between their interactions with Mr.

Whiskeyjack on October 2, 2018 and the subsequent interactions with him on October 4 and 5, 2018, they failed to do so because their message was lost in the constant interruptions on October 4, 2018. Furthermore, the police failed to tell Mr. Whiskeyjack that they had breached his Charter rights on October 2, 2018, they failed to advise him of his right to counsel, and they failed to give him the secondary caution that his decision to speak to the police should not be influenced by anything he had already said to the police or anything they had said to him.

Consequently, I am left with a reasonable doubt that any of Mr. Whiskeyjack’s statements to police on October 2, 4 and 5 were voluntary. 2. Law 2.1 Voluntariness [ 8 ] In the recent decision of R v Beaver 2022 SCC 54 , the Supreme Court of Canada summarized the general principles regarding voluntariness at para. 45 – 48: 45 The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary ( Oickle , at paras. 30 and 68; R. v.

Spencer, 2007 SCC 11 , [2007] 1 S.C.R. 500, at para. 11 ; Tessier (SCC) , at paras. 39, 68 and 89). Under the confessions rule, an involuntary confession “always warrants exclusion” ( Oickle , at para. 30; see also R. v. Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405, at para. 38 ). But a voluntary confession need not always be admitted into evidence.

If a voluntary confession was obtained in a manner that breached the Charter, it can still potentially be excluded under s. 24(2) ( Oickle , at para. 30; Singh , at para. 38 ). 46 At the heart of the confessions rule is the delicate balance between individual rights and collective interests in the criminal justice system ( Singh , at paras. 1, 21, 27-28, 31 and 34 ; Tessier (SCC) , at paras. 4 and 69; Oickle , at para. 33). The “twin goals” of the rule involve “protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes” ( Oickle , at para. 33).

On the one hand, the common law recognizes an individual’s right against self-incrimination and right to remain silent, such that an individual need not give information to the police or answer their questions absent statutory or other legal compulsion; on the other hand, the police often need to speak to people when discharging their important public responsibility to investigate and solve crime. 47 Voluntariness, broadly defined, is the “touchstone” of the confessions rule ( Oickle , at paras. 27, 32 and 69; Spencer , at para. 11 ; Singh , at para. 31 ).

Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justice system ( Oickle , at paras. 32 and 70; Singh , at paras. 30 and 34 ; Tessier (SCC) , at paras. 70 and 72).

A statement may be involuntary “because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self- incrimination and the right to silence” ( Tessier (SCC) , at para. 70).

48 The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority” ( Tessier (SCC) , at para. 68).

The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry (see Oickle , at paras. 47, 66-67 and 71; Spencer , at paras. 11-12 ; Singh , at para. 35 ; Tessier (SCC) , at paras. 5, 68, 76 and 87). 2.2 Charter right to counsel [ 9 ] S. 10 of the Charter reads: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [ 10 ] None of the police officers who interacted with Mr. Whiskeyjack on October 2, 4 and 5 told him that he had a right to talk to a lawyer. None of them helped him obtain access to a lawyer. None of them held off questioning until he could speak to a lawyer. Consequently, if Mr. Whiskeyjack was detained at any time during his interactions with police, his s. 10(

b) rights were breached by the police. [ 11 ] In the recent decision of R v Lafrance 2022 SCC 32 , the Supreme Court of Canada addressed detention as follows at paragraphs 21 and 22: 21 Detention refers to “a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state” (R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, at para. 21 ; Le , at para. 27).

In the heat of the moment, it is not always easy for ordinary citizens, who may be uninformed of their rights or the scope of the police’s powers, to know whether they have a choice to comply with a request by the police. An individual may perceive “a routine interaction with the police as demanding a sense of obligation to comply with every request” ( Le , at para. 26, referring to S. Penney, V. Rondinelli, and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at p. 83).

For that reason, this Court has recognized that, “even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply ... and that they are not free to leave” ( Le , at para. 26 (emphasis added)). Even so, not every encounter between state and citizen effects a detention ( Suberu , at para. 3 ; Le , at para. 27); no detention is effected, and therefore s. 10(

b) rights are not breached, where an individual voluntarily assists the police by, for example, freely agreeing to provide a statement. 22 In this case, Mr. Lafrance says that his choice to cooperate with the police on March 19 was, in substance, imposed by way of psychological constraints. Psychological detention exists where an individual is legally required to comply with a direction or demand by the police, or where “a reasonable person in [that individual’s] position would feel so obligated” and would “conclude that he or she was not free to go” ( Grant , at paras. 30-31; Le , at para. 25).

It is that latter category which Mr. Lafrance says describes his circumstances. Three factors — identified in Grant and expanded upon in Le — are to be considered and balanced: 1. The circumstances giving rise to the encounter as they would reasonably be perceived by the individual; 2. The nature of the police conduct; and 3.

The particular characteristics or circumstances of the individual where relevant ( Grant , at para. 44; Le , at para. 31). [ 12 ] A singling out of a person by police for investigative purpose is a factor which weighs in favour of a finding of detention: Lafrance at para 33 . [ 13 ] The Supreme Court of Canada noted as follows at paragraph 34 of Lafrance : The second Grant factor directs a court's attention to the nature of the police conduct throughout the encounter.

Specifically, their actions and language used, their use of physical contact, the place where the encounter occurred, the presence of others, and the duration of the encounter, may all play a role in shaping the perceptions of the reasonable person in the accused's shoes ( Grant , at para. 44(2)(b); Le , at paras. 31(

b) and 43). [ 14 ] A statement by police that the person is free to go and is not obliged to say anything is relevant but not determinative: Lafrance at para 35 – 39 . [ 15 ] Physical proximity between the police officers and the person they are interviewing is also relevant to detention as set out in para 41 of Lafrance : 41 As is evident from the analysis in Le (at para. 50) and Grant (at paras. 50-52), considering the use by police of physical contact with a subject extends to their physical proximity to a subject.

Even where, strictly speaking, there is no physical contact, deliberate physical proximity within a small space can create an atmosphere that would lead a reasonable person to conclude that leaving is not possible ( Le , at para. 50; Grant , at para. 50). This makes sense, since physical proximity can indicate the possibility of physical contact. [ 16 ] The Supreme Court of Canada in Lafrance provided specific direction to trial judges regarding detention where the subject of the police inquiries is indigenous, at para 57 – 58 of Lafrance :

57 As recognized by the trial judge, Mr. Lafrance is Indigenous. As such, he is a member of a population that continues to bedisproportionally subjected to police encounters and overrepresented in the criminal justice system (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, at paras. 58-65; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 57-60; Le , at paras. 90-97 and108).

The assessment of whether an Indigenous person was detained must be mindful of “[g]enerations of systematic racism,discriminatory policies and practices directed at Indigenous people” and of the role of police in implementing these policies and practices(Statistics Canada, Perceptions of and experiences with police and the justice system among the Black and Indigenous populations inCanada (February 2022), at p. 12).

This has fostered mistrust, confirmed by the finding of a February 2022 study that “[a] higherproportion of Indigenous people under 40 felt police were doing poorly at enforcing the laws, promptly responding to calls, ensuring thesafety of citizens, and treating people fairly compared to the similarly aged non-Indigenous, non-visible minority population” (StatisticsCanada, at p. 11). This finding applied equally to older Indigenous people (Statistics Canada, at p. 11). 58 This consideration will often weigh in favour of finding a detention, but not invariably.

A court cannot simply assume that allIndigenous people’s experiences with the police are Charter non-compliant or otherwise oppressive. And not all Indigenous people willbe vulnerable, at all or in the same way, when interacting with police (K. G. Watkins, “The Vulnerability of Aboriginal Suspects WhenQuestioned by Police: Mitigating Risk and Maximizing the Reliability of Statement Evidence” (2016), 63 Crim.

L.Q. 474, at p. 479).The point is not that Grant or Le leave no room for nuance in evaluating interactions between Indigenous people and the police; it is,rather, that trial judges must be alive to (1) “the relational aspect” between the police and Indigenous persons (Le , at para. 81),characterized as it has been by an overwhelming power imbalance and history of discrimination; and (2) the resulting possibility thattheir interactions would reasonably be perceived by Indigenous persons as depriving them of choice to cooperate. 2.3 Fresh start / derived confession rule [17] While both parties agreed that I should not address what remedy is appropriate under s. 24 of the Charter, should I find therewas a breach, they each made submissions regarding whether there was a fresh start in the October 4 and 5 interactions that would breakthe connection to any police conduct on October 2 relating to voluntariness or a Charter breach. [18] The concept of a fresh start was addressed by the Supreme Court of Canada in Beaver at para 97 – 98: 97 A large body of appellate jurisprudence and academic commentary has recognized that evidence will not be “obtained in amanner” that breached the Charter when the police made a “fresh start” from an earlier Charter breach by severing any temporal,contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote ortenuous.

In some cases, the police may make a “fresh start” by later complying with the Charter, although subsequent compliance doesnot result in a “fresh start” in every case. The inquiry must be sensitive to the facts of each case (see R. v. Wittwer, 2008 SCC 33, [2008]2 S.C.R. 235, at paras. 3 and 21-22; Plaha, at paras. 47 and 53; R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46, at para. 31; R. v. Simon,2008 ONCA 578, 269 O.A.C. 259, at para. 69; R. v. Woods, 2008 ONCA 713, at paras. 10-11 ; Manchulenko, at paras. 68-70;R. v.

Hamilton, 2017 ONCA 179, 347 C.C.C. (3d) 19, at para. 54; McSweeney, at para. 59; Paciocco, Paciocco and Stuesser, at p. 485; P.J. Sankoff, The Law of Witnesses and Evidence in Canada (loose-leaf), at § 20:10; S. Penney, V. Rondinelli and J. Stribopoulos,Criminal Procedure in Canada (3rd ed. 2022), at ¶¶10.122-10.124; R. J. Marin, Admissibility of Statements (9th ed. (loose-leaf)), at §§2:36 and 5:68; D.

Watt, Watt’s Manual of Criminal Evidence (2021), at §41.01; Ewaschuk, at § 31:1565). 98 The concept of a “fresh start” under s. 24(2) of the Charter was adopted from the common law “derived confessions rule”, underwhich a court examines whether an otherwise voluntary confession is sufficiently connected to a prior involuntary confession to betainted (Penney, Rondinelli and Stribopoulos, at ¶¶4.50-4.52 and 10.122-10.123; Paciocco, Paciocco and Stuesser, at p. 426, fn. 179, andp. 485, fn. 72).

Under this rule, courts evaluate whether a voluntary confession is admissible, despite the prior involuntary confession, bymaking a “factual determination based on factors designed to ascertain the degree of connection between the two statements”, such as“the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminatingevidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities betweenthe two circumstances” (R. v.

I. (L.R.) and T. (E.), (SCC), [1993] 4 S.C.R. 504, at p. 526; see also R. v. R. (D.), (SCC), [1994] 1 S.C.R. 881, at p. 882; R. v.

S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 28-30; Manchulenko, atparas. 67 and 69). [19] At paragraph 103 in Beaver, the Supreme Court provide some guidance regarding potential indications of a fresh start: 103 When undertaking the case-specific factual inquiry into whether the police effected a “fresh start”, some potentially illustrativeindicators include: • Whether the police informed the accused of the Charter breach and dispelled its effect with appropriate language (R. (D.), at p. 882).What constitutes appropriate language will vary with the circumstances of the case.

In some cases, it may be sufficient to say, “we’regoing to start over”; in other cases, more detailed or specific language may be needed to remove the taint from the earlier Charterbreach; • Whether the police cautioned the accused after the Charter breach but before the impugned evidence was obtained (Plaha, at para. 53;Hamilton, at paras. 58-59; Woods, at para. 9).

Ideally, this would involve both a primary caution (”You are not obliged to say anythingunless you wish to do so, but whatever you say may be given in evidence” (Singh, at para. 31; Manninen, at p. 1237)), and a secondarycaution (”Your decision to speak to the police should not be influenced by anything you have already said to the police or the police havealready said to you” (Manninen, at p. 1238)); • Whether the accused had the chance to consult counsel after the Charter breach but before the impugned evidence was obtained(Manchulenko, at para. 69; Woods, at paras. 5 and 9; R. v.

Dawkins, 2018 ONSC 6394, at para. 62 ); • Whether the accused gave informed consent to the taking of the impugned evidence after the Charter breach (Simon, at para. 74); • Whether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was

obtained (see Lewis, at para. 32 ; Woods , at para. 9 ; McSweeney , at para. 62; I. (L.R.) and T. (E.) , at p. 526 ; Dawkins , at para. 62 ); and • Whether the accused was released from detention after the Charter breach but before the impugned evidence was obtained. [ 20 ] Where one statement is tainted by a threat or inducement, the Crown has the burden of proving that the threat or inducement did not continue to operate at the time of any subsequent statement: Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 6 th ed. (Toronto, Ont: LexisNexis, 2022) at para 8.161. 2.4 Conclusion on the law [ 21 ] Given the overlap between the issues of voluntariness and detention, I will consider both issues as I review each of the interactions between the police and Mr.

Whiskeyjack which are the subject of this voir dire . When reviewing the October 4 and 5 interactions, I will also consider the fresh start issue. 3. October 2, 2018 interaction [ 22 ] On October 2, 2018, in the middle of the afternoon, Constable William Pope and Constable Gillian Dunn drove to Mr. Whiskeyjack’s home in an unmarked police vehicle. A dog outside the home caused Constable Pope to honk the horn of the police vehicle to get Mr. Whiskeyjack’s attention, rather than simply knocking on the door. Mr.

Whiskeyjack came out of the house and he had a conversation with the two police officers outside the vehicle before all three of them (Mr. Whiskeyjack and the two police officers) got into the police vehicle and had a further conversation. The conversation inside the vehicle was recorded with a digital audio recorder. The conversation outside the vehicle was not. [ 23 ] The police vehicle was a standard civilian vehicle, with the addition of a police radio, police lights and a siren. The siren was under the hood. The lights were behind the front windshield or behind the grill.

The radio was in a compartment like a glove compartment. The vehicle was not obviously a police vehicle. Furthermore, the doors were not modified to prevent an occupant from leaving. As with a standard vehicle, anyone inside could exit the vehicle by opening the door, or, if the door was locked, unlocking the door and then opening it. [ 24 ] Constables Pope and Gillian were in civilian clothes. They each had their badge and gun visible. They were not wearing police uniforms or any police equipment other than their badges and guns. [ 25 ] There is no recording of what was said outside the police vehicle.

According to Constable Pope, he and Mr. Whiskeyjack talked on the driveway for “a brief moment” during which Mr. Whiskeyjack agreed to get into the police vehicle. Constable Pope testified that he told Mr. Whiskeyjack that he and Constable Dunn were the police, that they were investigating the disappearance of Lindsay Jackson and that they had heard Mr. Whiskeyjack was someone they should be speaking to because he was there the night she was last seen. According to Constable Pope he also told Mr. Whiskeyjack that he was not under arrest but anything Mr.

Whiskeyjack said could be used as evidence in court. [ 26 ] According to Constable Dunn, before the recorded statement started she identified herself to Mr. Whiskeyjack as a police officer and Mr. Whiskeyjack was told that she and Constable Pope were investigating Lindsay Jackson’s disappearance and that Mr. Whiskeyjack’s name had come up in the course of that investigation. [ 27 ] There are a couple of references in the recorded statement to what was said in the earlier unrecorded statement.

Of particular note is what Constable Pope said at lines 394 – 407 of the transcript: POPE: But like I told you when we first started speaking, and the reason why I wanted to talk to you, it’s better that if something happened, that you come clean with it now and talk to us about it. As opposed to us finding out in three days, ‘cause we’re always we always find the truth. Whether it takes a day or ten days. By the end of the day tomorrow there’s gonna be close to twenty investigators up here working on her disappearance so we’re gonna unravel the truth. We always find it out.

So in a couple of days if we find out that you’re more involved and you haven’t been truthful with us, whereas right now you can point us in the right direction, and be more of a help and an aid to the investigation as opposed to someone we’re looking into down the road, in a couple of days. It’s gonna be, th- that’s gonna reflect better on you. Do you understand what I’m saying there? [ 28 ] The Crown submitted that Constable Pope’s reference at line 394 of the transcript to what he told Mr.

Whiskeyjack when they first started speaking, could have been a reference to what Constable Pope said at pages 4 and 5 of the transcript. I disagree. Constable Pope said nothing at pages 4 and 5 of the transcript, or anywhere before line 394, about it being better for Mr. Whiskeyjack to come clean now rather than later. I conclude that that conversation took place outside the police vehicle before the recording started inside the vehicle.

The fact that neither Constable testified to this part of the unrecorded conversation suggests that they each either forgot about it, or chose not to mention it. [ 29 ] One of the factors in my finding that the Crown has not proven voluntariness beyond a reasonable doubt is the fact that the police said something about it being better for Mr. Whiskeyjack to tell him what he knew, but the Crown has not proven what was said. In particular, I have no evidence regarding what the police said about why and how it would be better for Mr.

Whiskeyjack to speak to police, during the conversation outside the vehicle before the recording started. [ 30 ] The Crown submitted that I could rely on the police officers’ testimony that they made no threats or inducements to Mr. Whiskeyjack to find that none were made during the unrecorded conversation. I disagree. The fact that neither Constable Pope nor Constable Dunn mentioned this part of the unrecorded conversation in their testimony before me undermines the reliability of their testimony regarding what happened.

[ 31 ] This is not a case where I have no information about what was said in the unrecorded conversation. I have Constable Pope’s statement in the recorded conversation that something was said earlier about it being in Mr. Whiskeyjack’s best interests to speak to police. The absence of any other evidence about what was said leaves me with a reasonable doubt that threats or inducements were made. [ 32 ] While there is a transcript of the audio recording of the October 2, 2018 interaction between the police and Mr.

Whiskeyjack inside the police vehicle, it is essential to listen to the audio recording to fully appreciate the encounter and to apply the law regarding voluntariness and detention. The same is true with respect to the interactions between Mr. Whiskeyjack and the police on October 4 and 5, 2018. [ 33 ] Near the beginning of the October 2, 2018 interaction, the police advised Mr. Whiskeyjack of his right not to speak to police, which is sometimes referred to as the primary caution. At lines 12 – 26 of the transcript, Constable Pope and Mr.

Whiskeyjack say the following: POPE: Okay, we’re currently siting in a van in from of Julian’s house. And, I’m just gonna leave this here. And uh currently investigating the disappearance of Lindsay JACKSON, is that right? Yeah Lindsay JACKSON here out on Saddle Lake uh Setttlement. And we just spoke a little bit to, we just spoke a little bit beforehand about what we wanted to talk to you about.

But before we get into that I just wanna make sure you understand okay that like, anything that you say here in this interview, depending on your involvement could be used against you in court if you had anything to do with the disappearance of Lindsay. Do you understand that? WHISKEYJACK: Mm hm. POPE: Okay. You understand you don’t have to say anything to me? WHISKEYJACK: Yup. POPE: You do, okay. What does that mean to you? WHISKEYJACK: That I don’t have to say anything. [ 34 ] The provision of the primary caution and Mr.

Whiskeyjack’s statement that he understood he did not have to speak to police is evidence of voluntariness, but it is not necessarily determinative. [ 35 ] During the interaction between Mr. Whiskeyjack and the two police officers, Mr. Whiskeyjack’s son came out of his house and approached the police vehicle. (In these reasons I use the letter “J” in substitution for the child’s name.) At that point an exchange took place which is recorded at lines 523 – 558 of the transcript: POPE: Hi Bud. J: Hi um, who are you?

POPE: We’re with the police we’re just here talking to … J: Okay, who … POPE: (Talk over) And who’s this guy to you, is it your uncle? WHISKEYJACK: (Talk over) That’s that no that’s my uh son. POPE: That’s your son? DUNN: Aw. POPE: J-just talkin’ to your dad here real quick ar- he’s helpin out. J: Uh you’re the police? POPE: Yup. DUNN: (Talk over) Yeah he’s just helping us with something. POPE: Do you wanna hear our siren? J: Yeah. (Siren sound) J: Uh … POPE: It’s not as not as cool as a real police car, but it works. J: Oh. POPE: Okay. We’re only gonna have your dad for about five more minutes, okay?

He’s not in any trouble, he’s just talkin’ to us. You wanna wave to him?

WHISKEYJACK: I’ll be inside in a bit here (unintelligible). J: Okay. POPE: Alright? WHISKEYJACK: Yeah. J: (Unintelligible) POPE: Alright. I’ll turn the lights on for ya, you wanna see? J: Yeah. POPE: Get in the front, I’ll show ya. Go in the front ‘cause you can only see ‘em in the in the window. Can you see them up here? WHISKEYJACK: Ha. POPE: Pretty cool ‘eh? J: Yeah pretty cool. POPE: Alright, you dad’ll be in in about five minutes okay bud? J: Okay. POPE: Alright, thanks. [ 36 ] The statement by Constable Pope that they would “have your dad for about five more minutes” implied to both Mr.

Whiskeyjack and his son that the police would decide when Mr. Whiskeyjack could leave. [ 37 ] Immediately after the interaction with Mr. Whiskeyjack’s child, an adult approached the police vehicle and asked what was going on. Then the interaction between the police and Mr. Whiskeyjack continued as follows at lines 604 to 632 of the transcript: DUNN: (Talk over) Yeah. So anyway what I’m I’m thinking what I’m worried about and especially seeing your son here now, too right? You have a little boy? WHISKEYJACK: Mm hm.

DUNN: Um, and like um Bill said as far as being a role model for him and trusting … WHISKEYJACK: (Talk over) Yeah. DUNN: … you’re putting a lot of faith and trust in those two people that um, they’re … WHISKEYJACK: (Talk over – unintelligible) DUNN: … going to say the same thing that you’re going to say, right? WHISKEYJACK: I don’t know if they gonna say the same thing uh, they were pretty drunk too. DUNN: Okay. But you’re putting a lot of trust in them. WHISKEYJACK: Yeah I am. Got a lot of trust in them.

DUNN: (Talk over) And that’s what I’m I’m thinking for you when I see you and when I see that little boy there, that uh … (Tone) DUNN: … the trust that you’re putting in them is o- weighing awfully high on what you’re telling us today. WHISKEYJACK: Well they’re good people, well … as far as I know. DUNN: And sometimes people get thrown under the buss in different situations, right? WHISKEYJACK: Mm hm.

DUNN: An um, so everything that you’re saying I I agree with him that there’s some truth in what you’re saying, but you’re letting leaving out big parts of the story in order to protect people that you think are gonna do the same for you. And I don’t know if they have as much to lose as you have to lose. [ 38 ] The reference to Mr. Whiskeyjack’s son and to Mr. Whiskeyjack having more to lose than other people was implicitly threatening. The implication was that Mr. Whiskeyjack was at risk of losing his son.

This was particularly menacing in the context of the long history of aboriginal children being taken by force from their families, often by police, and confined to residential schools where they were abused. Furthermore, even in the absence of residential schools, aboriginal children continue to be removed from their families and placed in government sponsored care at a greater rate than non-aboriginal children. This context would have heightened the implicit

threat in Constable Dunn’s words, quoted above. [ 39 ] Later in the interview, Mr. Whiskeyjack’s child came up again at lines 863 – 890 in the transcript: POPE: Okay. Where’s your phone right now anyway? It’s in the house? WHISKEYJACK: It’s in the house somewhere (yawns). POPE: Mm kay. (Clicks tongue) Um … WHISKEYJACK: (Yawns) My son usually plays with it. POPE: What’s that sorry? Couldn’t understand. DUNN: (Talk over) His son usually plays with it. WHISKEYJACK: (Talk over) My son usually plays with it. POPE: Oh the same little guy that came here? WHISKEYJACK: Yeah. POPE: What’s his name?

WHISKEYJACK: His name’s J. POPE: J, how do you spell that? WHISKEYJACK: J. POPE: Oh Okay, how old’s he? WHISKEYJACK: Seven. POPE: He seems like a smart kid. Is he just getting back from school there today or? WHISKEYJACK: (Talk over) Yeah. POPE: Where does he go to school at out here? WHISKEYJACK: (Yawns) Uh St. Paul Elementary. POPE: So they bus him in and out? WHISKEYJACK: Yeah. POPE: That’s pretty good. Where’d they drop him off at right at the driveway? I didn’t see. WHISKEYJACK: Yeah, right at the driveway and then they pick him up every morning.

POPE: Oh that’s really safe then. [ 40 ] The questions about Mr. Whiskeyjack’s son’s name, age and where he went to school were not innocuous. Those details would assist authorities in removing the child from Mr. Whiskeyjack’s care. There is no apparent reason for the police to gather this information as part of their investigation of Ms. Jackson’s disappearance. From Mr.

Whiskeyjack’s point of view, these questions likely reinforced the threat implied by the earlier “you have more to lose” comment. [ 41 ] Immediately after the passage quoted above, Constable Pope’s tone changed to one of command as he announced he would be seizing Mr. Whiskeyjack’s phone. This is set out at lines 890 to 903 of the transcript: POPE: … Okay, um, Julian about your phone, okay? I’m gonna be seizing your phone, okay? And I know its in the house, so there’s one of two ways we can do this okay? If you wanna just get it for me, we’ll call out to J, maybe he can go in and grab it.

And then h-he gives it to me. Okay? If not, I’ve got another police car on the way here right now, okay? Just to keep the peace, if you don’t wanna do it that way, then I kick everybody outta the house right now and I seize the house and write a search warrant for it, and go in and get it okay? WHISKEYJACK: Well I could go there and get it. POPE: Well I wanna leave you here, okay? That’s … WHISKEYJACK: (Talk over – unintelligible). POPE: (Stammering) Is that fair? WHISKEYJACK: Yeah you can just yeah (unintelligible).

[ 42 ] At this point, the tone of Mr. Whiskeyjack’s voice was one of resignation; which suggests to me that he would do whatever the police asked him or told him to do. This was in the context of Constable Pope having told Mr. Whiskeyjack that if he did not surrender his phone, the Constable would: “kick everybody outta the house right now and I seize the house and write a search warrant for it, and go in and get it”. [ 43 ] Given the confident and aggressive way Constable Pope said those words, Mr.

Whiskeyjack would have understood both that the police had that power and the Constable Pope would actually use it if faced with anything other than complete cooperation from Mr. Whiskeyjack, [ 44 ] The interaction continued at lines 904 – 909 of the transcript: POPE: Okay, and you know what you can go in and get it. I’m just gonna wait for my uh my partners to get here, okay? WHISKEYJACK: Yup. POPE: Is that fair, and you okay with sittin’ with us just until they get here? You’re okay with that? WHISKEYJACK: (Yawns) Yeah. [ 45 ] While the superficial implication of those words on their own is that Mr.

Whiskeyjack had a choice whether to remain in the police vehicle, in the context of Constable Pope’s previous words, Mr. Whiskeyjack would have understood he had no such choice. On the audio recording, one can hear the resignation in Mr. Whiskeyjack’s voice. [ 46 ] Later in the interaction, after Mr. Whiskeyjack’s son had brought the phone to Constable Pope, the officer asked Mr. Whiskeyjack for the code to unlock the phone and Mr. Whiskeyjack gave it to him. At that point, Mr. Whiskeyjack was still inside the police vehicle. Shortly after that Constable Pope said to Mr.

Whiskeyjack, “I’m pretty sure we’ll be coming back to talk to ya …” [ 47 ] At the end of the interaction on October 2, 2018, Mr. Whiskeyjack opened the door of the police vehicle and got out. [ 48 ] Based on the fact that the police said something to Mr. Whiskeyjack about it being better for him to talk to them, which is not recorded, based on the threatening words in relation to Mr. Whiskeyjack’s child being something Mr. Whiskeyjack could lose, and based on Constable Pope’s threat to kick everyone out of Mr. Whiskeyjack’s house, I am left with a reasonable doubt regarding whether Mr.

Whiskeyjack felt compelled by police threats and inducements to answer their questions. While Mr. Whiskeyjack’s statement near the beginning of the recorded conversation that he understood he did not have to say anything is relevant, it is not sufficient to establish beyond a reasonable doubt that what he said later in the statement was truly voluntary. Particularly after Constable Dunn’s implicit threat against Mr. Whiskeyjack’s child and Constable Pope’s explicit threat to kick everyone out of Mr. Whiskeyjack’s house, I have a reasonable doubt that Mr. Whiskeyjack felt compelled to cooperate with the police.

When Constable Pope demanded the password for Mr. Whiskeyjack’s phone, he immediately complied, without protest or any discussion. This is further evidence of police threats and inducements having overborne Mr. Whiskeyjack’s will. [ 49 ] The fact that Mr. Whiskeyjack opened the door of the police vehicle to get in and out of it on October 2, 2018, suggests he was not detained. The fact that he was in the confined space of the police vehicle with two armed police officers supports a conclusion that he was detained. The police officer’s words and tone are more significant factors. Constable Pope told Mr.

Whiskeyjack and his son that they would “have” Mr. Whiskeyjack for five more minutes. Using a commanding tone, Constable Pope asked Mr. Whiskeyjack to stay in the police vehicle. Constable Pope threatened to remove everyone from Mr. Whiskeyjack’s home if Mr. Whiskeyjack did not surrender his phone. Based on those statements by police, coupled with the earlier threat regarding Mr. Whiskeyjack’s son, I find that Mr. Whiskeyjack was psychologically detained by police during their interaction on October 2, 2018. This occurred, at the latest, when Mr.

Whiskeyack offered to go get his phone and Constable Pope replied “Well I wanna leave you here, okay”. 4. October 4, 2018 interaction [ 50 ] Near the end of the October 2, 2018 interaction, Constable Pope said “I’m pretty sure we’ll be coming back to talk to ya …”. The police did return to Mr. Whiskeyjack’s residence, two days later, on October 4, 2018. On that occasion, two different police officers came to Mr. Whiskeyjack’s home. Constable Kraal and Sergeant Kendall drove up in a different unmarked police vehicle. The entire interaction was audio recorded. The officers and Mr.

Whiskeyjack frequently spoke over each other which makes the recording and the transcript hard to follow. It was a brief interaction but it included the following exchange at lines 31 – 42 of the transcript: KRAAL: … I think when uh before, when you were talked to you were told like you didn’t have to talk to the police … WHISKEYJACK: Yeah. KRAAL: Right? And anything you did say to the police could be used as evidence in court … WHISKEYJACK: (Talk over) Yeah. KRAAL: … right? Um, so that still i-is the same, okay?

So you don’t have to talk to us right now, you like that’s that is totally up to you if you wanna talk to us. WHISKEYJACK: Oh I would like to actually go to a police station and talk. [ 51 ] After discussing Mr. Whiskeyjack’s preference to go to the police station the next day, the conversation continued as follows at lines 128 – 223 of the transcript:

KRAAL: So one of the things maybe before we stop t- like tonight or whatever, I would like to say, so there’s ah so the last time the police talked to you? WHISKEYJACK: Mm hm. KRAAL: Kay, there we had some, I don’t know how else to say it. But we have some concerns about it, okay? WHISKEYJACK: (Unintelligible) KRAAL: About the way that the statement was taken… WHISKEYJACK: Yeah (unintelligible). KRAAL: … kay? So what we’ve explained to you is your rights essentially, like as far as WHISKEYJACK: (Talk over) Yeah. KRAAL: … you don’t have to talk to us, right? WHISKEYJACK: Yeah. KRAAL: Like it’s up to you.

Um so not what we’d like to do is, make sure that there’s no, no issues with the w- statement we take from you now. WHISKEYJACK: Were you guys here too, like today? KRAAL: I wasn’t, no. KENDALL: No, no. WHISKEYJACK: No, okay. KRAAL: No, there was ah there was somebody … WHISKEYJACK: (Talk over – unintelligible) um that was that was … KRAAL: … that stopped in today. WHISKEYJACK: (Talk over) … the other people. KRAAL: I don’t think he was here to talk to you though … WHISKEYJACK: (Talk over) Yeah he was … KRAAL: … they were lookin’ for someone else, right? WHISKEYJACK: (Talk over) … for someone else, yeah.

KRAAL: Yeah, that’s right. WHISEKYJACK: Okay. (Buzzing sound) KRAAL: So … WHISKEYJACK: I thought it was you guys. KRAAL: No, it wasn’t us uh … KENDALL: No, wasn’t. KRAAL: …we were just asked to come and talk to you tonight because things are kinda … WHISKEYJACK: Yeah. KRAAL: … moving along right, in the investigation, so um … WHISKEYJACK: (Talk over) I understand that (unintelligible). KRAAL: … so I guess the point I’m trying to make about this statement we’d like to take from you is, the first one you you gave us like uh with Constable Pope? That’s who you talked to the other day. WHISKEYJACK: (Talk over) POPE?

KRAAL: POPE, there was a male and a female.

WHISKEYJACK: Yeah a male and a female. KRAAL: Okay, so w-… WHISKEYJACK: (Talk over) The Missing Persons ah … KRAAL: That’s right, so that that’s what they were … WHISKEYJACK: (Talk over) … Investigator and the Major Crimes Investig… KRAAL: (Talk over) That’s right, that’s exactly right. WHISKEYJACK: I was talkin’ about (unintelligible). KENDALL: Right. KRAAL: Yeah, so when you talked to both of them, they um, what we have is some concerns about whether or not if this goes to court down the road … WHISKEYJACK: Mm hm. KRAAL: … kay?

There’s some con- we have some concerns about whether or not that statement would be admissible in court. WHISKEYJACK: Yeah KRAAL: Kay? So what we’re … WHISKEYJACK: (Talk over – unintelligible) KRAAL: … what we wanna do is, separate the two, like make sure… WHISKEYJACK: Yeah. KRAAL … that there’s no connection between the two statements, kay? Do ya know so by doing … WHISKEYJACK: (Talk over – unintelligible) between the two. KRAAL: … in doing that … WHISKEYJACK: The two statements.

KENDALL: Jus-just basically we don’t, we’re not gonna reference the previous statement and you don’t have to mention anything that you said in that previous statement… WHISKEYJACK: Okay. KRAAL: Yeah. KENDALL: … okay? Let’s pretend that one kinda doesn’t… WHISKEYJACK: Okay. KRAAL: Yeah. KENDALL: … n-not that … WHISKEYJACK: (Talk over) That … KENDALL: … it doesn’t exist but, we’re not gonna talk about that one. WHISKEYJACK: Yeah. KENDALL: We’re just gonna start over fresh, if that makes any sense to you. KRAAL: Yeah. The biggest thing is that anything you said there… WHISKEYJACK: Yeah.

KRAAL: … in that statement, you don’t have to believe that that’s … KENDALL: It might, anything you said in that statement may not be deemed to be admissible if that makes any sense … WHISKEYJACK: Okay. KENDALL: … right?

KRAAL: (Talk over – unintelligible) KENDALL: Because whenever someone provides a statement to the police, um, you know it may or may not be admissible… WHISKEYJACK: Yeah. KENDALL: … right? I know this is somewhat confusing we’ll probably explain it to you again tomorrow… KRAAL: (Talk over) Yeah, exactly. WHISKEYJACK: I know about the court system. KENDALL: Yeah, yeah. KRAAL: Okay. WHISKEYJACK: (Talk over) And I know all about the statements and stuff. KENDALL: (Talk over) Yeah. KRAAL: (Talk over) Okay.

KENDALL: So what we’re saying is that anything that you may have said to a previous investigator’s … WHISKEYJACK: (Talk over) But yeah (unintelligible). KRAAL: … may not be inves – ah may not be admissible, so we’re not gonna reference any of that material, okay? WHISKEYJACK: (Talk over – unintelligible) KRAAL: Yeah. WHISKEYJACK: Yeah, I understand that. KRAAL: Okay. KENDALL: (Talk over) Okay, cool. [ 52 ] Given the continuous interruptions by each police officer and Mr. Whiskeyjack in that passage, I doubt that anything was communicated by the police officers to Mr. Whiskeyjack. At most, Mr.

Whiskeyjack may have understood that whatever he said on October 2, 2018 would be ignored and that they would cover the same ground again when he next spoke to the police. Constable Kraal and Sergeant Kendall said nothing about what Constables Pope and Dunn had said to Mr. Whiskeyjack on October 2, 2018. [ 53 ] Considering the potential indicators of a fresh start set out at para 103 of Beaver I note the following: • The police did not inform Mr. Whiskeyjack that his s. 10 Charter rights had been breached on October 2, 2018. • Constable Kraal provided Mr.

Whiskeyjack with the primary caution, but not the secondary caution, that his decision whether to speak to the police should not be influenced by anything he had said to police before or anything the police had said to him. • Given the passage of time between the October 2 and October 4 interactions, Mr. Whiskeyjack may have had a chance to consult counsel, but I have no evidence that he did so. On the contrary, the police seized Mr.

Whiskeyjack’s only cell phone (which did not have service because he had not paid his bill) during the October 2, 2018 interaction, and he no longer had a vehicle, according to his statements on October 4 and 5, so his ability to consult counsel was at least somewhat curtailed. • Mr. Whiskeyjack was released from detention on October 2, before his interaction with police on October 4, 2018. [ 54 ] The fact that the police officers who came to talk to Mr. Whiskeyjack on October 4 were not the same ones he had talked to on October 2 and the fact that Mr.

Whiskeyjack was not detained between the two encounters, tend to break the connection between the two interactions. On the other hand, both the police officers and Mr. Whiskeyjack referred to his October 2 statement during the brief interaction on October 4, which made a connection back to the October 2, 2018 interaction. Most significantly, neither officer told Mr.

Whiskeyjack to ignore any threats or inducements Constables Pope and Dunn had made on October 2, 2018, nor did they say that whatever Constables Pope and Dunn had said about threats or inducements was incorrect. [ 55 ] I find that there was not a fresh start before the October 4, 2018 interaction and that the Crown has failed to prove that any threats or inducements made on October 2, 2018 did not continue to operate on October 4, 2018. I am left with a reasonable doubt that threats and inducements were made on October 2, 2018 which continued to bear on Mr.

Whiskeyjack’s mind on October 4, 2018. [ 56 ] In oral submissions Mr. Whiskeyjack’s counsel advised that she was not arguing that Mr. Whiskey was detained on October 4 or 5, 2018, so I will not address the Charter breach issue with respect to Mr. Whiskeyjack’s interactions with police on October 4 and 5, 2018. 5. October 5, 2018 interaction

[ 57 ] As was discussed on October 4, 2018, on October 5, 2018, Constable Kraal and Sergeant Kendall returned to Mr. Whiskeyjack’s home. Although on October 4 the three men had discussed going to a police station, at Mr. Whiskeyjack’s request, on October 5 they did not go to a police station because Mr. Whiskeyjack said he preferred to speak to the officers in their vehicle outside his home. [ 58 ] There are temporal, physical and contextual connections among the October 2, 4 and 5 interviews. They occurred within a four-day period. They all occurred in a police vehicle outside Mr. Whiskeyjack’s home.

The police told Mr. Whiskeyjack during the first interview that they would be coming back, which they did on October 4. During the October 4 interview, the officers and Mr. Whiskeyjack talked about the October 2 interview and they discussed and planned the October 5, 2018 interview, including a planned trip to the police station. The October 5, 2018 interview is the result of the planning on October 4, modified to remove the trip to the police station.

The same police officers were involved in the October 4 and 5 interviews. [ 59 ] Near the beginning of the October 5 interaction, the following exchange takes place at lines 56 – 76: KRAAL: And uh, and then the other thing is that uh, you don’t have to come and talk with us, right? Like this is you’re not under arrest, you’re not uh … WHISKEYJACK: Okay good. KRAAL: anything like that. WHISKEYJACK: (Talk over) isn’t it like just like j- might as well just do it here instead of going there and comin’ back, right? KRAAL: You wanna just sit here? WHISKEYJACK: Yeah (unintelligible). KRAAL: Okay, okay yeah.

WHISKEYJACK: (Talk over) Alright ‘cause I last night I thought it would be a good idea to go there but … KENDALL: Yeah. WHISKEYJACK: … I kinda thought about it. KRAAL: Okay, and that’s fair, that’s … WHISKEYJACK: Yeah. KRAAL: … that’s completely up to you, right? We just we don’t care where it happens, as long as we get a chance to talk to you, that’s … WHISKEYJACK: Yeah. KRAAL: … more what I’m interested, right?

WHISKEYJACK: Yeah [ 60 ] There is some discussion about the advantages of going to a police station and then the following exchange takes place at lines 88 to 109: KRAAL: So the other uh, the other thing I wanna remind you of is that we are investigating the murder, right of uh … WHISKEYJACK: Yeah I … KRAAL: … Lindsay. WHISKEYJACK: Yeah. KRAAL: Okay. And um, and so anything that you do say to us right now could be used as evidence in court. (Tone) WHISKEYJACK: Okay. KRAAL: Okay? That could be against you, or it could be against someone else as well too, right? So that’s just I wanna make … WHISKEYJACK: Alright.

KRAAL: … that clear, okay? WHISKEYJACK: Yeah. KRAAL: Uh so you understand that? WHISKEYJACK: Yeah.

KRAAL: Okay. Um, and then again like if you wanna if you wanna leave at any time you are free to go, kay? Like the door’s open, we’re just in this truck here, um. Okay? WHISKEYJACK: Yeah. KRAAL: Y-you understand all that stuf? WHISKEYJACK: (Talk over – unintelligible) yes I do. [ 61 ] The interaction continued for nearly an hour, during which Mr.

Whiskeyjack provided information about what he, Jena Hunter, Jeremy Steinhauer and Lindsay Jackson did during and following an evening of drinking in September 2018. [ 62 ] The indicators regarding a fresh start before the October 5 interview are nearly identical to the situation before the October 4 interview: • The police did not inform Mr. Whiskeyjack that his s. 10 Charter rights had been breached on October 2, 2018. • Constable Kraal provided Mr.

Whiskeyjack with the primary caution, but not the secondary caution, that his decision whether to speak to the police should not be influenced by anything he had said to police before or anything the police had said to him. • Given the passage of time between the October 2 and October 5 interactions, Mr. Whiskeyjack may have had a chance to consult counsel, but I have no evidence that he did so. He had no cell phone and no vehicle to help him contact counsel. • Mr.

Whiskeyjack was released from detention on October 2, before his interaction with police on October 5, 2018. [ 63 ] While Constable Kraal and Sergeant Kendall refrained from making any reference to the previous interactions between the police and Mr. Whiskeyjack, which would support a finding of a fresh start, the most significant fact is that neither officer told Mr.

Whiskeyjack to ignore any threats or inducements Constables Pope and Dunn had made on October 2, nor did they say that whatever Constables Pope and Dunn had said about that was incorrect. [ 64 ] Consequently, I find that there was not a fresh start before the October 5, 2018 interaction and that the Crown has failed to prove that any threats or inducements made on October 2, 2018 did not continue to operate on October 5, 2018. I am left with a reasonable doubt that threats and inducements made on October 2, 2018 continued to bear on Mr. Whiskeyjack’s mind on October 5, 2018. 6.

Conclusion [ 65 ] The Crown has failed to prove what Constable Pope said to Mr. Whiskeyjack during the unrecorded interaction on October 2, 2018 about it being better for Mr. Whiskeyjack to come clean. Constable Dunn’s statements and Constable Pope’s questions about Mr. Whiskeyjack’s seven-year-old son created an implicit threat that the son could be taken away. Constable Pope explicitly threatened to throw everyone out of Mr. Whiskeyjack’s home. These factors create a reasonable doubt that Mr. Whiskeyjack’s statements on October 2, 2018 were voluntary.

The police did not make a fresh start on October 4 or 5, 2018 for several reasons, including their failure to provide the secondary caution. Given the temporal, physical and contextual connections among the October 2, 2018 interaction and the subsequent interactions on October 4 and 5, 2018, and the absence of a fresh start, I am left with a reasonable doubt that Mr. Whiskeyjack’s statements on October 4 and 5, 2018 were voluntary. Consequently, Mr. Whiskeyjack’s statements during those three interactions in October 2018 are not admissible in this trial. [ 66 ] Mr.

Whiskeyjack was detained on October 2, 2018, at the latest when Constable Pope told him he could not go into his house to retrieve his cell phone. The police did not provide Mr. Whiskeyjack with his s. 10 rights upon detention. At the request of counsel for both parties, I am not addressing remedies for the Charter breach in these reasons. If the parties wish to address that, they may do so at a future date. Heard on January 9 – 13, 2013. Dated at the City of Edmonton, Alberta this 23rd day of February, 2023. G.S. Dunlop J.C.K.B.A. Appearances:

Dallas Sopko and Elizabeth Cunningham Edmonton Rural and Regional Response Office for the Crown Stacey M. Purser and Cateline Joly Purser Law for the Accused