R. v. Soulier, 2020 MBPC 40

CITATION: R. v. Soulier , 2020 MBPC 40 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) M. Armstrong for the Crown ) - and - ) ) Winston Soulier ) ) M. Walker for the Accused Accused ) ) Reasons for Decision ) Delivered: September 15, 2020 PUBLICATION BAN : Pursuant to

section 486.4: No information that could identify the victim in this matter may be published, broadcast or transmitted in any way. C.A. DEVINE, P.J. Introduction [ 1 ] This is my decision in a voir dire about whether the Crown has proven beyond a reasonable doubt that the statement Mr. Soulier provided to the police was voluntary. [ 2 ] The defence argued that Mr. Soulier’s will was overborne by the combination of an inducement provided by the interviewing officer and an air of oppression created by the arresting officers in the context of everything that occurred the morning of his arrest, and in Mr.

Soulier’s particular circumstances. Mr. Soulier has a diagnosed severe language disorder. I accepted expert evidence from psychologist Dr. Del Ducharme about Mr. Soulier’s cognitive impairments, difficulties with receptive and expressive communication and deficient working memory, in previous decisions R. v. Soulier , 2020 MBPC 4 and R. v. Soulier , 2020 MBPC 39 . Moreover, Mr. Soulier is young; he had turned 18 years old only three months before his arrest. He is a northern Indigenous person.

He grew up in South Indian Lake, a remote community north of Gillam and 14 hours north of Winnipeg, and has lived his whole life in the North, other than for the school year at the time of the offence, where he attended a school for Indigenous young people, Children of the Earth. [ 3 ] He had never been arrested before. [ 4 ] I heard evidence from several police officers involved in the sexual assault investigation and arrest of Mr. Soulier, from Mr. Soulier, and from the expert witness, Dr. Ducharme. [ 5 ] The defence argued that an atmosphere of oppression was created by the arresting officers who grabbed Mr.

Soulier’s throat when he attempted to obtain his identification, who teased and mocked him in the police car when he was crying, and that the handcuffs hurt his wrists and left marks on them. The defence also argued that Mr. Soulier was induced to speak in order to secure his release, using a parable or analogy, the purpose for which Mr. Soulier did not understand.

He did not understand the analogy except that he must talk, and did not believe that Detective Kendel would actually allow him to go home as he had promised, unless he told the police officer what he wanted to hear. [ 6 ] The Crown argued that the statement was voluntary. He asked me to prefer the evidence of the arresting officers that there was no inappropriate action taken by them. He argued that there was certainly no atmosphere of oppression created by Detective Kendel. Most importantly, the Crown argued that Mr.

Soulier’s language disorder was not apparent to Detective Kendel and it is not apparent in reviewing his interview that he had any difficulty understanding Detective Kendel. The Crown argued that the impugned analogy used by the officer was an appropriate example to use, to allow Mr. Soulier to clear any suspicions about his involvement in a sexual assault and it is clear that Mr. Soulier understood that. It was not an inducement. The Language Disorder and Mr. Soulier’s Capacity to Understand and Communicate [ 7 ] I admitted the expert opinion evidence of psychologist Dr. Dell Ducharme, to testify about Mr.

Soulier’s language disorder and how that affects his ability to communicate. [ 8 ] In 2015 Mr. Soulier was administered tests by Frontier School Division where he attended school in Cranberry Portage. He was assessed for intellectual, academic and adaptive functioning. Mr. Soulier’s intellectual functioning is low, with an IQ of 70, placing him in the borderline range. [ 9 ] He had and continues to have noticeable difficulty with word retrieval.

[ 10 ] The results of the testing included findings of extremely low functioning in the verbal areas of intellectual functioning and serious deficits in the area of working memory. [ 11 ] His verbal comprehension, tested in 2015 and again in 2019 is “extremely low.” He was diagnosed with a severe language disorder. Dr. Ducharme’s evidence was that the language disorder is static across time; Mr. Soulier had a language disorder at the time of the arrest by the police, at the time of this trial, and he still has it today. [ 12 ] He testified that Mr. Soulier understands language at the level of a 10-year-old.

He testified that although 10-year-olds can engage in general conversation, if the language becomes “deeper”, or emotion is added to the mix (because emotions impact on how we receive and express information) it goes beyond the capability of the average 10-year-old. Dr. Ducharme explained that it is approximately at the age of 10 that humans’ higher reasoning skills, or metacognitive skills, start to develop.

These are skills such as reasoning, judgement, problem-solving, predicting, and how one integrates and stores information which allow for a more sophisticated and well-developed ability to understand concepts. These skills are not developed in Mr. Soulier. [ 13 ] As a result of lacking these metacognitive skills, Mr. Soulier has a hard time understanding metaphors and allegories with underlying meanings, unless they are expressed at his level of conceptual language, which generally means they would have to be expressed in concrete language at his level of vocabulary. [ 14 ] In addition to the test results, Dr.

Ducharme was able to observe that Mr. Soulier has difficulty in expressing himself. When he experiences stress, his language disorder is worse. [ 15 ] Dr. Ducharme also observed Mr. Soulier’s behaviour during the police interview, of crying, curling up in a ball and banging his head on the wall, as young, regressive behaviour, taking him to a lower developmental age. [ 16 ] Dr. Ducharme testified about Detective Kendel’s use of the analogy of the long-distance truck driver in the interview. In attempting to encourage Mr.

Soulier to talk after receiving advice from his lawyer to exercise his right to silence, Detective Kendel told Mr. Soulier the story of a man who had been accused of breaking into his ex-wife’s house and raping her. After the man’s arrest and during the police interview, he refused to answer questions. He was taken to jail. Two weeks later, the police learned from the trucker’s employer that the man had been in Texas at the time of the alleged offence. He was still in jail, despite [evidently] being innocent. Dr. Ducharme testified that Mr. Soulier did not understand the analogy. [ 17 ] Dr.

Ducharme testified that the manner in which Detective Kendel communicated with Mr. Soulier affected his understanding of what was said to him. Detective Kendel was not speaking at a 10-year-old level. [ 18 ] Dr. Ducharme referred to the prescriptive suggestions in the 2015 assessment report done by Dr. Rohde, for examples of how better comprehension can be achieved. Dr. Ducharme testified that he agreed with them and that they are standard in the field. Some of the strategies from Dr.

Rohde’s report include semantic mapping, word banks, word sorting, interspersing verbal information with visual cues and pre-teaching by “doing” rather than saying. [ 19 ] I did not admit Dr. Ducharme’s evidence providing his opinion about whether Mr. Soulier understood the interviewer and whether the information was reliable. I did however, allow him to provide an opinion about Mr.

Soulier’s lexicon, his receptive and expressive communication skills, his tendency to pretend to understand when he does not, and his inability to understand more complex forms of language, such as analogies, including the example of the long-distance truck driver analogy which was used in the police interview. [ 20 ] Mr. Soulier testified about his language disorder and how he has not yet finished Grade 12, he has had education assistants to help him in school, he has difficulty reading and how he has his girlfriend or her mother read his mail to him because he does not read or comprehend it otherwise.

The test results from a 2015 psychological assessment done by school division psychologist Dr. Clemente Rohde, placed Mr. Soulier’s reading skills at a Grade 4 level. They did not improve by 2019 when Dr. Ducharme tested him. [ 21 ] Mr. Soulier’s evidence about how the language disorder affects him outside the school setting is as follows: Q Okay. And does your disability affect anything other than school work? A Public, I guess. Q Okay. What do you mean by that, public? A Like, sometimes I don’t know how to talk for myself. Q Okay. Sometimes you don’t know how to talk for yourself? A Yeah. Q Okay.

Can you tell the Court a bit more about that, how you -- how you don’t know how to talk for yourself? A I might say something wrong, or something differently.

Q Okay. And -- and do you know why you say something wrong or different? A I answer too fast. . . . Q Can -- can you give an example when you -- an example of when you answered something wrong? A Not good at giving examples either. The Arrest [ 22 ] Mr. Soulier was arrested at around 3:00 p.m. on March 18, 2018, for a sexual assault that is alleged to have occurred in the early hours of that morning at the apartment he shared with his girlfriend and her sister. [ 23 ] Mr.

Soulier testified that when the police arrested him, they requested his wallet, in his mind for his “ID’s” and when he tried to go get it for them, one of the officers grabbed the front of his throat to stop him. He did not remember which of the two officers did this, although they were quite different in height and shape. He testified that the officer grabbed his throat only for a couple of seconds and it was not that hard – there were no red marks, bruising or any injury. Mr. Soulier testified that he told the officer to “just kill me already,” because he was very upset.

The arresting officers both denied that either of them put their hands on his throat and did not recall him saying anything like “just kill me already.” [ 24 ] In cross-examination, Mr. Soulier was confronted with his previous testimony from the first trial [1] where he testified that the officer held his throat for about five seconds, he was unable to breathe because the officer was squeezing his neck, and there was a little red mark and a couple of bruises.

It is not clear from the cross examination whether he was referring to red marks on his wrist or neck. [ 25 ] In the cross examination in this voir dire , Mr. Soulier testified that he had not told the truth about the officer squeezing his neck and causing injuries. He tried to explain in his testimony that he just answered too fast. Q. She asked, And then after that, how long does the officer have his hand on your neck? And you responded, Like, probably five seconds I’d say. A I just answered too fast. Q Sorry? A I only answered too fast there. Q You answered too fast? A Yeah. Q Okay.

A Because it could have been only a couple seconds. Q Okay. So, five -- that just sort of came to your mind, but it could have been just a couple seconds? A Yeah. . . . Q Ms. Mitchell (sic) asked, Are you able to breathe? And you said, No. A I answered too fast again.

Q Okay. You answered too fast? A Yeah. Q Because the truth is you were able to breathe? A Yeah. Q So, what you told the Court on that day that no you couldn’t breathe, that wasn’t true? A No. Q Then Ms. Mitchell asked you, So, he’s squeezing your neck? And you said, Yeah. A Not really, no. . . . Q MR. ARMSTRONG: Not really, that’s not what you said to Ms. Mitchell, or not really, he didn’t squeeze your neck? A Not really, he didn’t squeeze my neck. Q So, when you told Ms. Mitchell, Yeah, he was squeezing your neck, that wasn’t true? A No. Q Ms. Mitchell’s next question, Okay.

Did you have any injuries or bruising or anything to your neck after? You said, I had a little red mark here, a couple bruises, and then the judge that day spoke up because you were gesturing. And the judge said, He’s pointing to the neck. And you finished your answer and said, Marks on my wrist. A There were no marks. Q Sorry? A There weren’t really marks. Q There were no marks on your neck? A No. Q There wasn’t a little red mark on your neck? A No. Q There weren’t any bruises? A No. Q So, what you told to Court that day, that wasn’t true? A No. That wasn’t true.

. . . Q MR. ARMSTRONG: Mr. Soulier, why did you tell the Court something that wasn’t true on January 30th? A I don’t know. I just answered too quickly. Q Did you want to make the officers seem worse than they were? A (INDISCERNIBLE). Q But you wanted the Court to hear that you had injuries on your neck when you didn’t? A Say that again? Q You told the judge that day you had injuries on your neck when you didn’t? A Yeah. [ 26 ] The police officers involved in his arrest denied that this occurred, but Constable Davis did describe Mr.

Soulier as “visibly upset.” [ 27 ] It was suggested to Constable Davis that at the bottom of the stairway, he or his partner asked Mr. Soulier for ID. Mr. Soulier said it was in his wallet and he said he’d go get it. Constable Davis testified that he did not remember asking Mr. Soulier for his ID and he did not remember Mr. Soulier telling him it was in his wallet and that he would go and get it and then he made a move forward to get the wallet. He did not recall any of that. [ 28 ] Mr.

Soulier’s evidence with respect to the ID is consistent with the testimony of Detective Gill, one of the other officers at the scene who testified that the police were looking for Mr. Soulier’s wallet or ID and that she requested the ID from his girlfriend Jasmine who provided it, and then she gave the ID to Constables Davis and Mederski outside. She thinks they were already in the police vehicle. [ 29 ] When it was suggested to Constable Davis that he or Constable Mederski grabbed the Accused’s neck, Constable Davis testified, “No.

At no time was there any force.” [ 30 ] Constable Mederski testified “That didn’t happen. I would recall that.” [ 31 ] When it was suggested to both officers that in response Mr. Soulier said, “Why don’t you kill me already?” both testified that they did not remember that. [ 32 ] There were issues with respect to the officer’s memories, particularly Constable Mederski, who did not have notes, because he was the driver that day. Both officers testified in detail about the other officer applying the hand cuffs. Neither of them remembered requesting or how they obtained Mr. Soulier’s ID.

Neither of them remembered any details leading up the allegation that one of them placed his hand on Mr. Soulier’s throat. Throughout his testimony, Constable Mederski used language like “I would be”, “I believe”, “I can’t be too sure”, “I can’t remember”, “It was common practice”, and “From what I recall.” [ 33 ] I infer from the evidence I heard that although Mr. Soulier was trying to be helpful to get his ID for the officers, the police officers likely thought he was trying to leave. In those circumstances, I find that it is possible that one of the officer put his hand out against Mr.

Soulier’s throat to stop him. Mr. Soulier’s evidence has at least raised a doubt in my mind that it could have occurred. Mr. Soulier admitted that he had exaggerated the extent of the throat grab at the first trial. He said that he sometimes answers too fast. I accept this. It is consistent with the evidence of Dr. Ducharme who testified that Mr. Soulier’s language disorder places his receptive and expressive language skills at the level of a 10 year old. He has difficulty expressing himself. When emotion is added to the scenario, this adds to the communication difficulties.

He testified that his language disorder manifests in sometimes answering questions too quickly. [ 34 ] I accept that Mr. Soulier’s language disorder would contribute to him having difficulty expressing himself when testifying. At the first trial, it would have been his first time testifying. At the voir dire in this trial, he testified for the second time, he was older, and he had the benefit of watching several witnesses testify before he did. I accept that he was more comfortable at this trial than the first one. [ 35 ] The fact that a police officer’s hand was on his neck also helps to explain Mr.

Soulier’s testimony that he said “just kill me already.” I accept as a fact that he said this to the officers. His testimony has been consistent throughout. Neither of the officers could remember him saying that, but neither did they deny that he said it, and I have already commented on some of the difficulties they had with their memories. [ 36 ] Mr. Soulier also testified that in the cruiser car he was upset and crying and the police teased and mocked him, stating to the effect that he was 18 years old already, an adult and he should grow up. Although Constable Davis testified that Mr. Soulier was upset,

he denied that this occurred. Constable Mederski did not remember Mr. Soulier crying on the way to Headquarters, nor anyone saying, “Grow up” to the Accused. [ 37 ] I find as a fact that the police officers said these things to Mr. Soulier. They are very specific words. He admitted in his testimony they said this to him because he was crying. He was consistent throughout his interview with Detective Kendel and his testimony that the police teased him. [ 38 ] Mr. Soulier filed photographs of his wrists that were taken in the day or two after his arrest by his girlfriend.

He had red marks on his wrists that he testified were as a result of the handcuffs on his hands. Several officers were shown the photographs. Some testified that the marks were consistent with handcuffs and some testified that they were not. Both arresting officers testified that the other had applied the handcuffs, yet they were certain that the cuffs were not too tight.

Constable Davis initially testified that the cuffs could not leave marks like the ones shown in the photographs, but then testified that it is possible that they could. [ 39 ] Constable Mederski testified that the marks could be consistent with the handcuffs. [ 40 ] I accept that the marks on Mr. Soulier’s wrists were made by the handcuffs, but not necessarily because they had been placed too tightly on his wrists.

I heard evidence from one of the officers that when the person sits in the police car, sometimes their body weight can create extra pressure and the cuffs can leave marks. [ 41 ] Constable Davis testified that although the Accused signed the Prisoner Log sheet with only his first name “Winston”, and no last name, he still was not satisfied that there was any problem with Mr. Soulier’s language abilities. He did not ask if the young man had any learning problems or disabilities. He did not ask if he could read or write. The Police Statement [ 42 ] Mr.

Soulier was taken into the interview room at police Headquarters by Detective Sgt. Dudek, the officer in charge, at 3:50 p.m. He almost immediately asked for something warm, because he was cold. Detective Sargent Dudek said she would see about a blanket. Approximately one hour later, the interviewer, Detective Kendel, came into the room. Mr. Soulier had not been supplied with a blanket. Detective Kendel reviewed the interview process and asked some preliminary questions, to which Mr. Soulier generally responded to by nodding his head. When Detective Kendel asked if he had any questions, Mr.

Soulier asked, “Can I have something warmer, please?” Detective Kendel said he would see about a blanket. More time passed, as he spoke to legal counsel, then Detective Kendel required that he remove his underwear in the interview room. The underwear were seized by the police as evidence. After he removed his underwear and put his sweatpants back on, he asked for a blanket again. It was by then approximately 5:15 p.m. Mr. Soulier was taken to the Identification Unit for photographing and fingerprints and when they returned at 5:27 p.m. he was given a blanket. [ 43 ] Other than being cold, Mr.

Soulier had his other physical needs handled respectfully and courteously. Patrol Sargent Dudek and Detective Kendel told him he could ask for food, something to drink, go to the washroom and use the button in the room to alert officers if no one was in the room with him. He was provided food and drink. There is no allegation that the detectives were abusive in any way to Mr. Soulier. [ 44 ] Nonetheless, he was cold, tired and obviously did not want to be there, and as the hours went by, his discomfort gave way to distress. [ 45 ] Detective Kendel was aware that Mr.

Soulier was only 18 years of age, with a birthday only three months before. He was aware that Mr. Soulier had never been arrested before and that he was a young Indigenous man from the North, with little experience in the city. [ 46 ] Detective Kendel used language beyond the comprehension of this young man with a severe language disorder. [ 47 ] The defence says that the statement was not voluntary because Mr. Soulier did not understand all the questions posed by Detective Kendel, and his answers were not necessarily accurate, because of his language disorder.

Defence counsel argued that the truck driver analogy that Detective Kendel used in the interview was used as an inducement for him to speak, even though he indicated several times he did not want to say anything on the advice of legal counsel. Alternatively, he perceived the analogy as an inducement or promise that if he spoke, he could leave, or a threat that if he did not speak, he would go to jail. In fact, Detective Kendel told Mr. Soulier he would be released. But when Mr. Soulier was not being released, and he was being asked over and over again about what the complainant had told the officers, Mr.

Soulier tried to tailor his answers to get the result he wanted, which was to go home. [ 48 ] I noted several times Detective Kendel used metaphors, literary references, allegories and higher language lexicon which clearly Mr. Soulier did not grasp. Early on in the interview, learning that Mr. Soulier’s girlfriend was 17, he said, “You’re a couple of Romeo and Juliets, eh?” He also used the phrase “So I don’t want you to be married to the times.”(at 46) [ 49 ] Shortly after that, he told Mr. Soulier that if he was innocent of the allegation, he should tell him. He told the story of Thomas the truck driver.

The man was accused of raping his former wife. He refused to answer questions asked by the police, asserting his right to silence. As a result, he was taken to the Winnipeg Remand Centre and spent two weeks there before the police discovered he had an alibi; he was in Texas driving truck at the time of the alleged offence. [ 50 ] Detective Kendel ended the story, saying, Detective Kendel (DK): And he sits there and he says, “I’d really rather not say anything.” And because of the seriousness of the crime we had no choice but to send him to the Remand Centre for the night.

So instead of going home that day he went to the Remand Centre. Mr. Soulier (WS): Am I going home?

[ 51 ] And although Detective Kendel assured Mr. Soulier that he would go home that night, he went on to say: DK I’m not trying to play any games with you. But this man ended up going to the Remand Centre. So he goes to the Remand Centre and can’t get bail for two weeks, so he sits in jail, a man who’s never been in jail his entire life, never been in trouble with the law his entire life, is going through an ugly divorce and finds himself sitting in the Remand Centre for two weeks. [ 52 ] Mr.

Soulier seemed to have a grasp of providing some alibi evidence – he told Detective Kendel he was with his girlfriend, he was not that drunk and that he was asleep at the time the complainant alleged he sexually assaulted her. [ 53 ] After some time of Detective Kendel pressing him, Mr. Soulier said: I’m trying to tell the whole story, but I don’t know. That’s cause you always like switch off this - - every time I tell the story you always switch off, like switch - - I tried and I tried already. And you didn’t. I don’t’ know what else to say.

And that’s all I know. [ 54 ] It is clear in reviewing his statement, that his grasp of the truck driver analogy is tenuous. [ 55 ] Mr. Soulier repeatedly denied sexually assaulting the complainant. Detective Kendel did not stop questioning him and did not let him go home. Eventually, Mr. Soulier became overwrought. He was pacing, crying, beating on the floor with his fists, banging his head on the wall and appeared to be in excruciating distress. Mr. Soulier was crying and, saying, WS I am (being honest) I don’t want to talk no more. Just talk to yourself. I think I’m . . . I want to go home please.

I want to fucking go home. Fuck man. [ 56 ] A little later, he was lying on the floor, hugging himself. [ 57 ] He kept repeating, “No comment” and that he did not want to say anything. Detective Kendel’s response to Mr. Soulier’s invocation of his right to silence was: DK Do you want to make the same mistake Thomas did and sit in that chair and say nothing and find himself in the Remand Centre for two weeks for a crime he didn’t commit? WS No. (Emphasis added.) [ 58 ] Detective Kendel continued to press. Mr. Soulier said, WS: No comment. I don’t want to answer those. I want to go home. DK: I know you do, Winston.

WS: What would happen if I plead guilty? [ 59 ] Detective Kendel explained the court process. It is very unlikely Mr. Soulier understood him. Then he said, DK: Winston, these are the hard questions that you’re going to need to be able to answer. WS: I’ll just plead guilty to it then. Fuck it. [ 60 ] He was clearly looking for a way to leave and go home. [ 61 ] Dr. Ducharme’s report at page 11 states: . . . Expressively, he will not respond effectively to questions, and due to poor working memory skills will struggle organizing his thoughts.

He may then become easily overwhelmed, with same worsening, dependent on how emotionally activated he is; that is, the more emotional one is, the less ability one has to receive and to produce information. [ 62 ] The interview itself demonstrated that after Mr. Soulier expressed this idea of “pleading guilty,” he was still in custody and was still being pressed by Detective Kendel. Mr. Soulier became increasingly distressed, and mentally and emotionally overwhelmed. He was crying, screaming that he was going crazy and was going to die, banging his fists on the floor and banging his head on the wall.

He was in obvious and excruciating psychological distress. An excerpt from the interview demonstrates this: (Mr. Soulier is crying. He has just told the detective something consistent with what the detective told him the complainant has said): WS: Can I go now? I want to go home. I’m going to go crazy, fuck. Please. DK: Don’t go crazy. WS: Please just let me go home and see my girlfriend. I want to fucking hug her or something. I want her. (Bangs head on wall.) DK: No, please don’t bang your head.

WS: I just want to go home. DK: Winston… WS: Fucking (inaudible. Punching wall) DK: Winston, ok, I need you to just dial it back, okay? WS: (Crying.) DK: My concern is if I start having concerns about your ability to stay safe… WS: I don’t want to be in jail. DK: Ok. I know, I know. I understand. WS: I don’t want to go to jail, fuck. I don’t want to go to jail. (Lying on floor.) You said you were going to take me. I want to go home. Please… (This continues. And then) WS: I want to go… Please take me. DK: Okay, my friend. Come on. WS: Please take me.

DK: All right. (Hugs accused.) [63] Detective Kendel does not take the crying Mr. Soulier home after hugging him and apparently agreeing to take him home. Heleft the room to get more information about the complainant’s version of events and returned to confront Mr. Soulier with thatinformation, and continued the interview. [64] But Mr. Soulier was overwhelmed and his will was overborne by that point. [65] The information from Mr. Soulier becomes more and more difficult to understand. He appears to confess to certain things,then denies them. He is crying and wanting to go home.

The Law and Application of the Law [66] The law respecting admissibility of statements given to the police is governed by the Supreme Court of Canada case of R. v.Oickle, 2000 SCC 38 , [2000] 2 SCR 3. The harm that the law is intended to prevent is obtaining confessions that are false, thatin turn can lead to wrongful convictions. As Justice Iacobucci stated in Oickle at para. 36, “One of the overriding concerns of thecriminal justice system is that the innocent must not be convicted.” And, . . . One of the predominant reasons for this concern is that involuntary confessions are more likely to be unreliable.

The confessions ruleshould recognize which interrogation techniques commonly produce false confessions so as to avoid miscarriages of justice.(at para. 32) [67] A second concern is to ensure proper police action and the fairness of the criminal justice system. [68] The Crown has the onus of proving beyond a reasonable doubt that any comments or statements made by an accused person tothe police were made voluntarily.

All the circumstances surrounding the making of the statement must be considered, including whetherthe police made any threats, promises or inducements to the accused person, whether the statement was made in an atmosphere ofoppression, whether the accused had an operating mind when they made the statement and whether the police used trickery to obtain thestatement. If the accused person’s free will is overborne by these or other factors, the statement is not admissible (Oickle, at para. 1; R.v.

Azizi, 2016 MBQB 195 at para. 14). [69] The circumstances surrounding the taking of the statement include the particular circumstances of the accused person. There isa heightened danger of statements being unreliable where the accused person is particularly vulnerable.

False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especiallyvulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rareinstances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of theinterrogation.(W. S. White, "False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions" (1997), 32 Harv.C.R.-C.L. L. Rev. 105 (cited in Oickle, at para. 42)(Emphasis added.) [70] Mr.

Soulier was vulnerable when he was arrested and questioned by the police, by reason of his youth, his Indigeneity, being anorthern young Indigenous man who had lived his entire life in the remote north, because of his severe language disorder and by reasonof the fact he had never been arrested before and was now under arrest for a sexual assault. [71] Mr. Soulier was particularly vulnerable to the handling of the arresting officers who pushed his throat, mocked him when hestarted crying, and applied handcuffs which left marks on his wrists. He was a polite teenager from the north who had never beenarrested.

His desire to help by getting his “ID’s” as he put it, was met with force. His distress about that and being arrested for a sexualassault was met with scorn.

[ 72 ] He was particularly vulnerable to being held in custody in a large police building, locked in a room, being cold, having his underwear seized, being photographed and fingerprinted, and then being questioned by a skilled detective for six hours. [ 73 ] Detective Kendel played “good cop” with Mr. Soulier throughout, no doubt a relief from the officers who had treated Mr. Soulier such that he said “Just kill me already.” Detective Kendel was courteous and non-violent to Mr. Soulier throughout the interview. Mr.

Soulier was provided with food and water and allowed to go to the bathroom as needed. [ 74 ] But Detective Kendell induced and threatened Mr. Soulier to talk. The thinly-veiled threat was using the repeated example of the long distance truck driver who foolishly remained silent and was therefore taken to jail.

The threat is most explicit when Detective Kendel stated, “Do you want to make the same mistake Thomas did and sit in that chair and say nothing and find himself in the Remand Centre for two weeks for a crime he didn’t commit?” [ 75 ] Even though the threat is not a threat of violence, nor did Detective Kendel raise his voice, “threats come in all shapes and sizes” as Justice Iacobucci stated in Oickle . This more insidious and facially innocuous type of threat is just as dangerous in its result. The full discussion about threats from Oickle is apropos to this case: Threats come in all shapes and sizes.

Among the most common are words to the effect that "it would be better" to tell, implying thereby that dire consequences might flow from a refusal to talk . Maule J. recognized this fact, and said that "there can be no doubt that such words, if spoken by a competent person, have been held to exclude a confession at least 500 times" (R. v. Garner (1848), 3 Cox C.C. 175, at p. 177). Courts have accordingly excluded confessions made in response to police suggestions that it would be better if they confessed. In his reasons, Freedman C.J.M. referred to a passage from an

article he had written earlier, "Admissions and Confessions", published in Salhany and Carter, eds., Studies in Canadian Criminal Evidence (1972), at pp. 110-11, where he stated the following: Risky though it be for a policeman to use words like "better tell us everything"-- and an experienced and conscientious officer will shun them like the plague -- their consequences will not always be fatal. There have been some instances where words of that type have been employed, and yet a confession following thereon has been admitted.

That may occur when the court is satisfied that the offending words, potentially perilous though they be, did not in fact induce the accused to speak. In other words, he would have confessed in any event, the court's enquiry on the point establishing that his statement was indeed voluntarily made. It is scarcely necessary to emphasize, however, that cases of the kind just mentioned will confront a prosecuting counsel with special difficulty.

For words like "better tell the truth" carry the mark of an inducement on their very face, and a resultant confession may well find itself battling against the stream . (Emphasis added.)(at paras. 53-55) [ 76 ] The inducement was to go home. It is very clear that Mr. Soulier believed that if he told Detective Kendel what he wanted to hear he would be able to leave. The message from Detective Kendel is both objectively and subjectively that Mr.

Soulier should talk and should tell him that he sexually assaulted the complainant. [ 77 ] He was not allowed to leave until Detective Kendel believed he obtained the confession he sought. Obtaining a confession in these circumstances is contrary to law, the reason being to avoid the reliance on false confessions: Intuitively implausible as it may seem, both judicial precedent and academic authority confirm that the pressure of intense and prolonged questioning may convince a suspect that no one will believe his or her protestations of innocence, and that a conviction is inevitable. (at para. 49) [ 78 ] Mr.

Soulier was obviously struggling cognitively and emotionally with the interview. By the last half of the interview, he was in alarming distress and emotional breakdown. [ 79 ] This is not like the case of Azizi , filed by the Crown. In that case, despite some oppressive circumstances, Mr. Azizi remained calm, unemotional and cognitively alert throughout, and did not express anything otherwise. He later claimed that he understood the metaphor of banging one’s head against a wall as a threat. But nothing in the interview suggested that he believed that. That is very different than the interview with Mr.

Soulier, who is crying, banging his head on the wall, his fists on the floor, curling up to the fetal position, begging to go home and saying he is going to die. Conclusion [ 80 ] Given the severe language disorder of the Accused, I accept that on a both a subjective and objective basis, that Mr. Soulier told police of his involvement in a sexual assault in an effort to go home and as a result of the threat and inducement offered by Detective Kendel, in combination with the earlier somewhat oppressive conduct of the arresting officers.

The actions taken by the police may not have resulted in the will of a suspect being overborne for the vast majority of adults, but in this case, given Mr. Soulier’s particular circumstances, they did. He had just turned 18; he was a young, Indigenous man from a remote, northern, Indigenous community who

had been in the city only a short time. He had a severe language disorder and problem with his working memory which drastically affected his ability to understand what was being said to him and how to respond, particularly when dealing with a stressful situation. He had never been arrested before. He was in police custody over 6½ hours, and in the interview room for approximately six hours. He was cold in the room. [ 81 ] In the particular circumstances of Mr.

Soulier as a very young northern Indigenous man with an intellectual language disorder who had never been arrested before, the manner of his arrest and the manner of the interview contributed to oppressive conditions and threats and inducements. I am not satisfied beyond a reasonable doubt that his statement was voluntary and therefore it is not admissible as evidence. “Original signed by” C.A. DEVINE, P.J.