R. v. Kingatook, 2020 NUCJ 48

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kingatook, 2020 NUCJ 49 Date: 20200214 Docket: 25-18-028 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Abel Kingatook ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): G. Magee Counsel (Accused): W. McDiarmid Location Heard: Iqaluit, Nunavut Date Heard: February 14, 2020 Matters: Voir dire on the admissibility of evidence pursuant to sections 10(

b) and 24(2) of the Canadian Charter of Rights and Freedoms REASONS FOR DECISION (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Mr. Kingatook is charged with murder. The day following his arrest he gave a statement to the police. This is an application to exclude that statement as evidence at trial on the basis that the police breached Mr. Kingatook's right to counsel. The Crown concedes that Kingatook's right to counsel was breached but say that the statement should not be excluded. [ 2 ] At the hearing of this application I heard viva voce evidence from 3 RCMP officers. I viewed a version of the video recording that had the audio stripped from it. I was also provided with a

summary of the statement that the accused provided. II. BACKGROUND [ 3 ] The RCMP received a phone call from the mental health nurse expressing concern for the wellbeing of Mr. Kingatook’s girlfriend. The nurse's concern was based on a conversation she had with the mother of Mr. Kingatook. In response, officers went to the home of Mr. Kingatook's mother. Mr. Kingatook was at his mother's house. When the RCMP asked about his girlfriend Mr. Kingatook said something that suggested she was dead and that he had killed her. Mr.

Kingatook indicated that he wanted to speak with the police at the detachment and went to the police truck. He was taken to the detachment. Meanwhile, other officers went to the home of the girlfriend and found her dead inside the home. [ 4 ] At the detachment Mr. Kingatook was placed in an interview room. He was told that everything in the room was being video recorded. While in the interview room with the Cpl., the other officers called and confirmed that the girlfriend was dead. Mr. Kingatook was then “Chartered” and “cautioned” and told that he was being charged with murder.

These legal duties were all executed in accordance with the law. [ 5 ] Mr. Kingatook said that he wanted to contact a lawyer. III. SETUP OF THE DETACHMENT [ 6 ] The RCMP detachment in Taloyoak is a small, three-officer detachment. The interview room Mr. Kingatook was placed in was a hard/soft interview room, which means it was intended for both witness interviews and accused interviews. There is no separate room designed specifically for accused persons to meet with or speak with counsel. [ 7 ] Approximately 3 months before Mr.

Kingatook was arrested, the interview room was set up with video/audio recording equipment. At the time of Mr. Kingatook's arrest the equipment was still quite new to the officers and had only been used on two prior occasions. [ 8 ] There are cameras in the room. The video equipment is operated and controlled through a laptop computer located in the office of

the Cpl. When an interview is taking place that is to be recorded, the laptop must be used to set the equipment to “record”. If the equipment is not recording, there is still a constant live feed, showing what is happening in the interview room so that activity can be monitored. To hear audio during a live feed the computer must be unmuted and the volume turned up. IV. THE 10(

b) CALL AND STATEMENT OF THE ACCUSED [ 9 ] As stated, there are no issues regarding the Chartering and cautioning of Mr. Kingatook. Indeed, this process was video recorded. The Cpl. testified that he video recorded this process because he did not want there to be any questions later about whether Mr. Kingatook was properly advised of his right to counsel and cautioned. [ 10 ] The Cpl. assisted Mr. Kingatook in contacting counsel, which required several calls and took some time. [ 11 ] As previously mentioned, upon being placed in the interview room Mr.

Kingatook was told that everything was being recorded. [ 12 ] Just prior to speaking with counsel Mr. Kingatook was told to speak loudly and clearly so that his lawyer could understand everything he said. [ 13 ] The call was over an hour long. Early in the call the accused opened the door to the interview room and asked the Cpl. to come in as the lawyer wanted to speak with him.

The officer spoke with the lawyer for approximately 3 minutes. [ 14 ] The first 16 minutes of the call was recorded, with 3 minutes of that being the Cpl. on the phone with the lawyer. [ 15 ] The following morning the accused provided a voluntary, warned statement to the police. V. ANALYSIS [ 16 ] The Crown concedes that the accused's right to counsel was breached when a portion of his call to counsel was recorded, as this constituted a breach of the right to consult with counsel in private. [ 17 ] The issue is whether the statement should be excluded pursuant to s. 24(2) of the Charter . [ 18 ]

Section 24 states:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[19] The analysis that must be applied is that set out in R. v. Grant 2009 SCC 32 , [2009] 2 S.C.R. 353. [20] The purpose of s. 24(2) is to maintain the integrity of, and public confidence in, the justice system. There are three factors that thecourt must consider: a. the seriousness of the breach; b. the impact of the breach on the Charter protected interests of the accused; and c. the societal interest in having the case adjudicated on its merits. A. Seriousness of the breach [21] Charter breaches span a range from minor, technical, inadvertent breaches to systemic, willful, serious breaches.

Where on thespectrum a particular breach lies will assist in determining if the evidence should be excluded. [22] There is no suggestion that this breach is part of a systemic, institutionalized, willful breach of Charter rights. [23] The evidence of the Cpl. is that this was an inadvertent breach, done without even the realization that it was occurring. The Cpl.accepts that he turned the video recording on and that he turned it off part way through the counsel call. He accepts this because he wasthe only person in the detachment other than the accused, so he must have done it.

He testified he does not have any recollection ofhaving done it. The Cpl. testified that this was the most serious case of his career and that there were several things going on at the sametime, including securing the crime scene, communicating with the officers at the scene, updating and getting direction from the MajorCrimes Unit, as well as dealing with the accused. Indeed, the video shows the Cpl. dealing with the accused in the interview room whilealso responding to both a telephone call and a radio call. [24] Defence suggests that there is more to the breach than suggested.

It points to the fact that the Cpl. remembers relatively minordetails from that time yet does not recall information relating to such an important issue as the right to counsel. The evidence wouldsuggest the Cpl. did recall turning the video on, as the Cpl. testified that he recorded the accused being Chartered and cautioned so thatthere would be no question that this was done correctly. The Defence points out that no note was made of having turned off the videoequipment nor was anyone advised that part of the counsel call had been recorded.

The suggestion is that even if the initial recording ofthe counsel call was inadvertent, once it was realized what was done, there should have been full and frank disclosure. [25] There is a further aspect to the breach which must be discussed. No one became aware that part of the counsel call was recordeduntil April of 2019, approximately 10 months after the accused was taken into custody. There was no preliminary hearing in this matter.In April of 2019 the lead investigator on the file was reviewing video evidence in preparation for trial when she came across the videorecorded counsel call.

She recognized almost immediately what she was looking at however, she did not stop the video. Instead, sheviewed the video and then told her supervisors what she had come across. Crown counsel was notified immediately who, in turn, advisedDefence Counsel. [26] The lead investigator is the only person, other than Defence Counsel, who has listened to the video. Defence Counsel wereprovided with an unaltered version of the video.

Everyone else, including the court, have only a version of the video with the audioremoved. [27] I accept that a combination of circumstances, including the newness of the video recording system, the seriousness of the incidentbeing dealt with, and the pressure of dealing with multiple tasks with limited personnel, all contributed to what occurred. I accept that thebreach was not intentional. However, the intention or bona fides of the police is only one factor to be considered when determining theseriousness of the breach.

[ 28 ] The right to consult with counsel in private is sacrosanct. It is fundamental to the confidentiality and privilege of lawyer-client communications. The breach in this instance was beyond minor or inconsequential. It resulted in a complete, clear, and permanent record of an accused person’s initial contact with counsel. [ 29 ] Consideration of the seriousness of the breach favours exclusion of the statement. B.

Impact on Charter protected interests of the accused [ 30 ] This branch of the Grant test requires consideration of the extent to which the Charter breach undermined the interests protected by the Charter . [ 31 ] The privacy component of the right to counsel ensures that accused persons receive confidential, independent, comprehensive legal advice at a time when they are most likely to need it. [ 32 ] An accused person must be able to provide their lawyer with all the information needed to receive comprehensive legal advice.

A lack of privacy has the potential to inhibit full and frank discussions between an accused and his lawyer. [ 33 ] There is an issue in this case as to whether the accused was aware that he was lacking privacy.

If the accused was not aware that his conversation was being viewed or recorded then, arguably, he was not inhibited in discussing matters with counsel and the impact on his right to counsel was minimal. [ 34 ] The accused did not testify in this hearing so there is no evidence as to the subjective state of mind of the accused. [ 35 ] The accused was told that activities in the interview room were being recorded. At no point was he told that this had changed and that the video had been turned off.

At no point was he told that his phone call with his lawyer would be private and confidential and would not be recorded. [ 36 ] The Crown submits that the following factors support the inference that the accused did not believe that his counsel call was being viewed or recorded: A. At one point before the counsel call, the Cpl. leaves the interview room and tells the accused that if he needs anything he could wave, the implication being that the Cpl. will see it on the video monitor. The accused does wave at the camera and does not get a response. B.

Very early on in his call with counsel the accused opens the door to the interview room and asks the Cpl. to come in as the lawyer wants to speak with him [ 37 ] Crown submits that these two instances show that while the accused may have initially thought he was being monitored, when he did not get a response to waving at the camera and thereafter did not rely on the camera to get the attention of the Cpl. he no longer thought he was being videoed. [ 38 ] In my view while this is an inference that can be made, it is not the only inference.

It may be that the accused did not think that the monitoring was continuous. Further, it does not address the fact that the accused was told he was being recorded. Being recorded is different than being monitored. A record may be made which can be viewed later without monitoring events as they are occurring. In

fact, that was precisely what happened. [ 39 ] Objectively, it was reasonable for the accused to have thought that he was being recorded. [ 40 ] The Crown submits that there is no nexus between the Charter breach and the statement. The Crown submits that the evidence that was obtained as a result of the Charter breach was the video of the lawyer call, not the statement given by the accused the following morning. I reject this argument.

A recorded call between an accused and a lawyer would never be admissible evidence (except perhaps in circumstances where the call itself is part of an offence and there is prior judicial authorization). If the Crown's submission is accepted, there would never be a remedy in instances such as this as the evidence flowing from the breach would not be admissible in any event. [ 41 ] Although there was a significant time gap between when the accused spoke with counsel and when the statement was taken there was nothing that occurred in the intervening time to remedy the breach.

For example, the accused did not consult further with counsel under circumstances that he knew to be private and confidential. The taking of the statement is not sufficiently remote to preclude its exclusion under s. 24(2) . [ 42 ] This branch of the Grant test tends to favour exclusion of the statement. C. Society’s interest in an adjudication on the merits [ 43 ] There is no issue that the accused is responsible for the death of the victim. The issue at trial will be whether the accused is guilty of manslaughter or second-degree murder.

The evidence sought to be excluded is not the foundation of the Crown's case. The accused will be prosecuted and likely found guilty of a very serious offence regardless of whether the disputed evidence is available to the Crown. The exclusion of the evidence will not preclude the case being adjudicated. [ 44 ] The reliability of the evidence must also be considered. A statement is not like physical evidence which may be objectively assessed to be reliable. A statement is subject to

interpretation, explanation, misperception, and personal bias. [ 45 ] The societal interest in having a trial in relation to such a serious matter is high. However, exclusion of the statement does not bring a halt to proceedings, nor does it preclude adjudication on the offence as charged. VI. CONCLUSION [ 46 ] I am satisfied that in all the circumstances admitting the statement would bring the administration of justice into disrepute. Dated at the City of Iqaluit this 14 th day of February 2020. ___________________ Justice S. Cooper Nunavut Court of Justice