R v Big Bull, 2023 ABKB 221

Court of King’s Bench of Alberta Citation: R v Big Bull, 2023 ABKB 221 Date: 20230414 Docket: 201060472Q1 Registry: Lethbridge Between: His Majesty The King - and - Dustin Big Bull _______________________________________________________ Decision of the Honourable Justice Johanna C. Price _______________________________________________________ I.

INTRODUCTION [ 1 ] Dustin Big Bull (“Dustin” or the “Accused”) stands charged with second degree murder for unlawfully causing the death of Tregan Crow Eagle (“Tregan”), and for improperly or indecently interfering with or offering an indignity to a dead human body or human remains, all of which allegedly occurred on or about July 22, 2020. [ 2 ] The trial of this matter commenced on February 21, 2023, and adjourned on March 17, 2023, to today’s date for me to render my decision in two voir dire applications: 1) the Crown’s voluntariness application; and 2) the Defence’s Charter breach application.

The trial is scheduled to resume on June 6, 2023, and will conclude on June 8, 2023. [ 3 ] In the Crown’s voluntariness application, the Crown seeks to have admitted the following into evidence in this trial: (

a) video and audio recordings and transcripts of the video and audio recordings that contain statements made by the Accused following his arrest on October 15 and 16, 2020; and (

b) statements made by the Accused to Lethbridge Correctional Centre Officers (“LCC Officers”) on November 22, 2020. [ 4 ] In the Defence’s Charter breach application, it is alleged that Dustin’s constitutional rights pursuant to sections 7 , 8 , 11(

d) and 15(1) of the Canadian Charter of Rights and Freedoms ( Charter ) have been breached (the “ Charter Application”) while he was in custody at the Lethbridge Correctional Centre (“LCC”). The Defence seeks an order pursuant to section 24(2) of the Charter , to have Dustin’s handwritten notes and to have audio recordings of telephone communications between Dustin and third parties, excluded from the trial.

[5] I will first address the Crown’s voluntariness application and will later address the Defence’s Charter Application. II. CROWN’S VOLUNTARINESS APPLICATION [6] The law is clear, if an accused person says something to someone in authority and the crown wants to use that statement in atrial, unless the accused person consents to the use of the statement made, or takes no issue with the use of that statement in the trial, thecrown must prove beyond a reasonable doubt that the statement made by the accused is voluntary.

This is because statements made by anaccused person to persons in authority are inadmissible unless they were made by the accused person voluntarily. This is the commonlaw rule on voluntariness also known as the confessions rule. [7] The rule is concerned with reliability of the statement made by the accused. If an accused person makes a statement becausethey were coerced or were under duress, what they said may be false. Involuntary statements made by an accused are more likely to beunreliable.

To avoid a miscarriage of justice, statements that are found to be made involuntarily are inadmissible. [8] The Supreme Court of Canada decision of R v Oickle, 2000 SCC 38, remains the leading case on voluntariness and theadmissibility of confessions.

The approach to assessing voluntariness is contextual and consideration must be given to all relevant factorswhen reviewing a statement or confession: Oickle at para 47. [9] As aptly explained in R v Spencer, 2007 SCC 11 at para 12, citing Oickle: In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to thevoluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating minddoctrine and police trickery.

Threats or promises, oppression and the operating mind doctrine are to be considered together and “shouldnot be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the otherhand, the use of “police ... trickery” to obtain a confession “is a distinct inquiry ... [given that] its more specific objective is maintainingthe integrity of the criminal justice system” (para. 65). [10] Taking the above factors into consideration and the context in which the statements were made, I will now assess whether thestatements made by Dustin were made voluntarily.

A. Were the statements made by Dustin on October 15 and 16, 2020 followinghis arrest voluntary? [11] On October 15, 2020, at or about 10:22 a.m. the RCMP Major Crimes Unit (“RCMP”), attended at a house identified as theresidence of Hope Pard to arrest Dustin and his girlfriend Mariah Smith (“Mariah”). [12] Audio and video recordings along with transcripts of the recordings from the interactions between the RCMP and Dustin thattook place on October 15 and 16, 2020, formed part of the evidence in the voir dire. In addition, Cst. Nelson and Sgt.

Williams testifiedin respect to the statements made by Dustin on October 15 and 16, 2020. The Defence did not advance any Charter breach in relation toDustin’s arrest or statements made by him on October 15 and 16, 2020. However, the Defence opposes the Crown’s proposition that thestatements made by Dustin were voluntary. [13] Pursuant to the evidence on the record before me, Dustin and Mariah were both arrested at approximately 11:13 a.m. andtaken separately to the Piikani Nation Detachment in Brocket (the “Brocket Detachment”) in the morning of October 15, 2020. Mariahwas taken from the house out the back door.

Dustin was taken out of the house from the front door without shoes and without a jacket.With permission from Dustin, an officer went back into the house to get shoes but there is no evidence Dustin was permitted to wear theshoes. He was placed in the police vehicle and was transported to the Brocket Detachment. From review of the video recording, Dustinappeared to be shivering and was clearly cold and was perhaps in some state of shock while he was in transport to the BrocketDetachment. [14] Before departing for the Brocket Detachment Dustin was Chartered and cautioned by Cst.

Nelson for the murder of Treganand for indignity to Tregan’s dead body. Dustin informed Cst. Nelson that he wanted to speak with a lawyer. I find that Dustinunderstood that he was being arrested, and what he was being arrested for. I further find that he understood at all material times onOctober 15 and 16, 2020, that he was speaking to persons in authority. I further find he understood what was being said to him andunderstood what he was saying; and that he knew that what he was saying could be used against him.

I find that on October 15 and 16,2020 Dustin had an “operating mind”: R v Whittle, (SCC), [1994] 2 SCR 914 at para 50. [15] Just before departing from Hope Pard’s residence for the Brocket Detachment, Dustin asks if he can go back to see his“wife” referring to Mariah. He says he wants to go back and give her a hug and kiss and to tell her that he loves her. Constable Nelsonsays “no” and advises Dustin he is being taken to the detachment [Voir Dire Exhibit 16 at page 15]. [16] While enroute to the Brocket Detachment, Dustin asks about Mariah and is told by Cst.

Nelson that she has been charged withassault. [Voir Dire Exhibit 16 at page 16]. Both Dustin and Mariah were allegedly involved in an incident the night before allegedlyinvolving an assault on Tyran Provost-Many Guns. [17] While at the Brocket Detachment, Dustin calls out to Mariah and discovers that she is there when she responds. He yells out toher “I love you” three separate times before he is later transported to the RCMP detachment at Pincher Creek (“Pincher CreekDetachment”) [Voir Dire Exhibit 16 at pages 25, 31 and 33]. [18] While readying to take Dustin to the Pincher Creek Detachment Cst.

Nelson says to Dustin: “Hey, Dustin. Dustin. So, thecat’s kind of out of the bag with Mariah there. Obviously, you know that she’s in shit in cells, hey?”. [Voir Dire Exhibit 16 at page 43].

[ 19 ] While enroute to the Pincher Creek Detachment Cst. Nelson then says to Dustin: “So, hey, Dustin. One of the things that my sergeant there’s a little bit worried about is, you know – is what’s gonna happen with Mariah. Yeah? Are you listening?”. Dustin responds: “Yeah.” [Voir Dire Exhibit 16 at page 44]. [ 20 ] While at Pincher Creek Detachment, early on in the interview process Dustin asks Cst. Nelson if Mariah’s okay [Voir Dire Exhibit 16 at page 73]: Dustin: Can you tell me if Mariah’s okay? Cst. Nelson: Can I tell you that Mariah’s okay? Yeah. I – last I saw her she was all right.

She knows –you said hi to her and then – in the cell. I know she’s a little bit, like, worried about what’s going on and stuff. Like the charges are pretty serious. But – but – yeah. Like, I think she knows that you’re gonna be treated well. We’re gonna treat her well. You care about her, hey? She’s a – she’s a pretty girl. Dustin: She is. Cst. Nelson: Have you been with her for long? Dustin: About five months. [ 21 ] While at the Pincher Creek Detachment, Dustin is escorted and taken to and from cells to the interview room by Cst. Nelson. During the voluntariness voir dire , Cst.

Nelson testified that he was a member of the RCMP Interview Assistance Team (“IAT”) and he explained that in his role, he was to arrest, Charter and caution Dustin and also escort Dustin to and from cells with a recorder, always recording everything that Dustin said. [ 22 ] While recording Dustin, Cst. Nelson asks Dustin if he knows if Mariah has a criminal record, then says to Dustin: “ —she’ll probably get out then, eh? You think? Do you think – what do you think? What’s she up on? Do you know what her deal is? ”.

Dustin responds: “ She should be out. ” [Exhibit 16 at page 112 and Exhibit 1, MM0083 at 2:38 in the audio recording]. Cst Nelson then later says to Dustin: “ But if—if there’s a situation where Mariah wasn’t involved or we can circle her out, that’s important information as well. Does that make sense to you? ”. Dustin responds with: “ I just want to remain silent. ” [Exhibit 16 at page 113]. [ 23 ] In total, Dustin relays to the RCMP over the 2 days and 9+ hours of being recorded that he wants to maintain his silence 82 times.

Notwithstanding repeatedly saying that he wants to maintain his silence, the RCMP persist and ultimately get Dustin to provide some information about the last time he and Mariah saw Tregan and some information about what happened between him and Tregan. I find that the RCMP were able to get this information from Dustin by using Dustin’s “trigger point”, which was Mariah. [ 24 ] Using trigger points is not the issue here. The law allows police investigators to use triggers or “some kind of inducement” to extract information.

The issue is not the trigger point itself, you have to look at the context and surrounding circumstances of the accused and then assess, based on what was said to the accused, and what and how the accused responds, to determine whether the will of the accused was overborne. In Oickle at para 57 , the Court states: In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App.

R. 207 (C.A.) at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person.

There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession. [ 25 ] In this case I find that the RCMP implied to Dustin that if he breaks his silence, and provides some information to corroborate Mariah’s story, he could help her. It is inferred based on what is said to Dustin that by providing the RCMP with information, Dustin can reduce the consequences of what is to come for Mariah.

Based on what is said to Dustin, I do not find that it was self generated hope. In other words, I do not find that Dustin hoped that if he confessed, it would reduce the consequences for Mariah, I find that what was said to Dustin, implied that Mariah’s outcome would be better.

I find that the reason Dustin broke his silence at times when he did was as a result of the inference made by the RCMP to Dustin that anything he may say that corroborated what Mariah had told them would result in leniency for Mariah, and Mariah not being charged for Tregan’s murder or being an accessory to Tregan’s murder. [ 26 ] Threats or promises need not be aimed directly at the accused for there to be a coercive effect: Oickle at para 51, Spencer at para 13, see also R v Simpson, 2011 NSSC 250 . From my review of the case law, it is clear that each case must be assessed on its own facts.

While a quid pro quo may be “the most important consideration” it is not an exclusive factor or sole determinative factor for voluntariness, I must consider the context, circumstances and particularities of the accused and pending that assessment, even if there is a quid pro quo , the statement may still be considered voluntary: Spencer at paras 13, 14 .

As best summarized by the Court in Spencer at para 15 , Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement.

[ 27 ] Individually, and cumulatively, the references made to Dustin about Mariah, when considering all of the surrounding circumstances and the particular context involving Dustin, leave me with a doubt as to whether the statements made by Dustin were the product of a free will being exercised to make a statement, or whether Dustin’s responses were provided as a means to convince the RCMP not to carry out the threat to charge Mariah as an accessory to Tregan’s murder. [ 28 ] In reaching my conclusion, I have assessed what the circumstances were surrounding the confession made by Dustin.

My finding includes the context that Dustin is Indigenous, was living in Brocket, Alberta on Piikani Nation, in a home that he and his father “Rodney” had once occupied but had burnt down since Tregan’s death. It also includes the context that Dustin’s father was a respected man in the community and had died the year before Dustin’s arrest, sometime in 2019. I further understand that Dustin’s father Rodney was a sixties scoop survivor.

Further taking judicial notice of the fact that many Indigenous people suffer from historical trauma and that trauma is passed on to children of survivors and the children of children of survivors.

Understanding, and appreciating that observed responses to historical trauma may include signs of overall poor physical and emotional health, such as low self-esteem, depression, substance misuse, and high rates of suicide. [ 29 ] Furthermore, the circumstances and context include the particularities that Dustin has substance misuse issues and exhibited other signs that he himself may be suffering from historical trauma.

The circumstances and context also includes the information that Dustin and Mariah were in an intimate relationship, often seen together, and it can be inferred that they were dependent on each other. They left Brocket together sometime in late July of 2020 and later returned together before their arrest. They each made expressions of love for one another, at the time of their arrest and while the RCMP were interviewing each of them. [ 30 ] At the time of Dustin’s arrest, he had not been wearing shoes. He was not permitted to wear shoes. He was cold. He was placed in his cell and fell asleep.

Upon awaking he was given a warmer shirt to wear and food to eat while in the interview room. Dustin lacked sleep. He at one point says to the interviewer that he hadn’t slept for a “ few days ” [Voir Dire Exhibit 16 at page 171]. In addition, the RCMP knew that Mariah was a trigger point for Dustin. They used Dustin’s vulnerabilities to extract information from him. Taking everything into context as I have outlined, I have doubt as to whether the statements made by Dustin were voluntary.

Despite the fact that Dustin and Mariah had only been in an intimate relationship for approximately 5 months at that point, I believe based on Dustin’s particularities and circumstances that his will was overborne. Some of the exchanges of particular note that the RCMP had with Dustin that lead me to my conclusion with respect to the statements Dustin made on October 15 and 16, 2020 (including the ones earlier set out), are as follows: Voir Dire Exhibit 16 at Pages 114 and 115: Cst. Nelson: ...If you had any information about somebody being innocent, would you – would you talk to us about that?

Would that be something that you would talk about? Dustin: (inaudible) she should be going home. Cst. Nelson: I’m sorry? Dustin: She should be going home. Cst. Nelson: ...sometimes people, like yourself, they can point out the – the people that should be going home. And I just want to make sure. Because, like my biggest fear – it’s not putting, you know – having somebody take responsibility for what they got. That’s – that’s something we do. That’s kind of on the side.

One of my biggest fears is that we would have somebody innocent or somebody that – shouldn’t be involved whatsoever get wrapped up in something like this. Yeah? I never want that to happen. And she seemed like a good girl, man. Dustin: Mm-hm, she is. Voir Dire Exhibit 16 Page 171, 172 and 173 Cst. Nelson: ...What’s your biggest fear? Dustin: Biggest fear? Mariah. Cst. Nelson: I don’t want trouble for her. She – Dustin: (inaudible) shouldn’t be in trouble. I just want (inaudible) investigation (inaudible). Cst. Nelson: Yeah. Dustin: (inaudible). Cst.

Nelson: ...there’s only a handful of people that are able to kind of connect the dots, right? And you’re definitely one of those people. So, like, it’s your decision. This is --- Dustin: (inaudible) what can I say? ... Cst. Nelson: ...You’re conflicted. I get it. But you truly love her, you know? Sometimes when you love people, you gotta put them first, right? Dustin: She is first. [ 31 ] In addition, the following exchanges between Sgt. Reister, Sgt. Kuca and Sgt. Williams with Dustin are of particular note:

Exhibit 1, DOC00138 at page 21 and 22: Sgt. Williams: ...My other concern is Marie, Mariah. Um. I talked to you about the other cases where there’s girls involved. Sometimes the girls DNA are found at locations as well... So just, I want you to think about that. Because and I mean the police are, they all have a job, somebody else is gonna be dealing with Mariah, um, and I don’t want... I don’t want, if prevented... if it, if we can prevent her being in any trouble... Exhibit 1, DOC00138 at page 31 of 57: Sgt. Reister: Yeah. Um, there’s a couple of things I wanna...

I wanna talk to you about, um, you’ve been in here with Darryl for a little while but, uh, I want to make it clear, a couple of things, is uh, your girlfriend? Um, she’s-she’s being interviewed now as well as her family and stuff, so um, Darryl had mentioned to you that, uh, there was unknown female DNA, uh, where the body was found. That’s not entirely true, in that I may have, uh, given him some... wasn’t... maybe I wasn’t clear in some of the information I had given him. But, it was uh, it was at the house on some articles, it wasn’t at the scene. But... Exhibit 1, DOC00162 at page 92 and 93: Sgt.

Kuca: ...And it told me right then and there how much she cares about you because the idea of simply the fact that you are being arrested. And I told her like you know you are going to be facing some charges she was very, very concerned about you right. Dustin: Yeah. Sgt. Kuca: So my question for you is this. You told Chris apparently and you just agreed that she’s not involved. But here’s the thing she is involved. And I don’t mean involved in I don’t mean involved in the sense... that she did something to you know did something to this young man.

But she is involved based on her description of what happened because she, she tells me a whole sequence of events.... We all, the only reason that’s important Dustin is because if she’s cleaning up the evidence okay that a homicide has happened...Or attempt to cover it up so you get away with it, that makes her it puts her in the category of being an accessory after the fact to murder. Now being an accessory after the fact to murder carries with it a potential life sentence just like murder does, okay.

Now my guess is that if you care deeply for Mariah and I believe you do that you don’t want Mariah to go through this and be sucked into the middle of this. Am I right? Dustin: Of course. Exhibit 1, DOC00162 page 96 and 97: Sgt. Kuca: ...But I asked her did Dustin threaten you, did he tell you that he’d do something to you if you talked to the police, and she said no. It’s not because of threats it’s because of love and her concern for you...

But I think you have the opportunity here to clarify some things so that people know the real truth about why this happened, exactly what happened and where Mariah was at various points of this. So the police have a more accurate idea of what and how to deal with her. Because if she doesn’t deserve to being charged and drug through the system on this I certainly hope that you will tell us that. And I don’t mean... Dustin: I did. Sgt. Kuca: But you saying that she didn’t do anything is not good enough for me. I need to understand what happened and how she’s not involved in that. Dustin: She would have told you.

Sgt. Kuca: What’s that? Dustin: S he already told you. Sgt. Kuca: Yeah well she told me her version of events. And I want to compare that version of events to what you have to say. Exhibit 1, DOC00162 page 98: Sgt. Kuca: ...You also have the opportunity to tell what happened because I believe if you do it would verify and corroborate what Mariah has said enabling me to say to the Investigative Team this is the proper way to deal with Mariah. Dustin: Well this is what I have to say. If I’m going to be saying anything it’s going to be damaging to her.

I don’t’ know what’s been said I don’t ‘cause but I’m saying I will have to remain silent because I don’t’ want to damage her. Exhibit 1, DOC00162 page 108 and 109: Sgt. Kuca: Is there anything pressing going on Dustin in your mind that we need to address. Anything that is bothering you anything that... Dustin: The investigation is on me it shouldn’t be on her... I’ve, I’ve said all I can say about what her involvement is because that was all of her involvement. And there’s no way of anything other way that she had known anything that this had happened because if.

Well I’ll just leave that for the courts because there’s things here that I have to protect myself from too... Voir Dire Exhibit 17 at page 16 and 17: Sgt. Kuca : …And what she clearly does care about a lot Dustin is you... you said that you’re worried that your story and Mariah’s stories isn’t going to line up, well here’s the thing, Mariah’s looking me in the eye and claiming that she told me the absolute truth. So if

you tell me the truth your stories should line up perfectly. Dustin: I told you. Sgt. Kuca: You know? Dustin: I already told you, there’s... she said what happened happened. [...] Sgt. Williams: ...I uh, I don’t, I didn’t see emotion, in, in Dustin. But what comforts me is that when you talk about compassion and, and her feelings towards him, he has to have compassion, and he has to have feelings of love because she’s connected to him. And he said she’s telling the truth. Voir Dire Exhibit 17 at page 40 : Sgt.

Williams : I think the biggest concern and I, I don’t know the whole investigation obviously I know that the guys did as best as they can with what they have, is the unknowns about Mariah. Voir Dire Exhibit 17 at pages 44 and 45: Sgt. Kuca: But if we think, if, I want you to, I want to fast forward a little bit. Now let’s assume that Piikani’s now deceased. Okay? Let’s skip over what happened to him that caused him to be deceased.

I believe there are some very specific details that Dustin could tell us about how we would have found Piikani when the investigators were drawn to, or brou- you know, notified...of where he was located and when they started to examine that. I think there is some things about how he’s located that Dustin could talk about that would make it very clear if there’s ...that would take away the possibility of one of these investigators arguing that Mariah had anything to do with that. For an example, if there’s materials there, items there, present with his body, that came from let’s say, arguably in the house... Sgt.

Williams: Yeah. Sgt. Kuca: ...where Mariah has spent time, it’s important to clarify that so that we can explain any DNA, any evidence. Sgt. Williams: So if there’s items in the house that she would have touched prior to... Sgt. Kuca: She lives there, right? Sgt. Williams: Yes. Sgt. Kuca: So what I’m trying... Sgt. Williams: But if the DNA... Sgt. Kuca: ...to explain to these investigators is, I’m just like you Darryl, I don’t know what all the DNA evidence is. Sgt. Williams: Yeah, yeah. Sgt. Kuca: And I don’t know what all the things are.

I’m trying to make sure I do my job as best as I can to explain how it’s possible that there might be something where his body is that they think, that, that I honestly don’t believe she has any knowledge of, but I think that Dustin’s explanation of that could help us remove any suspicion from Mariah, that she had anything to do with that. Do you know what I’m saying? Voir Dire Exhibit 17 at page 51: Sgt. Kuca: I’m guessing that there is based on what the investigators are saying to me. I’m trying to remove any con- further concerns that they could have about, like I’m trying to explain evidence as best as I can.

If Mariah’s telling me the truth to be able to do my, ‘cause I assured her that I would everything I could do to prove all the various things she told me, okay? And that’s what I’m trying to do is show that it’s possible that these guy might have something that makes them think that she’s more involved and I, I want to be able to explain that if I can. ... Voir Exhibit 17 at page 54: Sgt. Kuca: Well let me ask you this, would we have to tell Mariah that Tregan’s dead if Mariah was involved? Sgt. Williams: No, you’re right. Sgt. Kuca: Right she’d know, right? So why did he have to tell her that Tregan...was dead?

Because Mariah didn’t know, which means Mariah didn’t participate in the murder, which means he’s telling the truth. And which means Mariah’s telling the truth. But I really want to drill down in that conversation because what he told her, and if she is telling me the truth, that’s going to prove it. Right? Sgt. Williams: Can you remember what you said to her uh Dustin? Did you give her details at all, or? Did she ask you what happened or where he was, or how? Any of that stuff? ‘Cause he’s obviously got a clip with her saying something, right? Dustin: I don’t – (inaudible). I know what’s going on.

Voir Dire Exhibit 17 at page 55 and 56: Sgt. Williams: Did you witness somebody else do something to Tregan?

Dustin: I didn’t. That’s why I look... that’s why I look the way I look right now is ‘cause I don’t, something happened that I don’t know, what the... what it... It’s my fault that he was out there, yeah but I didn’t... Sgt. Williams: Okay, Thank you. Dustin: Yeah. Sgt. Williams: Thank you. That’s a good closure for them. It’s your fault that he’s out there. That comes, that’s a big, that’s a big statement. Sgt. Williams: But-but that, I felt that come off your heart. Dustin: I knew he was alive, but he was alive I know he was alive when I went back inside. And the thing is though uh, that wasn’t the next day.

Sgt. Williams: No. God- God rest his soul, hey? I think that’s going to be a big weight off you as well. When I talk about [unintelligible]... Dustin: Well it is whatever you know? Sgt. Williams: It is what it is, right? Dustin: Yeah for now. This sucks. Sgt. Williams: It sucks. Take, some breaths and, and, and think about your where you’re at in life, where you want to be... Dustin: Well I’m where I’m at now ‘cause you now, I’m not going to let my woman go down for something like this.

Ever. [ 32 ] Dustin says 82 times over the 9+ hour recording that occurred over two days that he wants to maintain his silence however, he provides to the officers bits and pieces of information to corroborate Mariah’s story and then says “ yeah, it was my fault that he was out there ”, inferring that it was his fault that Tregan’s body was in the field and putting the pieces together, that he had something to do with Tregan’s death and Mariah had nothing to do with it. He then concludes his comments with “ I’m not going to let my woman go down for something like this.

Ever. ” [ 33 ] In addition, I noted that the words “love” comes up 39 times, and “loves” 12 times over the course of the questioning. Ninety- nine percent of the time it was used by the officers, it was in the context of Dustin’s affection for Mariah or her affection for Dustin. [ 34 ] Taking everything into context, including Dustin’s circumstances and particularities, I have a reasonable doubt the statements made by Dustin over the course of October 15 and 16, 2020, were made voluntarily.

Individually and cumulatively, the references made of Mariah by the officers when taken into context of the questioning before and after the references were made about her, leave me with a doubt as to whether the responses Dustin gave were the product of a free will being exercised to make a statement, or whether the responses he gave were provided as a means to convince the RCMP not to carry out the threat of charging Mariah, the person he loves and the person whom he believes loves him, which was all reinforced by the RCMP through the comments they made to him, with being an accessory to Tregan’s murder.

I make this finding, keeping in mind the context of this person, Dustin, who I believe is a vulnerable person. [ 35 ] The findings I have made include consideration of whether while being detained for questioning, Dustin was oppressed. I do not find that Dustin was oppressed in the sense of being deprived of warmth, food, drink and smoke breaks, but I do find that in Dustin’s case, his circumstances, being what they were at the time as I have outlined above, were considered.

This includes the argument advanced by the Defence and the acknowledgment of the Crown that “there is a historic power imbalance between white police officers and First Nations accused”. Although Dustin “was not treated poorly”, I take judicial notice of the fact that there exists a power imbalance that when taken into consideration of all of the facts in this case, including Dustin’s particular circumstances, cannot be ignored. [ 36 ] Each case needs to be assessed on its own facts.

In this case, considering Dustin’s particular circumstances and the facts, I find that Dustin’s will was overborne. [ 37 ] The Crown submitted that the RCMP did not threaten, promise or induce Dustin to say anything. I respectfully disagree. I have earlier set out particular exchanges between the officers and Dustin that I found of particular note. These exchanges lead me to the finding that the RCMP implied to Dustin that Mariah could be charged with being an accessory to Tregan’s murder unless he corroborated her story and confessed.

I find that this type of threat is exactly what the confessions rule is intended to safeguard against. [ 38 ] The rule is in place to address the exact type of concern raised in this case – , the threat that a loved one may be charged with a serious offence that could mean a lifetime of imprisonment. The concern as earlier set out is with respect to the reliability of statements made when they are made in the circumstances such as these.

In the result, I have a lingering doubt in my mind whether what Dustin said was true or whether he corroborated Mariah’s story and accepted fault to protect Mariah from being charged as an accessory to Tregan’s murder. [ 39 ] I find that the facts in this case are distinguishable from the facts in Spencer , Oickle, R v Engel, 2016 ABCA 48 and other cases relied on by the Crown where the Court found the inducement concerning the significant other did not result in an involuntarily statement. As previously stated, each case must be assessed on its own facts and the particularities and circumstances of the accused.

All of which is looked at contextually to assess whether the statements made were made voluntarily. [ 40 ] I agree with the Crown, there is no “bright line rule” for how many police questions are too many, or how many assertions of

the right to remain silent are too many, or how many references to an accused’s significant other are too many, before an accused’s will is overborne. However, based on all of what I have set out of the circumstances, the particularities and taken all into context of what transpired over the course of the two days of October 15 and 16, 2020, I find Dustin’s will was overborne. [ 41 ] In

summary, I find that the Crown has not proven beyond a reasonable doubt that Dustin’s statements made on October 15 and 16, 2020 were voluntary. Accordingly, I find that the statements made by Dustin on October 15 and 16, 2020 are inadmissible and are to be excluded from evidence in this trial. B.

Were the statements made by Dustin on November 22, 2020 following his suicide attempt made voluntarily? [ 42 ] On November 20, 2020, while in custody at the LCC, Dustin attempted to take his own life by slitting his wrists with a razor blade. [ 43 ] LCC Officer Baker testified that he gave Dustin a razor to use during Dustin’s free time. Dustin had roughly thirty minutes with the razor. When Officer Baker buzzed Dustin’s cell to get the razor back, Dustin requested more time with the razor.

When Officer Baker went to do a health check, he testified that he saw Dustin with the razor still in hand with his wrists in the sink. Officer Baker was the first to arrive at the scene of Dustin’s suicide attempt. He testified that he tried to take Dustin to the ground but Dustin resisted and then another LCC officer arrived to help. They secured Dustin and applied pressure to both of Dustin’s wrists. [ 44 ] As was explained by the testimony of the LCC Officers, including Officer Mueller, there were several people involved in what was described as a code 99 medical emergency.

LCC Officers and LCC Staff medical personnel gave medical attention to Dustin until Emergency Medical Services (EMS) arrived. [ 45 ] I heard testimony that earlier the same week that Dustin attempted suicide, another inmate at LCC had committed suicide. From the testimony of the LCC Officers, I understand that Dustin’s suicide attempt was a traumatic event for everyone especially given the suicide that had occurred just a couple of days before.

Based on the pictures that were put into evidence of the scene of Dustin’s cell after his attempt and the way it was described by the LCC Officers, there was a lot of blood and gore. [ 46 ] There were approximately 8 individuals involved on the LCC emergency response team that day. A 911 medical emergency was called and EMS took over the medical attention to Dustin when they arrived. Dustin was then taken to the Lethbridge Regional Hospital (“Hospital”) by ambulance.

Officer Mueller testified that he was one of the officers who escorted Dustin to the Hospital. [ 47 ] As was explained by LCC Officer Stella who was supervising that day (November 20, 2020) he delegated two LCC Officers to escort Dustin to the Hospital with EMS. While in Hospital, two LCC staff would be present at all times while Dustin was in the Hospital’s care. [ 48 ] On November 22, 2020, while still in Hospital receiving treatment, Dustin made statements from his hospital bed.

Two LCC Officers at the time, Chad Kreujer and Andrew Bennett, testified at the trial about what Dustin said. [ 49 ] Andrew Bennett testified first. He recalled that Dustin was shackled to the bed and was sleeping when he and Officer Kreujer arrived to take over the shift from the other LCC Officers who were on guard. Mr. Bennett testified that his job was to make sure Dustin was safe and that no one not authorized to be there came in. [ 50 ] Mr.

Bennett could not recall whether Dustin was on IV (intravenous) and did not recall whether he was debriefed on what medications Dustin was receiving or whether Dustin received any medications while he was guarding Dustin, but he did recall that medical staff came in and out of Dustin’s hospital room. Mr. Bennett also testified that he could not recall what if any comments or discussion he was having with Officer Kreujer before he heard Dustin speak. [ 51 ] When asked on cross-examination whether he recalled whether Dustin was addressing him or his colleague or the room generally when he heard Dustin speak, Mr.

Bennett testified that it was the room generally that Dustin was speaking to. I understand Mr. Bennett’s response to mean that Dustin was not speaking directly to anyone. [ 52 ] Officer Kreujer also could not recall whether Dustin was on IV and confirmed that when Dustin spoke, Dustin was speaking to the room generally and was not specifically addressing him or Mr. Bennett. [ 53 ] Both Mr. Bennett and Officer Kreujer testified that Dustin muttered. [ 54 ] Mr.

Bennett testified that he was seated to the side of Dustin’s hospital bed about 4 feet away (Officer Kreujer said 6 feet away) when Dustin stated out of no where that he felt bad for what he did to that kid and that he was going to hurt the kid’s family after he hurt him because the family messed his house, threw rocks and lit part of the house on fire. Mr. Bennett testified that he did not say anything in response to what Dustin said nor did Officer Kreujer. Mr. Bennett testified that he heard Dustin say other things too about a tarp and a field.

In addition, he said that he heard Dustin say that he wanted to go to a good facility and that he was clearly messed up in the head and needed help. Also, Dustin said that he wanted to speak to MCU again because the first time he chickened out and they are going to want to hear what he had to say. The last comment Mr. Bennett said he heard Dustin say was that now his girlfriend dumped him, he was going to take her down with him because she was there when it happened. [ 55 ] Each time Mr. Bennett was asked whether he responded to anything Dustin said, Mr. Bennett said “no”. Mr.

Bennett did not respond to Dustin nor ask Dustin any questions about what Dustin said. [ 56 ] Officer Kreujer also testified along the same lines as Mr. Bennet of what he recalled Dustin had said, and he too, like Mr. Bennett did not respond to anything Dustin said or ask Dustin any questions. I gather from their testimony that they just listened and observed which is what they were tasked with doing while guarding Dustin. They were not there to question or interact with Dustin.

[57] The Crown accepts that Dustin was most likely on some sort of medication but argues that “there is no evidence that whatevermedication may have been administered to the Accused prevented him from knowing any of (a)(

b) or (

c) above.” The (a)(

b) or (

c) refersto the operating mind test, the factors being: (

a) Does the Accused know that he is speaking to a police officer [law enforcement]; (

b) Does the Accused know what is being said to him and knows what he is saying; and (

c) Does the Accused know that what he is saying can be used against him. [58] There in lies the difficulty with the Crown’s voluntariness application. I find based on the evidence before me that whetherDustin had an operating mind on November 22, 2020 is questionable. Dustin had just attempted to commit suicide. He was in Hospital. Itis admitted that he was on “some sort of medication”. [59] R v Whittle, (SCC), 1994 CarswellOnt 91, [1994] 2 SCR 914, is the leading case on the operating mindcomponent of the voluntariness inquiry.

At para 46, the Court states: The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she issaying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what anoperating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an activechoice, the relevant test is: Did the accused possess an operating mind?

It goes no further and no inquiry is necessary as to whether theaccused is capable of making a good or wise choice or one that is in his or her interest. [60] The Crown says that based on what Dustin said I should infer that Dustin knew that he was speaking to persons in authority,he knew what he was saying, and he knew that what he was saying could be used against him. [61] I cannot jump to the conclusions that the Crown would like me to based on the evidence before me. The burden is on theCrown to prove beyond a reasonable doubt that the statements made by Dustin were voluntary in the circumstances.

In this case, basedon the evidence before me, I have doubt as to whether Dustin’s mind was operating on November 22, 2020, 2 days after he attemptedsuicide while he was receiving medical treatment in Hospital. In this instance, there is just not a sufficient basis to find that he had anoperating mind and to the contrary, I have reason to believe given the circumstances that his mind was not operating at the time. He wason medication, although the specific type of medication is unknown. I can infer that he was depressed as he had just attempted suicide,he was still in the Hospital and receiving treatment.

What he said was to the room generally and not specifically to either Mr. Bennett orOfficer Kreujer, all of which leads me to believe that he did not have an operating mind or at least, I have serious doubt as to whetherDustin had an operating mind. This is in light of the “limited degree of cognitive ability” necessary to make a finding as to whether aperson possessed an operating mind. As previously stated, each case must be assessed on its facts.

The facts of this case, given theparticularities and circumstances of the Accused in this instance, are not like any other case. [62] In the result, I am not convinced beyond a reasonable doubt that Dustin’s statements he made while in the Hospital onNovember 22, 2020 were made voluntarily. Accordingly, the Crown has not proven beyond a reasonable doubt that the statements madeby Dustin on November 22, 2020, while in Hospital to the room generally, were made voluntarily. As such, the testimony of OfficerKreujer and Mr. Bennett is excluded as evidence in this trial. III.

DEFENCE’S CHARTER BREACH APPLICATION [63] I will now provide my decision on the Defence’s Charter breach application (“Charter Application). [64] The grounds set out in the Charter Application are two-fold: [65] First, that while Dustin was remanded by operation of law, having been charged with murder, at the LCC, LCC Officerssearched and seized from his cell a written note (suicide note) and intercepted his telephone communications; [66] Second, LCC staff advised investigators of the Royal Canadian Mounted Police, Major Crimes Unit (RCMP), of the seizure.In the result, the RCMP obtained judicial authorization for the material seized by the LCC Officers. [67] The Defence seeks an order pursuant to section 24(2) of the Charter, to have the suicide note/notes and the audio of thetelephone communications excluded from the trial. [68] The following are the undisputed allegations of fact that the parties agree are pertinent to the Charter Application: (

a) On July 23, 2020, Tregan Crow Eagle (the deceased) was reported missing. (

b) On July 27, 2020, the deceased’s body is found next to a shallow hole dug in the ground. (

c) On July 29, 2020, the autopsy indicated the deceased died from sharp force injuries. (

d) On August 3, 2020, a search warrant is executed at the Accused’s residence. Evidence implicating the Accused is recovered. (

e) On October 16, 2020, the Accused is charged with the murder of the deceased. (

f) On November 20, 2020, as a result of a suicide attempt, the Accused’s cell was searched, and a suicide note and other paperswith writing were seized by LCC staff. RCMP officers were advised of the seizures and a production Order was obtained. In addition, theAccused’s phone calls that were recorded by LCC staff from October 16 to December 15, 2020, were also provided to the RCMP.

[69] Over the course of the voir dire of the Charter Application I heard testimony from RCMP Officers: Sgt. Wilson and Cpl.Harrigan, as well as from several LCC Officers: Mueller, Stella, Trempner, Richardson, Baker, Farrell, and Falade.

I listened torecordings of the conversations Dustin had with third parties and I reviewed the handwritten notes, all of which the Defence argues areinadmissible and should be excluded from the trial. [70] Defence Counsel submitted that the issue in the Charter Application is “whether or not the disparity in the jeopardy that arisesas a result of a reduced Charter protection for a detained accused compared to a released accused, both of whom are presumed innocent,is “justifiable””.

The Defence argues that if the Crown’s position is accepted then the result is “degrees of presumption of innocence anddegrees of trial fairness.” Defence says that “there is a disparity or discrepancy or an imbalance between the rights of a released accusedand a detained accused” and that “the imbalance leads to a difference in the evidence available to the prosecution at trial, which to tryand convict the accused.” [71] It is helpful to first look at what exactly transpired in this case. Briefly, the relevant facts are these. Dustin was arrested for themurder of Tregan and detained at the LCC.

While waiting for trial, on November 20, 2020 Dustin attempted suicide. As set out in moredetail earlier, Dustin slit his wrists with a razor blade. The attempt was made in his cell at the LCC. Following his attempt at suicideDustin’s cell was searched and handwritten notes including a suicide note were seized. In addition, phone recordings Dustin had withthird parties were listened to by LCC Officer Richardson. Following the review of the seized handwritten notes and recordings LCCOfficer Richardson contacted the RCMP.

The RCMP then obtained a production order and pursuant to the production order the LCCturned over to the RCMP the handwritten notes and recordings. The handwritten notes and recordings are relevant to the trial matters inissue. It is these handwritten notes and recordings that the Defence seeks to have excluded from the trial. [72]

Section 8 of the Charter provides the right to be secure against unreasonable search and seizure. The purpose of

section 8 is toprotect a reasonable expectation of privacy. The Defence is adamant that the issue of breach in this case is not

section 8 but rather asection 7 Charter issue. [73]

Section 7 of the Charter provides that: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [74] It is conceded by the Defence that the search and seizure of the handwritten notes and recordings was reasonable, and that theRCMP production order was lawful.

What the Defence is arguing is that it is not fair to Dustin, a detained person, that the items thatwere seized could be used by the Crown in the trial against him. [75] It is acknowledged by the Defence that the LCC Officers are authorized to search and seize from inmates’ cells, their personand so on and to keep or listen to recordings all for the purposes as set out under the Corrections Act, RSA 200, c C-29 (Corrections Act),which is to ensure the security, health, welfare of inmates, correctional officers, and the general public.

However, the Defence submits that when the LCC Officers disclosed the material to the RCMP, their actions went beyond the purposes of the Corrections Act and inthe result breached Dustin’s Charter rights. The Defence says that Dustin’s

section 7 Charter right to be secure was breached by thisaction. Specifically, Defence counsel submits that the fundamental issue is whether there is a disparity in the jeopardy that arises as aresult of a reduced Charter protection for a detained accused compared to a released accused. [76] Defence submits that but for LCC Officer Richardson contacting the RCMP about the handwritten notes and recordings, theRCMP would not have obtained the items.

In my view, looking at the entirety of the circumstances of what transpired, we have to goback a bit further in the chronology of the facts, I say, but for Dustin having attempted suicide, there would not have been a search orseizure that resulted in those items being discovered in the first place. [77] Defence counsel submits that the third branch of s. 7, security, will be engaged where the state action affects or impairs thephysical state or the physical aspect of an accused person.

Defence counsel acknowledges that the Corrections Act properly bestowspowers on Correctional officers, however, Defence counsel submits that these sections contemplate the security, health, welfare of theinmates, correctional officers and the general public. On the other hand, in this case, the seizure of material was not contemplated oracting on behalf of the RCMP was also not contemplated. As a result the actions of the LCC officers were arbitrary.

Defence counselalso submits that a distinction should be drawn between evidence of past and future crimes as evidence of a future crime brings thesecurity of the institution and public into question. I disagree, no distinction should be made of evidence found of a future crime fromevidence found of a crime that has already been made. [78] There is a constitutional right to be secure: s. 7 of the Charter. However, similar to the right to privacy, the right to securitymay be limited in this instance; a reasonable search or seizure is permitted by s. 8 of the Charter.

In Hunter v Southam, (SCC), [1984] 2 SCR 145, the Supreme Court has recognized that s. 8 of the Charter protects a person’s reasonable expectation ofprivacy.

The Court in Southam stated at pp 159-160 that the limitation on the right guaranteed by s. 8: indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by governmentmust give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of lawenforcement. [79] Defence counsel argues that a search and seizure that is justified under the Corrections Act for institutional purposes may notbe justified under s. 7 of the Charter.

If I understand Defence counsel’s argument, he is saying that the unintended consequence of theLCC Officers duty to protect is the sharing of information with outside agencies. I do not accept Defence counsel’s submission that thisduty is overbroad as discussed in R v Clay, 3 SCR 735 at paras 37 – 40. I agree with the Crown, LCC Officers are state actors in theirown right, they are not agents of the RCMP. I find that Dustin’s actions led to the search and seizure which was acknowledged by theDefence to be reasonable and lawful.

I do not find that the LCC Officer’s steps taken subsequent to the attempted suicide including thedisclosure of what was discovered to the RCMP was an overbreadth of the Corrections Act or a breach of a Dustin’s security of hisperson.

[80] Security of the person will be engaged where state action has the likely effect of seriously impairing a person’s physical ormental health: R. v Monney, (SCC), [1999] 1 S.C.R. 652 at paragraph 55. [81] The Court held in Singh v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, that stateaction which has the likely effect of impairing a person’s health engages the fundamental right under s. 7 to security of theperson.

Although not advanced in argument by Defence counsel,-- what the Accused may be seeking in this instance is to extend thisconstitutional guarantee of the right to security of the person to include an obligation by the state to provide supervision in response tothe health risk of suicide, in other words to have prevented the attempt in the first place? Because, but for Dustin’s attempted suicide, therecords would not have been found and subsequently disclosed. However, that is not what Defence Counsel posits.

Rather, Defencesubmits that Dustin’s security of the person is causally related to the impugned action of the LCC giving the records to the RCMP. [82] Looking at this issue in all ways and doing all of the mental gymnastics to discern what if any Charter breach there is on thefacts of this case, I have come to the conclusion that it cannot be that a reasonable and lawful search and seizure that is conductedwhereby information is discovered that is relevant to a criminal proceeding (whether it be evidence of a future crime or evidenceinvolving a crime already committed) would be a breach of a person’s Charter rights.

This would be in my view an absurdity. [83] Furthermore, there is case law that supports law enforcement sharing. In R v Wakeling, 2014 SCC 72 the Supreme Courtconsidered the constitutionality of the legislature scheme surrounding the disclosure of information collected through wiretaps to foreigngovernments. The Court stated that the ability to share information between law enforcement agencies facilitates the effectiveinvestigation of both domestic and multi-jurisdictional crime. That is what was done in this instance (sharing of information between lawenforcement).

More specifically, in this case, LCC Officer Richardson thought he had discovered evidence that would be relevant to theinvestigation of a murder. Although he initiated contact with the RCMP, he did not turn over evidence until the RMCP presented aproduction order. [84] Considering all of the foregoing and the submissions of counsel, I find based on my review of the evidence before me that thedisclosure of this information by LCC Officer Richardson to the RCMP was not a breach of Dustin’s Charter rights, whether that be hissection 7 rights or any of sections 8, 11(

d) and 15 as enumerated in the Defence’s Charter Notice. Accordingly, there is no need for meto embark on the section 24(2) analysis. [85] In

summary, the Defence has not proven on a balance of probabilities that Dustin’s Charter rights were breached. There is nocausal connection between the impugned actions of the state and Dustin’s security of his person. In the result the handwritten notes andrecordings are admitted into evidence in this trial. IV. CONCLUSION [86] In conclusion, with respect to the Crown’s voir dire on voluntariness of the statements made by Dustin Big Bull on October15 and 16, 2020 and then on November 22, 2020, I find that the Crown has not proven beyond a reasonable doubt that the statementsmade by Dustin Big Bull were voluntary.

Accordingly, the statements made by Dustin Big Bull on October 15 and 16, and on November22, 2020, are excluded as evidence in this trial. [87] With respect to the Defence’s Charter breach voir dire on the admissibility of the suicide and other notes found in Dustin BigBull’s cell and the recordings made of his telephone calls with third parties, I find that the Defence has not met the onus of proof on abalance of probabilities that Dustin Big Bull’s Charter rights were breached. Accordingly, the suicide note and other notes and thetelephone recordings are all admitted into evidence in this trial.

Heard on February 21, 2023 to March 17, 2023. Dated at the City of Lethbridge, Alberta this 14th day of April, 2023. J.C. Price J.C.K.B.A. Appearances: J. Andre Ouellette for Dustin Big Bull Lisa Weich and Adam Zelmer, Crown Prosecutors