R. v. Salomonie, 2014 NUCJ 16

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Salomonie , 2014 NUCJ 16 Date: 20140704 Court File: 08-11-318 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jeffery Salomonie ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): P. Bychok , D. Garson Counsel (Accused): J.

Morton Location Heard: Iqaluit, Nunavut Date Heard: March 18-21, 2013; June 6, 2013; December 16, 2013; March 18, 2014 Matters: Voir dire regarding the voluntariness and admissibility of statements made by the accused to police REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) DISCLAIMER PAGE Restriction on Publication :

By court order made under section 648(1) of the Criminal Code : “After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict .” [Special Notice: This publication ban extends as follows: To the subject of the voir dire itself, (for greater clarity: to the issue before the court); to the evidence heard and exhibits filed in the voir dire; and to the submissions of counsel during the voir dire] Publication ban lifted as of 04/12/2016 at the direction of the authoring justice.

Table of Contents REASONS FOR JUDGMENT .. 1 I. INTRODUCTION .. 5 II. Background . 6 III. The Interview .. 8 A. Respecting

part 1 . 9 B. Respecting

part 2 . 16 C. Respecting

part 3 . 17 (i).Respecting

part 3(a), conducted by Briers for a period of roughly 55 minutes, before the arrival of Baines 17 (ii). Respecting

part 3(b), conducted by both Briers and Baines for a period of approximately 30 minutes until Briers leaves the interview room ... 20 (iii).Respecting

part 3(c), conducted by Baines for approximately 30 minutes until Townsend enters the room, and Baines leaves. 24 (iv.) Respecting

part 3(d), conducted by Townsend, for the last 2 and ½ hours of the interview, from 12:01 am (midnight) until approximately 2:30 am ... 26 IV. The Law .. 32 V. The Position of the Parties . 36 A. The Crown . 36 B. The Defence . 37 VI. ANALYSIS .. 39 A. English as the language of the interview .. 39 B. The issue of oppressive circumstances . 40 i. The techniques used by the police; the length of the interview; and Salomonie’s demands to be taken back to cells & his right to silence . 40 B. Regarding the length of the interview .. 43 C. The issue of fatigue . 49

(i). Salomonie’s hearing; his heart condition; his need for medication; and other comfort issues 49 D. Regarding hearing aids . 52 E. Regarding Salomonie’s medical condition . 53 F. Respecting other comforts . 53 G. A short exchange concerning Salomonie’s lawyer . 54 VII. CONCLUSIONS .. 55 ADDENDUM ... 57 I. INTRODUCTION [ 1 ] The accused, Jeffrey Salomonie, is charged with first degree murder, in relation to the death of Daisy Curley, in Iqaluit, on May 19, 2009. [ 2 ] He was questioned by police on two separate occasions. [ 3 ] The first interview was conducted a year after Ms.

Curley’s death, in June 2010, at which time Mr. Salomonie was simply a ‘person of interest’ in the case. [ 4 ] Eventually, Mr. Salomonie became the main suspect. [ 5 ] The second interview was conducted shortly after his arrest, a year after the first interview, and two years after Ms. Curley’s death, in June 2011. [ 6 ] The second interview was a long interrogation. Mr. Salomonie was questioned for approximately 12 hours. This interview was recorded on video. [ 7 ] Mr.

Salomonie said things, during this second interview, which implicated him as the perpetrator of the crime – as the one responsible for Daisy Curley’s death. [ 8 ] There is no dispute between the Crown and Defence about whether what Mr. Salomonie said to the police, when he first spoke to them as ‘person of interest’, may be admitted into evidence. [ 9 ] It is the second interview, on June 6-7, 2011, which is the subject of dispute between the parties. [ 10 ] This case is about whether the video recording of the second police interview will be admitted into evidence or not in Mr.

Salomonie’s up-coming trial. [ 11 ] A pre-trial hearing (voir dire) was held to resolve this dispute. [ 12 ] The only viva voce testimony was that of Sgt.

Bruce Briers; he presented the video of Salomonie’s interview and was also questioned briefly by counsel. [ 13 ] There was no further evidence from either the Crown or Defence. [ 14 ] As a practical matter, Defence counsel was clear that I should be able to reach a decision, respecting the admissibility of the interview, simply by viewing the recording of the interview. [ 15 ] Counsel was also clear that there are no Charter issues respecting the admissibility, at trial, of the interview. [ 16 ] Therefore, the only question left for me to decide is the admissibility, at common law, of the interview. [ 17 ] In this case, the issue is “voluntariness.” [ 18 ] The common law says that only a “voluntary” statement or confession made by a person to police can be admitted into evidence at that person’s trial. [ 19 ] The Supreme Court of Canada has set out criteria which must be applied to determine whether, as a matter of law, a statement or confession meets the test of voluntariness . [ 20 ] I have applied these criteria to the interaction between Mr.

Salomonie and the police during the second interview, on June 6-7,

2011. [ 21 ] I decided that the interview passes muster respecting the test to be met, and that the statements made by Mr. Salomonie were, as a matter of law, made voluntarily. [ 22 ] Accordingly, the video recording of the interview may be admitted into evidence at Mr. Salomonie’s trial. II. Background [ 23 ] On May 24, 2009, Daisy Curley was found dead and alone inside her locked house, lying on the floor in the living room. It was obvious she had been badly beaten. [ 24 ] Ms.

Curley had not been seen, for several days, prior to May 24, 2009. [ 25 ] Her relatives and closest friends had been unable to contact her. She had not been answering the phone, nor responding when people knocked at her door. [ 26 ] Eventually, on May 24, 2009, one of her brothers forced entry into the house, saw his sister’s body, and summoned the police. [ 27 ] Jeffrey Salomonie is a life-long resident of Cape Dorset. [ 28 ] He had a medical appointment, in Iqaluit, scheduled for May 19, 2009.

In order to get to the appointment, he travelled from Cape Dorset to Iqaluit, on May 18. [ 29 ] He was in Iqaluit and stayed at the Frobisher Inn from May 18, 2009, until May 20, 2009, when he flew back to Cape Dorset. [ 30 ] All of this travel and lodging is documented. [ 31 ] On the evenings of both May 18 and May 19, Mr. Salomonie was with some of his friends at the Storehouse bar [Storehouse] . [ 32 ] And it was at the Storehouse that he met up with Daisy Curley. [ 33 ] Eventually, police attention focused on Mr. Salomonie as one of the last people to have been with Ms.

Curley, when she was last seen, on the evening of May 19, 2009. [ 34 ] On June 4, 2010, a year after her death, two officers travelled to Cape Dorset to speak with Mr. Salomonie, who at this point, was simply a ‘person of interest.’ [ 35 ] Mr. Salomonie confirmed that he had been with Daisy Curley in Iqaluit on the evening of May 19, 2009. [ 36 ] He told the officers, however, that he had nothing to do with her death. [ 37 ] He said “she was fine when I left her.” [ 38 ] Mr. Salomonie told the officers he had “no reason” to kill Daisy Curley.

He also said “nobody deserves to die like that.” [ 39 ] During this police interview (on June 4, 2010), Mr. Salomonie agreed to provide (and did provide) a Deoxyribonucleic acid [DNA] sample to the visiting investigators, who then returned to Iqaluit. [ 40 ] Time passed. [ 41 ] Eventually, as the police investigation progressed, it showed DNA matches between the sample provided by Mr. Salomonie, and samples taken from the crime scene. [ 42 ] On the morning of June 6, 2011, officers travelled to Cape Dorset. They arrested Mr. Salomonie for the murder of Daisy Curley.

He was taken to Iqaluit, and interviewed a second time. [ 43 ] It was a long interview. Mr. Salomonie was questioned for some 12 hours, with only the occasional cigarette and restroom breaks, and one long break for 1 and ½ hours for supper and sleep. III. The Interview [ 44 ] The police interview with Jeffrey Salomonie took place on June 6, 2011, at the Iqaluit Royal Canadian Mounted Police [RCMP] Detachment in the Interview Room.

The participants of the June 6th interview are the accused, Jeffrey Salomonie [Salomonie], and RCMP officers Sergeant [Sgt.] Bruce Briers [Briers], Constable [Cst.] Joe Baines [Baines] , and Staff Sergeant [S/Sgt.] Tom Townsend [Townsend] . The interview was video-recorded and any police dealings with Salomonie ancillary to the interview, for example when he was with an officer during a smoke break, were audio-recorded.

[ 45 ] It is a three-part interview. It begins on the evening of June 6th and concludes on the early morning of June 7th. The three parts are as follows: a.

Part 1 : Commences in the early afternoon and is approximately 5 ½ hours. It is conducted by Briers from 12:57 pm until 6:19 pm. At 6:19 pm, Salomonie is given a 10 minute cigarette break; b.

Part 2 : Commences after the smoke break and is approximately 1 ½ hours. It is also conducted by Briers from 6:28 pm until 7:56 pm. At the conclusion of

Part 2 (7:56 pm) Salomonie is given another break of approximately 1 ½ hours for supper and to rest; and c.

Part 3 : Commences after the supper and rest break, and is approximately 5 hours. It is conducted by Briers, Baines, and Townsend, from 9:36 pm (June 6) until 2:39 am (June 7). [ 46 ] I have broken

Part 3 into the following four parts: a.

Part 3(

a) is conducted by Briers from 9:36 pm until 10:42 pm (approximately 1 hour); b.

Part 3(

b) is conducted by both Briers and Baines from 10:42 pm until 11:31 pm (approximately 45 minutes); c.

Part 3(

c) is conducted by Baines from 11:31 pm until 11:57 pm (approximately 30 minutes). Salomonie is then left alone for 5 minutes; and d.

Part 3(

d) is conducted by Townsend from 00:02 am (June 7) until 2:39 am (approximately 2 ½ hours). The total interview time, the time that Salomonie spends being questioned by police, is approximately 12 hours. [ 47 ] I pause to note a minor discrepancy in the times noted by the officers’ conducting the interview (and noted above), and the time displayed on the video recording.

It appears the officers’ watches are about 7 or 8 minutes behind the run-time listed on the video. [ 48 ] In order to ascertain whether any statements that Salomonie made during this interview meet or pass the voluntariness test, it is necessary to examine both the context of the interview as a whole, as well as its constituent parts. In this regard, I will examine the behaviour of both the police and Salomonie. A. Respecting

part 1 [ 49 ] This part of the interview is conducted entirely by Briers. It is roughly 5 ½ hours long, starting at around 1:00 pm and continuing until 6:30 pm. [ 50 ] The interview starts with some preliminary discussion. Briers confirms that Salomonie understands why he is in custody and that Salomonie has no trouble hearing. Briers also confirms that Salomonie has had the opportunity to consult personally with counsel and that he was treated well by the arresting officers who transported him to Iqaluit. [ 51 ] This is followed by a back-and-forth discussion between Briers and Salomonie.

Salomonie insisted that he be taken back to cells and said he had nothing to say. In response, Briers let Salomonie know that the questioning would continue.

[ 52 ] It is important to examine the specifics and tenor of this conversation. [ 53 ] Salomonie says to Briers “Take me back to my cell,” and states, “I was told not to answer anything…by my lawyer” (Interview Transcript,

Part 1 at p. 4, l. 29-41; Video at 13:11). [ 54 ] In response, Briers makes it quite clear to Salomonie that although he does not have to answer anything, he will not be going back to his cell: “All right, we’re not going to be doing that at this point ” (Interview Transcript,

Part 1 at p. 5, l.3 ; Video at 13:11). [ 55 ] Early in the interview that Briers makes it clear to Salomonie that “there is no doubt…that you were responsible for the death of Daisy Curley back in May 2009. But now we’re gonna talk about the reason why those things happened. What all took place back then on that particular night.” (Interview Transcript,

Part 1 at p. 17, l. 36-38 ; Video at 13:20). [ 56 ] In response to this, Salomonie says that “I’d like to go back to my cell… please.” Briers answers with, “Can’t do it bud.” Salomonie then asks why he cannot go back to his cell, and Briers responds by saying, “’Cause we have to talk about this. We’re gonna talk about what happened, and you know what, a lot of people are never given an opportunity to tell their side of the story .” (Interview Transcript,

Part 1 at p. 19, l.37 – p. 20, l.7; Video at 13:24). [ 57 ] Salomonie responds to this by saying “I have nothing to say.” In response, Briers says, “Well, that’s fine. And ya know what, that’s your right….Our rights in Canada are one of the most important things that we have. So I’m glad you understand that right, but that doesn’t mean you have the right to go back to your cell.” (Interview Transcript,

Part 1 at p. 20, l.17-25; Video at 13:25). [ 58 ] Briers continues by saying, …what I said to you when you first came in is what I’m gonna talk about with you today. I think it’s important for you to listen. I don’t care whether you say anything or to me at this point. Jeff I would rather you just listen and understand what’s happening around ya, because ya know what it’s very very important for you to understand this stuff that we’re gonna talk about, and whether you say anything to me or not, that’s up to you to decide at the end of the day. I’m not gonna make you say anything but I want you to understand what’s out there. What evidence….exists at this point. (Interview Transcript,

Part 1 at p. 20, l. 29-38; Video at 13:25) [ 59 ] Briers then tells Salomonie that, … the evidence alone doesn’t paint the picture. Doesn’t explain what happened back …when you were last with Daisy, May 19, May 20. …the evidence alone paints this cold hard picture but we don’t know what all took place in that house because the only two people that were in that house Jeff…” (Interview Transcript,

Part 1 at p. 20, l. 40-42; Video at 13:25) [ 60 ] Briers, however, does not get to finish this last sentence because Salomonie interrupts by saying, “I have no idea cause I wasn’t here in May (of 2009)… I was here in April… in May I wasn’t here.” (Interview Transcript,

Part 1 at p. 20, l. 1-13; Video at 13:25) . [ 61 ] Briers then confronts Salomonie with the fact the police can prove he was in Iqaluit in May of 2009, stating they know that he arrived on May 18 for a medical appointment on May 19, 2009. [ 62 ] In response, Salomonie makes two further requests to go back to his cell. Briers responds by saying, “…I’m not taking you back to your cell. You’re gonna stay here with me and like I say it’s important Jeff to just listen to what I wanna tell ya. You don’t have to say

anything.” (Interview Transcript,

Part 1 at p. 20, l. 24-25; Video at 13:25). [ 63 ] The tenor of the conversation between Briers and Salomonie, thus far, is not remarkable. Briers addresses Salomonie in a polite and professional manner. Salomonie sits across from Briers with his feet on the floor and with arms either folded at the chest or hands in his lap.

He is alert, nods his head indicating that he is paying attention, and despite assertions that he wants to be taken back to cells, is generally responsive to Briers. [ 64 ] Salomonie did say that he requires hearing aids, but has not used them in a couple of years because one of his children misplaced them. He adds that he has no problem hearing Briers (Interview Transcript,

Part 1 at p. 3, l,21, p. 14, l. 32-42; Video at 13:09, 13:18) . [ 65 ] Briers also made sure that Salomonie was aware that if there was anything he needed to eat or drink that he should let Briers know and it would be taken care of (Interview Transcript,

Part 1 at p. 13, l. 1-3; Video at 13:17) . [ 66 ] After a short restroom break, Briers and Salomonie chat for some twenty minutes about a number of subjects: Salomonie’s family, in particular his mother’s health; his work; cigarette smoking, drinking, and marijuana; Salomonie’s health and medical history; fishing and tuberculosis in Cape Dorset; Salomonie’s father; and about a person that Briers knew from Nain who may have worked in Cape Dorset (Interview Transcript,

Part 1 at pp. 23-42; Video at 13:31-13:50). [ 67 ] During this conversation, Briers remarks that Salomonie’s English is very good. Salomonie says that he learned English when he was about 5 or 6 years old (Interview Transcript,

Part 1 at p. 38, l. 34; Video at 13:46). [ 68 ] Salomonie also tells Briers, during this period of social chat, that he takes medication for a heart condition and that he used to use a “puffer” but no longer needs it. He explained that he had taken his medication at lunch already. Briers assured Salomonie that if he needed any further medication, it would be provided (Interview Transcript,

Part 1 at pp. 30-31, p. 36-37; Video at 13:37 & 13:44). [ 69 ] Salomonie presents as an interested participant as he chats with Briers. He engages fully, occasionally in an animated fashion, by using his hands, as the two of them talk. [ 70 ] Following this social conversation, there is a further twenty minute period of conversation where Salomonie makes at least three further requests to be returned to his cell (Interview Transcript,

Part 1 at p. 38-49; Video at 13:50-14:08). [ 71 ] Briers is firm with Salomonie that he will not be going back to cells and that he wants Salomonie to listen and understand the proof that the police have that he killed Daisy Curley: No, I’m not taking you back. You’re gonna sit here and listen to me for a while yet. Because, you know what, I don’t care whether you say anything Jeff… the evidence shows you did it. But the evidence doesn’t show why you did it. And that is all I want to talk to you about here today. And I want to make sure we talk about the truth because that’s what… (Interview Transcript,

Part 1 at p. 44, l. 1-13; Video at 13:54) [ 72 ] Once again, Salomonie interrupts Briers: “I wasn’t here on May 19, I was here in April.” (Interview Transcript,

Part 1 at p. 44 l.14; Video at 13:54). [ 73 ] Briers is firm with Salomonie during these 20 minutes of discussion, but there is nothing particularly remarkable about his tone of voice. Salomonie is equally firm with Briers in maintaining the position he was “not here” in May 2009. Salomonie sits upright in his chair with arms folded throughout this portion of the interview. He is, however, engaged with Briers. Salomonie is adamant and repeats several times that he was not in Iqaluit when Daisy was killed. Eventually, he tells Briers, “you’re wasting your time” (Interview Transcript,

Part 1 at p. 46, l. 29; Video at 13:58 ).

[ 74 ] Briers takes up this challenge by playing the recording from Salomonie’s June 2010, interview in Cape Dorset with Constables Lambe and Baines where Salomonie admits to being in Iqaluit in May 2009 (Interview Transcript,

Part 1 at p. 47; Video at 13:58). [ 75 ] Salomonie listens to the recording with his head down and arms folded. He is shaking his head and eventually covering his face with his hands. He then says, “nothing happened between me and her ” (Interview Transcript,

Part 1 p. 48, l. 36; Video at 14:07). [ 76 ] Following this denial, Salomonie says, “…I have the right to go back to my cell” (Interview Transcript,

Part 1 at p. 49, l. 8; Video at 14:07). [ 77 ] In response Briers says, “No, you have the right to be held in custody. And that’s a decision where I make the call…I know you don’t have to talk to me Jeff. I’m not asking you to say anything” (Interview Transcript,

Part 1 at p. 49, l.10-12; Video at 14:07). [ 78 ] Salomonie explains, in response, that “I’m just saying what my lawyer told me” (Interview Transcript,

Part 1 at p. 49, l. 22; Video at 14:07). [ 79 ] At this point, Briers decides to make a moral appeal to Salomonie and he begins the first of three monologues in

Part 1 of the interview. [ 80 ] The first monologue lasts two hours. Essentially, Briers pleads with Salomonie to consider discussing what happened with Daisy and why it happened. In this regard, Briers employs the various techniques that the investigators formulated in the interrogation plan. Briers suggests to Salomonie that (Interview Transcript,

Part 1 at pp. 49-74 ; Video at 14:08-16:06): • he is a good person who simply made a mistake and is not a predatory monster; • he acted quickly and emotionally, rather than rationally; he has a conscience and therefore knows right from wrong; he has the courage to be truthful; • he was the victim of a “perfect storm” (i.e. he was unable to catch a flight to Cape Dorset, was drinking, met Daisy at the bar, had a bottle of vodka, and went with Daisy to her place where usually she would not have been home alone); and • that Daisy herself had problems with drinking and liked to party. [ 81 ] Briers then plays an audio recording of Daisy’s youngest brother, Stephen, pleading with the perpetrator to confess.

Stephen suggests to Salomonie that Daisy’s family deserves closure and will forgive him. [ 82 ] This monologue has little impact on Salomonie. He leans forward in his chair, elbows on his knees, head or face buried in his hands, and he appears at times to be covering his ears. Salomonie is clearly not interested in listening. [ 83 ] Eventually, after listening for two hours, Salomonie, on his own accord, decides to just sit on the floor. Briers continues the interview and indicates he wants Salomonie to look at some photos.

Salomonie replies with “No, I had nothing to do with it… I was not here in May.” (Interview Transcript at p. 74, l.16-22; Video at 16:08). [ 84 ] Briers replies with, “Jeff, that ain’t gonna work,” and for the next hour Briers explains, in the second of his three monologues, how the evidence disproves Salomonie’s position that he was not here in May 2009. Salomonie remains seated on the floor with his elbows on his knees and his hands covering his face and, at times, his ears (Interview Transcript at pp. 74-86; Video at 16:08-1705). [ 85 ] Briers then leaves the room to fetch Salomonie a Coca-Cola [Coke].

Briers is out of the room, leaving Salomonie alone, for about 20 minutes. During this time, Salomonie remains seated on the floor sulking for another 5 minutes before getting back in his chair and sulking for the following 15 minutes, until Briers re-enters. [ 86 ] When Briers re-enters he tells Salomonie to stand up and pay attention to the time-line posted on the wall. Salomonie stands, briefly, while Briers explains how the timeline proves Salomonie was in Iqaluit in May 2009.

Salomonie remains standing and tells Briers “I’d rather go back to my cell….I’m tired” (Interview Transcript at p. 87, l. 25-29; Video at 17:20).

[ 87 ] In response Briers says, “just listen, you’re not a only up this morning for God’s sake so you’re…not that old, you’re not that unhealthy. But look….checked in at the Frobisher Inn…checked in at the hotel from your receipt…” (Interview Transcript at p. 87, l. 24- 32; Video at 17:21). [ 88 ] Salomonie then sits down, with his feet up on a chair, his elbows on his knees, his face down, and his arms covering his ears.

Briers says, “…by covering your ears, trying to ignore this situation, isn’t gonna make it go away.” Salomonie answers, “I know” (Interview Transcript at p. 88, l. 11-15; Video at 17:24) . [ 89 ] Briers continues the moral appeal to Salomonie’s conscience and notes, again, how the police can prove that he was in Iqaluit on May 19, 2009. Briers emphasizes that Salomonie has an opportunity to tell his side of the story about what happened with Daisy. Briers is also clear that he does not care if Salomonie wants to talk, but that he needs to listen to what is being said.

The talk eventually turns to what Salomonie would like for supper. During this talk about dinner, Briers asks Salomonie if he has any questions. The following interchange then takes place: Salomonie: “I’m sticking to my lawyer’s words.” Briers: “Oh no, I’m glad you understand that. I’m glad you’re ya know have a good lawyer. That means nothing to me. I don’t care whether you talk. Salomonie: “It means something to me.” Briers: “ No, it is the lawyer’s words mean something…. I don’t care whether you talk to me is what I’m saying. I don’t care.

But it’s important for you to listen…And I’m shocked that you’d…trying to cover your ears, trying to ignore the situation…And I’m just surprised…you have a good reputation in Cape Dorset. Salomonie: “They respect me.” (Interview Transcript at p. 91, l. 34-42- p. 92, l. 1-12; Video at 17:31) [ 90 ] For the next 5 minutes, Briers makes the moral appeal and reviews some of the evidence. He does so in a very low-key and patient manner.

Salomonie sits with his feet up on the chair, arms crossed or with elbows on his knees, hand on his forehead for the most part (Interview Transcript at p. 92; Video at 17:31-17:36). [ 91 ] Eventually, the talk turns to Salomonie’s life in Cape Dorset: his work, drugs, church, water delivery, and hunting. This discussion goes on for about 15 minutes. Salomonie and Briers casually chat in low tones (Interview Transcript at p. 93-102; Video at 17:36- 17:49). [ 92 ] Briers then delivers the third monologue in

Part 1 of the interview. Once again, in a very low-key and patient fashion, Briers makes the moral appeal and reviews some of the evidence. It is clear that Salomonie is listening. He is seated with his feet up on the chair, elbows on his knees, sometimes hands behind his head, sometimes resting his forearms on his knees with his face buried in his forearms. Briers asks Salomonie if he needs to use the restroom. Salomonie replies with a request for a cigarette. [ 93 ] Salomonie rolls down the sleeves of his shirt to cover his arms, and it is obvious he feels a slight chill.

Briers is, however, wearing a short-sleeved shirt for much of the interview (Interview Transcript at p. 92 -109; Video at 17:49-18:26). [ 94 ] Briers then steps out of the room to use the restroom; he leaves Salomonie alone in the room for about eight minutes, until 18:35. During this time, Salomonie buttons the sleeves of his shirt, curls up in his chair in a fetal position for a few minutes, before Briers return at 18:35.

Part 1 of the interview ends at 18:35, when Briers takes Salomonie out for a ten minute cigarette break.

B. Respecting

part 2 [ 95 ]

Part 2 of the interview is conducted by Briers. It is approximately 1 ½ hours in length. It ends around 8:00 pm when Salomonie is given a supper and rest break for 1 ½ hours. [ 96 ] As

Part 2 of the interview opens, Briers is attempting to locate a video on the computer to play for Salomonie. He asks Salomonie if he uses computers much. The two of them then engage in a short discussion about computers. Salomonie smiles as he tells Briers that “twice I ruined my hard drive” (Interview Transcript,

Part 2, at p. 7, l. 21-30; Video at 18:45). [ 97 ] Briers is unable to get the video portion of the recording to work. However, he plays a few minutes of the audio. Salomonie recognizes the voice of his cousin, Aksatunga Ashoona [Ashoona] , as she implores the perpetrator of the crime against Daisy to confess. Salomonie listens with his feet up on a chair, head down, hands in his lap. [ 98 ] Afterwards, Briers continues, over the course of the next 30 minutes or so, to make another moral appeal to Salomonie’s conscience. He does so in a quiet and patient fashion.

Salomonie sits, for the most part, cross-legged in his chair with his head down or resting his head on his hand. Briers asks Salomonie about his wife, and Salomonie chats briefly about his family. After some discussion about food for Salomonie, Briers asks, “…do you have any questions Jeff of me? Do you have any questions?” Salomonie says, simply, “No, no questions.” Briers then leaves the room briefly to arrange supper for Salomonie (Interview Transcript,

Part 2 at p. 9-14; Video at 18:45-19:18). [ 99 ] Salomonie is in the room alone for about three minutes during which time Salomonie yawns once and then curls up in his chair in a sort of fetal position. As Briers re-enters the room, Salomonie rubs his right arm, obviously to warm it. [ 100 ] For the next 30 minutes Briers continues, in a low voice and patient fashion, to appeal to Salomonie’s conscience to do the right thing and to take advantage of the opportunity to tell people what was on his mind when he went to Daisy’s place.

Briers emphasizes to Salomonie that there is a huge difference between going over to Daisy’s to have a good time, and going over to Daisy’s with the intention of hurting her. Briers reminds Salomonie that there is no question he went over to Daisy’s place, but the important question which remains unanswered is what his intentions were that night. Briers emphasizes, once again, the Curley family’s need for closure, which they can get by knowing what happened. Throughout all this, Salomonie remains curled up, sideways in his chair with his elbow on his knee, and resting his head on his hand.

He listens, but he does not respond (Interview Transcript,

Part 2 at pp. 14-21; Video at 19:21- 19:53). [ 101 ]

Part 2 of the interview comes to a close with Briers and Salomonie talking, once again, about life in Cape Dorset: country food (geese, caribou), the Bible, and beluga hunting. Corporal Sharan Sidhu and Sgt. Derek Williams enter the room to take Salomonie for his supper. Sidhu assures Salomonie that he will get his medication (the pill he takes with a meal) and asks him if he needs anything else. Salomonie asks for a blanket, saying “it’s cold in here” ( Interview Transcript at pp. 21-28, I. 9; Video at 19:54-20:04). C. Respecting

part 3 [ 102 ]

Part 3 of the interview runs from approximately 9:36 pm, June 6, until 2:39 am, June 7. This is a period of roughly 5 hours.

Part 3 is conducted by Briers, Baines, and Townsend. As noted, I have broken

Part 3 down into four distinct parts. (i).Respecting

part 3(a), conducted by Briers for a period of roughly 55 minutes, before the arrival of Baines [ 103 ] This part opens with Salomonie complaining about the food he had for supper. He says it almost made him sick. He confirms that he did have some sleep, but that he was nonetheless tired, since he usually gets up at 6:00 am and normally goes to bed between 11:00 pm and 1:00 am.

[ 104 ] Briers asked Salomonie, if, during the supper break, he had been thinking about some of the things Briers had been talking about earlier. Salomonie replied, “No, it never bothered me cause I was half asleep…and now they just woke me up.” (Interview Transcript,

Part 3 at p. 21; Video at 21:48). [ 105 ] For a period of roughly 52 minutes, Briers reviews the following important aspects of the case against Salomonie (Interview Transcript,

Part 3 at pp. 4-14; Video at 21:50-22:42). [ 106 ] Briers talks about how Daisy’s best friends and relatives had not seen her or even been able to make contact with her since May 19-20, 2009, and that Salomonie was the last one seen with her. [ 107 ] Briers tells Salomonie the police were aware that a taxi was dispatched to Daisy’s at 1:51 am on May 20, 2009, a Wednesday morning, but no one came out of the house. [ 108 ] Briers tells him it is odd that Salomonie would feel the need to tell Constables Baines and Lambe in June of 201, when they spoke with him in Cape Dorset, that Daisy was “fine” when he left her, and that “no one deserves to die like that”.

I pause to note that it appears Briers is mistaken about what year Baines and Lambe spoke with Salomonie. However, nothing turns on this. [ 109 ] Briers tells Salomonie that it is also odd that on that very day he was down by the shore, armed, and met up with his friend Steven Padluk, that he told Padluk not to bother him when supposedly Salomonie had spotted belugas because he “worried about an incident in Iqaluit.” [ 110 ] During this 52-minute monologue, Briers also appeals to Salomonie’s conscience.

Briers suggests to Salomonie that he has been living a lie for the past two years and that this lie has obviously been bothering him, since he is a good person and not a monster, as the photos of Daisy suggest. [ 111 ] Briers says he believes Salomonie never went over to Daisy’s to kill her, for example, by taking a weapon with him. Briers tells Salomonie that he must have acted purely out of emotion, and that “things just happened”.

Finally, Briers tells Salomonie that this is his opportunity to clarify that such is the case for the sake of the lives of those affected by this tragedy. [ 112 ] Throughout this entire monologue, Salomonie assumes various “huddled” positions in his chair: with both feet on chair, with one foot under his buttock, with his elbow on his knee, or with a hand on his forehead. Briers sits across from Salomonie and speaks in a patient and moderate tone, in the hope that Salomonie will respond. It is clear that Salomonie is listening, at times he nods, but he does not respond.

Briers expresses some frustration with Salomonie’s lack of response. [ 113 ] For example, Briers says, You knew you did wrong, and you ran like a scared little boy. Just like you’re doing sitting in this chair….Not the 44 year old man… that’s respected in Cape Dorset…You’re bigger than that Jeff….Now, you talk about being tired, well ya know, we’re all tired. But the one thing you could actually do actually feel that. You could feel tired. Daisy Curley doesn’t have that opportunity. I can feel tired. You’re not any different than me buddy. My goal is to get the truth.

I don’t care how long it takes, I don’t care how tired we are…The pressure that you’re putting on yourself but ya know what at least you can feel it. Nobody’s taken away your opportunity to actually feel something. As you did with Daisy. So I don’t have a lot of sympathy for you in regards to that if you’re not a little bit ahh with it….There’s the room you stayed in at the Frobisher in, 418 on May 18 and May 19. It’s all confirmed by the records from them. (Interview Transcript,

Part 3 at p. 5, l. 26 – p. 6, l. 19; Video at 21:59) [ 114 ] And later, along this same line, Briers says, That’s a terrible tragedy. Lots of people’s lives have been affected…Jeff I know you are not sleeping. I know you’re listening to every bloody word I’m saying. Again, you talk about being this reputable person from Cape Dorset. Show it. Demonstrate it. …I saw it before you left here and this foolishness about being tired and ya know what? I’ve had a long day too. I’ve been on the go since 5 o’clock

myself this morning. I don’t feel sympathy for ya in regards to that. Because you’re not having a hard day. You just might be having a bad day. All we’re doing is talking. You may not like the things I’m saying to ya but that’s all we’re doing is talking. We both get to go on past here, we both get to enjoy the next day…Daisy Curley, this girl here on this screen, will never get to see that. She’ll never get to see that emotion of being tired. (Interview Transcript,

Part 3 at p. 11, l. 24-42) [ 115 ] In making the above comments, Briers speaks slowly, in a low monotone voice, as he sits, patiently, across from Salomonie, still waiting for a response. [ 116 ] A few minutes later, and with a firmer tone of voice, Briers says, Jeff, you’ve been living a lie.

That has to be eating up inside ya…Unless you’re a monster…And you can sit there and try to hide away from the situation, cover your head, eyes, and not look at the stuff that’s in front of ya…You wanna hide away from it, pretend it doesn’t exist, say when you first came in here you said well I didn’t really hear what you were saying cause I was falling asleep. I’ll call that bullshit. Again, I’d rather you say nothing than lie to me and you understood everything I’m sayin’ to ya. At first you tried to block me out by putting your fingers in your ear which was really childlike. You’re 44 man. Not a kid.

But you referred back to when they (ed: Baines and Lambe) interviewed you… (Interview Transcript,

Part 3 at p. 14, l. 13-25; Video at 22:35) [ 117 ] None of the pleas or admonitions on Briers part seems to have any effect on Salomonie. Once again, it is clear he is listening, but chooses not to respond. [ 118 ] As Briers makes a final plea to Salomonie’s conscience, and shows a crime scene photo of Daisy to Salomonie, there is a knock on the door, and Baines enters the room. Salomonie remains huddled, sitting sideways in his chair, with one arm on his knee, head down, and with his other hand covering his eyes. Baines served as police officer in Cape Dorset back in 2005. Salomonie knows Baines. They exchange a “Hi” as Baines sits down. (ii). Respecting

part 3(b), conducted by both Briers and Baines for a period of approximately 30 minutes until Briers leaves the interview room [ 119 ] Salomonie tells Baines, “I’m supposed to be going to my room” and is clearly attempting to explain to Baines that his lawyer has told him not to say anything when Baines interrupts and says, “I understand that …but just listen to me O.K” (Melanson Supplemental Transcript [1] [Melanson Transcript] at p. 15; Video at 22:43). [ 120 ] Baines speaks in low tones to Salomonie.

He reminds Salomonie about the interview in Cape Dorset when Salomonie told Baines and Lambe about being in Iqaluit with Daisy in May of 2009, and now he says that he was “not here” in May of 2009. [ 121 ] Baines tells Salomonie about the need to be honest, honorable, and to tell the truth.

He tells Salomonie that the evidence establishes he killed Daisy, but that the Curley family and the people of Cape Dorset need to know why it happened (Melanson Transcript at pp. 1-16; Video at 22:42-22:45). [ 122 ] Salomonie remains curled up in his chair with one elbow on his knee, often rubbing his hands through his hair. [ 123 ] Baines and Briers decide to play the “Ashoona” video. In the video, Salomonie’s cousin, Aksatunga Ashoona, makes a compelling and emotional plea, in English, to the person who killed Daisy, whomever that person may be, to confess to the crime.

She reminds the perpetrator of some basic tenets of Inuit culture such as respect for elders and the need to honour elders by being honest. She says that confession is the right thing to do for “your” family as well as Daisy’s family. She says that there are professional people who can help, but that harmony and healing can only be restored by talking (Melanson Transcript at pp. 16-18; Video at 22:52-23:02). [ 124 ] Salomonie indicates that the volume is too low for him to hear. He says he requires hearing aids on both ears, and that he is really hard of hearing.

Baines fetches some earphones, which he offers to Salomonie who puts them on. Salomonie listens to Ashoona for some 10 minutes with his head down, holding the earphones in place (Melanson Transcript at p. 17; Video at 23:02-23:13).

[ 125 ] He then hands the earphones back to Baines and says, “What she is saying is the truth, very true. What she’s saying is true…that is definitely the way culture. But we are not talking in our culture in here…we are following the paper in here.

What Ashoona says is true.” (Melanson Transcript at p. 19; Video at 23:13). [ 126 ] Baines replies by saying, “OK.” Salomonie then says, “even though I really don’t think I’m the one to blame Joe.” (Melanson Transcript at p. 20, l.1,3; Video at 23:13). [ 127 ] For the next 5 minutes (Video at 23:13-23:18) Salomonie tells the officers about what he says he can remember from that night, being with Daisy. He is sitting upright in his chair with his feet still on the chair, but he is facing both officers and engaging them (mostly Baines) in his story.

Sometimes Salomonie is scratching his head, and occasionally he is using a hand to accompany his speech. [ 128 ] Salomonie’s story is, as follows: I remember a voice, I recall someone entering….I can’t tell if the voice is male or female though…I can’t tell because I’m hard of hearing…I think it was the taxi guy, did I say there was a taxi guy at 1:51…I don’t think it was me, I left there, someone came in and we moved. We were standing, it turned out she heard a voice…I don’t know if it was a man or a woman. Someone entered. I didn’t see who it was.

I was passing out when someone entered….I remember…after Joe and who was the other guy…They were in Dorset after they were there I started to think clearly so I remember a voice that, I remember the voice but I don’t know if it was male or female. ..It was then that I was passing out when someone entered…It was shortly after we arrived that I passed out…I remember a voice but I can’t tell if it’s male or female.

It was probably that taxi guy…I started remembering, after you guys were there (Ed : police officers in Cape Dorset) I was thinking about it…I remember hearing a voice, when I was really trying to remember. (Melanson Transcript at pp. 19-22; Video at 23:13-23:18) [ 129 ] Briers then asks, “So, when you woke up from your blackout what did you see?” Salomonie responds, with hand gestures to demonstrate his point, by saying, “ I she was ahh Daisy was right here beside me on the couch.” Briers answers by saying, “No. That’s not true.” Salomonie then says, “I say it because it was like that”.

Baines says, “No, That’s not true Jeff,” and Briers says, “You know that Jeff. You’re coming a long way. But that’s not true. When you left to go home Daisy was on her - I showed you on that picture. She was on the ground.” Salomonie once again curls up in his chair and Baines reminds Salomonie that Ashoona said to tell the truth. Salomonie replies by saying, “I am saying the truth” (Melanson Transcript at p. 22, l. 7-9, 11, 13, 15, 16-19, 23; Video at 23:18). [ 130 ] For the next 13 minutes (Video at 23:18-23:31), both Briers and Baines review various aspects of the evidence.

They do so in a firm, but calm fashion. They direct Salomonie’s attention to the computer screen to show various aspects of the evidence, including a photo of where Daisy was found on the ground. [ 131 ] In turn, Salomonie watches, and listens. He remains curled in the chair with his head down, occasionally looking at the computer when directed and sometimes running his hands through his hair.

Eventually, he puts his feet back on the ground and looks away from the officers with his elbow on the chair and his forehead leaning on his hand. [ 132 ] Among other things, Briers says, You’re trying, but you gotta try harder…You left part of you on that thing you used to hurt Daisy…This thing about blacking out doesn’t wash with me.

Because I know there’s no question you remember….you probably wanna forget…You may want to but you left part of you behind on that thing you used to hurt Daisy…Daisy was right here when she was found when you left…Right underneath the front window and on the ground by the coffee table. Same place as she was found on the 24 th when Steven and Billy went in. You’ve come a long way. You’re trying but I don’t want you to tell me something that’s not the truth. It’s the truth at the end of the day is what I’m looking for…But when you woke up, if you even woke up, she wasn’t on the couch beside ya.

She wasn’t talking and fine when you left that house that morning… (Melanson Transcript at p. 22, l. 27-p.23, l.8; Video at 23:21) [ 133 ] Briers directs Salomonie to the crime scene photo and says, “but Jeff, this is where she was. Look at it. Don’t be afraid to look at it…that’s where she was at. How did she get to that position. What happened that got here there” (Melanson Transcript at p. 23, l.8-18; Video at 23:22) . Salomonie looks at the photo, and shrugs. [ 134 ] Briers continues, in a firm, but calm fashion, by saying,

You know. There’s no doubt about that buddy…Cause you left part of you behind…Jeff you could try to hide away from this…You haven’t been honest with yourself, you haven’t been honest with the people close to ya and you certainly haven’t been honest with anybody associated with Daisy Curley….I’m being honest with you. I call what you said a little while ago bullshit...I don’t wanna hear some stuff that’s not the truth. She wasn’t on the couch when you woke up and left…Maybe she was on the couch when you woke up. I don’t know. I wasn’t there. But I can tell you she wasn’t fine when you left.

You are the only one who can fit in those pieces, those blanks. Kind of put some understanding into what all happened then. Blacking out, that’s a coward’s way out….And I didn’t get the idea that you were a coward before you got into this room. You’re kind of portraying yourself as coward here today…the way you’re acting, the way you’re sitting…Covering your ears, covering your face. ….I’m gonna leave you with Joe for a second I’ll be back. (Melanson Transcript at pp. 23-25; Video at 23:22-23:31). [ 135 ] Briers leaves Salomonie alone with Baines in the interview room. (iii).Respecting

part 3(c), conducted by Baines for approximately 30 minutes until Townsend enters the room, and Baines leaves. [ 136 ] Baines speaks slowly and calmly to Salomonie. Salomonie remains slouched in his chair with his head down, his elbow on the arm of the chair, and his head resting on his hand. Baines reminds Salomonie of the June 2010, interview in Cape Dorset. I pause to note that Baines, like Briers, has confused the date (year) of the interview, however, nothing turns on this. [ 137 ] Baines explains how, when he went to Dorset, he spoke with Steven Padluk. Salomonie is listening at this time.

Baines reminds Salomonie that Padluk says Salomonie told him that he was worried about an incident in Iqaluit. Salomonie argues with Baines, saying that Padluk is mixed up and that he actually told Padluk “…I don’t want anything to happen to me over something I’m not to blame for… I don’t want to be arrested for something that I did not do.” (Melanson Transcript at p. 25, l.17-p.26, l.1; Video at 23:33) . Baines tells Salomonie that Salomonie thought he was going to be arrested when the police came to Dorset, and that’s why Salomonie took a gun down to the shore.

Salomonie remains slouched in the chair with his elbow on the chair arm, his head in his hands, turned, for the most part, away from Baines. He sips on a Coke. He does not look interested in listening to Baines. [ 138 ] Baines suggests to Salomonie that “something made him snap” when he was with Daisy. He asks Salomonie to look at some photos. Salomonie replies by saying, “I’m not supposed to answer.

I’m supposed to be in the room [cell].” (Melanson Transcript at p. 26, l.26; Video at 23:39). [ 139 ] Baines ignores this and patiently references more evidence, telling Salomonie that he knows exactly where Daisy was when he left the house. Baines wants to know what got Salomonie so angry at Daisy. He suggests to Salomonie that he locked the door because he didn’t want anyone to find Daisy in such a bad state. [ 140 ] Baines tells Salomonie how the Curley family has been suffering for the last 2 years, not knowing what happened.

He tells Salomonie that Daisy’s brother talked about forgiveness and that Salomonie has the strength to let the family know what happened. [ 141 ] Baines is quiet, patient, and persistent with these themes. He tells Salomonie about the need to let the truth come out because it is “killing you, having it inside you.” He says that everyone, including Salomonie, needs to move on. He tells Salomonie he has the strength to let the secret out. Salomonie remains slouched in chair with his head down and his hand on his forehead. Baines says, “…am I right? The things I said…go ahead, you can tell me.

You know me right” (Melanson Transcript at p. 27, l.21; Video at 23:39). [ 142 ] Salomonie’s response is, “ I have the right to remain silent.” (Melanson Transcript at p. 27, l.23; Video at 23:39) . [ 143 ] For another few minutes, Baines continues in the same quiet, patient manner and with the same themes, particularly with the impact of Daisy’s death on the Curley family. He asks, “Why did it happen… Something happened that made you mad…Something that really hit you in the heart…You had enough….You couldn’t control it anymore.

You went over the edge…” (Melanson Transcript at p. 27, l. 25-38; Video at 23:51-23:53). [ 144 ] Salomonie remains slouched in the chair, as before. [ 145 ] Finally, Baines pulls his chair closer to Salomonie. He puts his left hand on Salomonie’s shoulder and pleads with Salomonie in quiet hushed tones, “Jeff, Jeff, do you hear me? Tell me…I know it’s gonna be difficult, hard, come out, it needs to come out.”

(Melanson Transcript at p.27, l.38-41; Video at 23:53-23:54). Baines has his hand on Salomonie’s shoulder in this fashion for about two minutes. (Video at 23:53-23:55). It appears not to phase or upset Salomonie in any way. He remains, as before, slouched with his head down, forehead in hand, and he sometimes breaths deeply as Baines pleads with him. [ 146 ] Baines says “Do it for yourself. Your family. Daisy’s family, you can move on, get some closure…And I know you have the strength. You’re strong. You know about the Bible.

Just pray to God every day and for strength and ask for forgiveness.” (Melanson Transcript at p. 27, l. 40-p. 28 l.; Video at 23:56). [ 147 ] Salomonie remains, as before, slouched, not responding to these pleas. Eventually, Baines relents and steps out of the room, telling Salomonie that he will be back. [ 148 ] For the next five minutes, Salomonie is in the room alone. He once again curls up in his chair with his arm on the chair back, his forehead resting on his forearm, and with the back of his hand covering his eyes.

He rubs his eyes once, and snaps his fingers a couple of times. [ 149 ] Baines then re-enters the room with S/Sgt. Townsend and introduces Townsend to Salomonie before he leaves. (iv.) Respecting

part 3(d), conducted by Townsend, for the last 2 and ½ hours of the interview, from 12:01 am (midnight) until approximately 2:30 am [ 150 ] Townsend offers a handshake to Salomonie and asks him how he is doing. Salomonie responds by shaking hands with Townsend, who then sits down opposite Salomonie. [ 151 ] Townsend tells Salomonie to take his feet off the chair and to sit up straight.

Salomonie does so unremarkably and without complaint. [ 152 ] For the next 30 minutes (Video at 00:03-00:29), Townsend engages in a monologue, during which Salomonie makes some minor commentary, and from time to time nods to acknowledge what Townsend is saying. [ 153 ] Townsend presents differently than Briers and Baines. First, he is older and dressed in a business suit. On the one hand this might be a signal of authority to the person being questioned.

However, from viewing the recording, it is clear that Salomonie is simply more comfortable talking with Townsend than with the other two interviewers. [ 154 ] Townsend’s style of questioning is different from the mostly slower-paced approaches of Briers and Baines. [ 155 ] Townsend’s voice, during this monologue, is a firm and business-like monotone, often without pause, in a staccato approach. He is not, however, in any way aggressive.

His voice is not loud, although at times he is slightly animated; for example, when showing Salomonie the evidence timeline. [ 156 ] It is clear that Salomonie is paying attention. He sits straight up, sometimes with arms folded, sometimes not, and sometimes his jaw is resting in his right palm. [ 157 ] During this 30 minute monologue, Townsend makes persistent reference to many of the main themes covered by the previous interviewers, but with particular emphasis on Salomonie’s intent that night, his intent when he went over to Daisy’s, and his intent when he harmed her.

[ 158 ] Townsend tells Salomonie how the investigation shows he is responsible for the killing, in particular he points to Salomonie’s DNA that was left on the object used to hit or kill Daisy with. Townsend reminds Salomonie that this is an important day in his life, and that he was “dismayed” from watching the interview thus far that Salomonie does not appear to be taking it serious enough (Interview Transcript,

Part 3 at p. 29, l. 21; Video at 00:09). [ 159 ] He tells Salomonie that his DNA was left at Daisy’s because Salomonie must be a good person who made a mistake, not a predatory person who went over to Daisy’s place with the intent to hurt her. Townsend says, for example, “…you didn’t take a weapon with you, right?” and Salomonie ‘nods’ as if to agree that he did not take any weapon with him to Daisy’s place (Interview Transcript,

Part 3 at p. 29, l.35; Video at 00:10). [ 160 ] Townsend tells Salomonie that only he can tell that side of the story, namely, what he intended that night, but that Salomonie is a good man who can muster the courage to tell the truth (Interview Transcript,

Part 3 at p. 29-31; Video at 00:11-00:15). [ 161 ] Townsend asks Salomonie to “show me your hands,” which Salomonie does. Townsend then takes Salomonie’s hands into his own, momentarily, and tells Salomonie that his hands are the hands of a good working man, the hands of a man doing his best in life, but that once in a while his hands can do something that he regrets later and “…that’s what happened at Daisy’s that night”. Townsend continues, and says, “I know this is true, if you could take that moment I know you would, wouldn’t you.” Salomonie responds by nodding in the affirmative (Interview Transcript,

Part 3 at pp. 31, l. 38, 32, l. 36; Video at 00:16-00:17). [ 162 ] This allows Townsend to segue into another theme with Salomonie, namely, that the knowledge he killed Daisy has been dragging him down for the last two years because, unlike predatory offenders, he has a conscience.

Townsend suggests that since Salomonie has a conscience, he should take advantage of the opportunity to tell the truth about his intentions that night. [ 163 ] Townsend reminds Salomonie that the evidence paints a pretty cold picture of what he intended that night and only Salomonie is capable of filling in the most important piece of the puzzle, namely, that he did not mean to kill Daisy that night. Townsend suggests that perhaps a whole series of events, a perfect storm, just fell into place which eventually led or allowed Salomonie to simply make some bad choices.

Salomonie listens to all of this with his hands in his lap and his head down, but occasionally he nods his head in apparent agreement with things that Townsend is saying. [ 164 ] This is a turning point in the interview. Townsend says, You’re one of those good people that made a mistake. Jeffrey, if there’s nothing else you have to talk about your intentions that night. OK? Cause Daisy ended up dead. She ended up hurt really bad….As far as I’m concerned, look at me here, you didn’t take a weapon with your there, correct? (Interview Transcript,

Part 3 at p. 34, l.38; Video at 00:28) [ 165 ] In response to this question or proposition, Salomonie nodded in the affirmative, indicating that he took no weapon. [ 166 ] The following interchange then takes place: Townsend: …I’m glad to know that your intentions were not to hurt her that night, Correct? Salomonie: Say again? Townsend: I’m glad to know you told me your intentions weren’t to hurt Daisy right? Salomonie : I wasn’t (inaudible) I didn’t, I wasn’t trying to hurt anyone. (Interview Transcript,

Part 3 at p. 35, l.1-17; Video at 00:29)

[ 167 ] From this point (12:30am) until the end of the interview (at around 2:30am), and as can be seen in the roughly one hundred pages of transcript, Salomonie talks freely and openly about what happened that night with Daisy, at least he says, as best as he can remember. [ 168 ] The discussion between Townsend and Salomonie is a question and answer forum. Townsend is patient with his questions, even when challenging Salomonie about his lack of memory about a weapon. [ 169 ] Indeed, Townsend is sympathetic in his approach to Salomonie.

For example, during one discussion about what “mistakes” Salomonie thinks he made that night (i.e. meeting Daisy, going to her house, and hurting her), Townsend takes Salomonie’s hand and pats him on the shoulder. Salomonie is receptive to this and willing to cry on Townsend’s shoulder as the two of them talk for a couple of minutes about Salomonie’s “mistakes” (Interview Transcript,

Part 3 at p. 38-40; Video at 38:19-40:34). [ 170 ] Salomonie, unlike his previous docile state, presents as a full participant in the discussion. Salomonie talks about how he knows Daisy, how they met that night, what they talked about and how much they drank at the bar, where they went afterwards, how they got to Daisy’s place, and finally, what he remembers happened at Daisy’s place. [ 171 ] Salomonie shows no hesitation answering Townsend’s questions, even, at times, offering small narration.

For example, when talking about his clothing on the night he met Daisy, he said he wore Maple Leafs hockey shirts and caps because he is a Leafs fan and hopes his team will make the playoffs. During a cigarette break, he talked with Townsend about snowmobiles and about how he made friends with the police back home in Cape Dorset (Interview Transcript,

Part 3 at p. 81, l.25-37; Video at 01:25; Interview Transcript,

Part 3 at p. 70, l.28 (audio recorded only)). [ 172 ] Throughout this two hour discussion Salomonie is seated upright in his chair, sometimes with his arms folded, sometimes with hands in his lap, and occasionally, he leans forward to talk with Townsend. Approximately halfway through this discussion Townsend asks Salomonie, “would you like a glass of water or anything? Is there anything you need?” Salomonie’s only reply is, “I’d like a cigarette.” (Interview Transcript at p. 66, l. 7-9; Video at 01:07). [ 173 ] Salomonie’s story is basically as follows.

He knew of Daisy, but had not met her before that weekend when they met at the bar along with some mutual friends. On the evening of May 19, they had quite a bit to drink at the bar and, afterwards, they went briefly to Salomonie’s hotel room, where he had kept a bottle of vodka. They took the bottle and went to Daisy’s place. He remembers dancing with Daisy in the kitchen, and touching her over the clothes as they danced, but he passed out shortly after they got there. When he woke up, he saw Daisy, naked and injured, lying on the floor in the living room.

Her face was badly beaten; he says she was alive and moaning. Nonetheless, he decided to have sex with her, took down his pants, and had intercourse. Afterwards, he panicked, began cleaning blood up from the kitchen floor, and left the house (in the early morning hours of May 20), probably locking the door. He went back to his hotel and ditched some of his clothing. He returned to Cape Dorset later in the day, and eventually got rid of some other clothing, including his shoes.

In 2010, a year later, when the police came to Cape Dorset and were looking for him, he was thinking of suicide and went down to the shore with a rifle and a single bullet. His memory about what happened with Daisy is poor because of how much he had to drink before he passed out that night. He believes he hurt Daisy, very badly, he thinks he used his hands, and he does not remember using any object as a weapon to hurt her. [ 174 ] At one point during the interview, immediately after the cigarette break, Townsend leaves the room for two minutes, leaving Salomonie alone.

Salomonie can be seen on the video, leaning forward, crying, and saying “sorry” (Video at 01:19-01:21). [ 175 ] There are a number of things that Salomonie said which are of particular note. [ 176 ] Salomonie agrees with Townsend that it feels good to tell the truth (Interview Transcript,

Part 3 at p. 45, l.36-42; Video at 00:46). [ 177 ] Townsend interrupts Salomonie’s discussion about Daisy’s house to inquire if he is treating Salomonie alright. Salomonie says,

“yeah,” and returns Townsend to the topic being discussed by saying, “That’s when I left.” (Interview Transcript at p. 52, l.19-28; Video at 00:54). [ 178 ] Townsend asks Salomonie, “..if you could say something to Daisy’s mother what would you say to her?” Salomonie replies, “I would say sorry….I never thought about doing this to her.” Townsend then says, “…I feel sad for you too. I really do.” In reply Salomonie says, “I cry about it every day.” (Interview Transcript at p. 62, l.15 – p. 63, l.3). [ 179 ] Salomonie tells Townsend that he passed out.

He says when he woke up he saw Daisy, badly beaten, lying on the floor naked. He tells Townsend that he then had sexual intercourse with her.

But he says when he first woke up and saw Daisy, he did not know, at first, who she was because she was so badly beaten that she was “unrecognizable” (Interview Transcript at p. 101; Video at 01:45). [ 180 ] Salomonie is adamant with Townsend that he cannot remember picking up any object to use as weapon against Daisy and says, “if I remembered I’d tell you, I’m telling you everything I know.” He says, “…I thought I was using my hands…I don’t remember having anything.” (Interview Transcript,

Part 3 at p. 115, l.29; Video at 02:09; Interview Transcript,

Part 3 at p. 128, l.24; Video at 02:23). [ 181 ] Townsend continues with this inquiry, and says, “Oh, it wasn’t your fist, it well you may have used your fists, I don’t know. But you used something else too.” Salomonie says only, “I have no idea what I used.” (Interview Transcript,

Part 3 at p. 133, l. 15-27; Video at 02:28). [ 182 ] As the interview comes to an end, Townsend asks Salomonie whether what he said tonight is the truth. In reply Salomonie says, “Everything I remember is there one hundred percent.” (Interview Transcript,

Part 3 at p. 135, l. 1-5). [ 183 ] Finally, Townsend again decides to ask Salomonie how he has treated him during the course of the evening. In reply, Salomonie says, “you’re a bully”. Townsend asks Salomonie to explain how he has been a bully. Salomonie says, “cause I’m supposed to stay silent”. Salomonie articulates this further by saying that he wasn’t listening to Briers, but that when Townsend came in Salomonie was no longer silent (Interview Transcript,

Part 3 at p. 136, l. 38-41; Video at 00:35). [ 184 ] This rather odd conversation continues, as Townsend tries to elicit from Salomonie what he may have done to make Salomonie use the word “bully”. Eventually, Salomonie abandons this train of thought and says, “you’re a good man” (Interview Transcript,

Part 3 at p.135-138, Video at 00:35). Townsend then tells Salomonie “C’mon and I’ll walk ya downstairs. The time is…2:33 by my watch.” In reply Salomonie says, “Is there time I can have one more cigarette.” Townsend says, “yeah.” (Interview Transcript,

Part 3 at p. 141, l.1- 3; Video at 02:40). IV. The Law [ 185 ] I must decide whether the interview complies, at common law, with the modern day confession rule as articulated by the Supreme Court of Canada in R v Oikle, 2000 SCC 38 , 147 CCC (3d) 321 . [ 186 ] The law requires that before any admission or confession to police may be considered voluntary there are a number of criteria which must be met: i.

It must be clear that the admission or confession was made by a person with a fully operating mind. (For example, a sober person, conversant in the language of the interview, and with an apprehension of the consequences of making a confession.) ii. It must be clear that the admission or confession must not have been obtained by any ‘hope of favour.’ (For example, a quid pro quo arrangement whereby, in exchange for a confession, the police promise that things will ‘go easier’ in Court.)

iii.

It must be clear that the admission or confession was not obtained under ‘oppressive circumstances’. [ 187 ] “Oppressive circumstances” cover a wide range of activities: express or implied threats, sleep deprivation, enforced physical discomforts, excessively prolonged interrogations, or inappropriate questioning techniques designed to put psychological pressure on the suspect in order to get him or her to confess. [ 188 ] At the heart of the modern day confession rule is the notion that a confession which passes the test of voluntariness is more likely to be true than not. [ 189 ] In most cases, this examination means that the Court must ensure that the statements or confession have not been made or obtained as a result of oppressive circumstances. [ 190 ] A confession which is obtained under what the Court considers oppressive circumstances, even where the suspect is of sound mind, raises the prospect that the confession might not be true. [ 191 ] In turn, if such a confession is admitted into evidence, it might contribute or cause the injustice of a wrongful conviction. [ 192 ] Such a prospect is most evident where, as a result of lengthy and aggressive questioning, the suspect gives a confession with little or no narrative or story at all; he or she merely agrees to, or accepts, what the police say took place. [ 193 ] It is not, however, the likeliness of the truth of a confession which determines whether it will be admitted into evidence. [ 194 ] For example, a full narrative confession given by a suspect will not be admitted into evidence if it is obtained under oppressive circumstances – even if the truth of the confession could be verified by other evidence. [ 195 ] In such a circumstance, the ‘good’ of obtaining and admitting such a confession into evidence is outweighed by the ‘bad’ of condoning unacceptable police behavior. [ 196 ] However, the law allows the police to persist in questioning an accused person despite his or her protestations, to a certain extent, and with clear constraints on their behavior. [ 197 ] For example, it is quite common in more serious crimes, and where much evidence has been gathered, that the police will take considerable time explaining to the suspect how strong the case is against him or her. [ 198 ] In reviewing the evidence, the police might suggest that essentially, the ‘gig is up’, and that now is the time for the suspect to accept responsibility and explain ‘why’ he or she committed the crime. [ 199 ] There is nothing objectionable about this approach provided the police are honest and upfront about the evidence.

They may even hold back certain aspects of the evidence in the hope that the suspect will incriminate himself or herself. [ 200 ] But the police must not resort to trickery, such as lying about the evidence. [ 201 ] Where the police use such trickery, it does not just undermine the suspect’s right to silence. [ 202 ] Such police behaviour may also amount to conduct which would shock the community, and thus bring the administration of justice into disrepute. [ 203 ] For example, it is easy to see how either a mentally challenged but innocent suspect or a suspect with little memory of events due to intoxication, might easily say, “okay, I did it” when the police present him or her with a mountain of false evidence. [ 204 ] Therefore, it is important that the impugned statement pass the test of procedural fairness. [ 205 ] The law also allows for the police to make so-called moral appeals to the suspect’s conscience in the hope that he or she might confess. [ 206 ] Sometimes the police may illustrate a particular moral thread or theme with an anecdotal story. [ 207 ] While there is nothing objectionable about the use of so-called moral appeals to the accused to get him or her to confess, the police must be cautious. [ 208 ] They must not, for example, either directly or through people they enlist, minimize the crime that has been committed; thus inducing the suspect to confess on the basis that “if the crime is not that serious, then the penalty might not be”. [ 209 ] As well, it is not uncommon in more serious cases for the police to play audio or video recordings to the suspect; for example, a victim’s statement that was made to the police or a message from family members of the victim, or even messages from the relatives of the suspect. [ 210 ] Some of these people may implore the suspect to tell the truth in order to allow closure for the victims involved and healing for the suspect.

These recordings often hold out the prospect that the suspect might, by confessing, be forgiven by the victim(s), the

community, or even the deity. [ 211 ] Again, however, this is an area where the police must be careful: if the particular person chosen to assist the police has significant family or social ‘power’ over the suspect, then the prospect of a confession obtained as a result of ‘undue influence’ becomes real.

In turn, such a confession would not likely pass the test of voluntariness. [ 212 ] The police are not required to stop questioning a suspect or accused person in their custody simply because he or she demands it, or because the suspect remains silent, or demands to be taken ‘back’ to their cell. [ 213 ] The police may persist.

But there are limits. [ 214 ] For example, there may come a point where the Court is of the view that the police have crossed the line and the suspect may have given a stress-induced confession simply to end the questioning. [ 215 ] Today, particularly respecting major crime investigations, it is routine for the police to video record their interviews with the accused so that the Court is able to see and hear the entire interview in ‘real time’. [ 216 ] There are a number of factors which the Court considers in determining whether the obtaining of a confession by police was done under circumstances that are so oppressive that the confession should be excluded from evidence. [ 217 ] The list of these factors is not exhaustive.

Typically, the Court will examine whether the police are acting in an aggressive fashion in questioning the subject. [ 218 ] Aggression can manifest itself in many ways: the police may be loud with the suspect (sometimes to the point of yelling at the suspect); they may be disrespectful towards the suspect (by crowding the suspect’s personal space, or insulting the suspect); they may present to the suspect in a physically intimidating fashion. [ 219 ] The Court will also look at the length of the interview to examine the prospect that the police are simply using the time to ‘grind down’ the suspect. [ 220 ] And, regardless of the intentions of the police, the Court will examine the video of a lengthy interview to see if the will of the suspect to remain silent, or to resist questioning, or to maintain a story of innocence (which the police do not accept as true), has been overborn by persistent police questioning, to the point where a confession appears to be the suspect’s only way to end the questioning. [ 221 ] Particularly in a lengthy interview, the Court will also examine the behavior of the suspect.

A suspect may display body language that shows he or she is not listening to the interviewers (for example by curling up in a ball) or the suspect may complain to the interviewers about how he is being treated (for example, by not being offered food or drink, or not being allowed to rest, or allowed warm clothing). [ 222 ] The Court will also examine the tone of any conversation between the police and the suspect: if the police have engaged the suspect in conversation, the Court will try to ‘characterize’ the conversation. [ 223 ] The Court will also look at the sophistication of the suspect, to the extent that it is obvious, including his or her competency in the language of the interview (separate and apart from the requirement that he or she be of sound and operating mind). [ 224 ] If the accused is clearly unsophisticated in the most general sense of the word, then the police must be cautious not to unduly take advantage of this.

For example, the police should avoid making suggestions to an impressionable suspect, which he or she readily accepts. [ 225 ] As a matter of law, it is incumbent upon the Crown to persuade the Court, at a criminal standard of proof beyond a reasonable doubt, that any admission or confession by an accused to the police was made voluntarily. [ 226 ] It is not upon the accused to prove that the statement was not voluntary.

If there is a reasonable doubt respecting voluntariness, then the statement will not be admitted into evidence. [ 227 ] However, if the Defence pleads that oppressive circumstances were used by police to obtain the confession, it is, as a both a practical and evidential matter, upon the Defence to give ‘traction’ to their position by identifying evidence which tends to show that such is the case. V. The Position of the Parties A.

The Crown [ 228 ] The Crown argues that the interview was a ‘by the book’ interview where the police followed the very ‘rules of engagement’ that they had set for themselves, from the outset, in their interrogation plan (Exhibit 6, Voir Dire Documents: Interrogation;

Part 3, p. 11). [ 229 ] The Crown suggests that the police showed respect towards Mr. Salomonie throughout. [ 230 ] Indeed, the Crown points out that Sgt. Briers said to Mr. Salomonie that he was required to treat him with respect: “In the same way I would wanted to be treated myself, if I were sitting there in your chair.”

[ 231 ] The Crown asserts that the police were not aggressive towards Mr. Salomonie during the interview, at all and, further, that they made no threats or promises, nor did they display even the slightest hint of physical intimidation. [ 232 ] The Crown argues that the police were on solid ground to persist in their questioning despite Mr. Salomonie’s numerous requests that he be taken back to his cell or his reminders to the police about his lawyer’s advice that he remain silent. [ 233 ] The Crown says the police were entitled to explain to Mr.

Salomonie how strong the evidence against him was, and to encourage him to explain ‘why’ he committed this horrific crime. [ 234 ] The Crown rejects any notion that the police showed any disrespect towards Mr. Salomonie’s counsel. [ 235 ] The Crown also says there is no substance to Mr. Salomonie’s comment that Staff Sergeant Townsend acted like a ‘bully’ – that simply saying it does not make it so. [ 236 ] As well, the Crown rejects any notion that Mr.

Salomonie had any trouble with English, or that he any trouble hearing, or that he suffered from any medical condition, or that he was subjected to questioning while too fatigued to participate. [ 237 ] The Crown says that while the interview was long, Mr. Salomonie was given sufficient and timely breaks to smoke, eat, and sleep. [ 238 ] The Crown says that the two-way free flowing conversation between Staff Sergeant Townsend and Mr. Salomonie, during the last two hours of the interview, illustrates the voluntary nature of Mr.

Salomonie’s participation. [ 239 ] Accordingly, the Crown says that the mere fact that the interview was lengthy is not fatal to the Crown’s position that Mr. Salomonie’s statements to the police were made voluntarily. B. The Defence [ 240 ] The Defence says the interview was excessively long, with the result that Mr. Salomonie’s will to resist questioning was, during the course of some 12 and ½ hours, so overborn by his interrogators that he made a number of inculpatory admissions. [ 241 ] The Defence maintains that the statements made by Mr.

Salomonie – and in particular the roughly two-hoursof conversation between Mr. Salomonie and Staff Sergeant Townsend at the end of the interview – were made as a result of questioning which should have stopped or ceased. [ 242 ] The Defence says that the “proof-in-the-pudding” for this is that the police persisted, relentlessly, with their questioning, in a firm and accusatory tone, despite Mr.

Salomonie’s numerous reminders to them that he had the right to remain silent, and despite his even more numerous demands that the questioning stop (i.e., that he be taken back to his cell). [ 243 ] The Defence suggests that Mr. Salomonie’s inculpatory statements were made as a result of undue influence: as a result of the peculiar psychological techniques employed by the police during the course of an extended interview. [ 244 ] The Defence suggests further that the police took advantage of Mr. Salomonie in many respects: • The police knew Mr.

Salomonie had limited sophistication in English, yet they conducted the interview entirely (with the most minor exception) in English and despite the fact Mr. Salomonie had told them he had a hearing problem. • They conducted a lengthy interrogation despite the fact they knew Mr. Salomonie suffered from, or had, a heart condition for which he took medication. • They gave Mr. Salomonie only minimal respite and conducted a lengthy interrogation knowing he was fatigued. • They paid no attention to Mr.

Salomonie’s comfort, when he told them he was cold and wanted a blanket. • They made a comment which had the effect of undermining Mr. Salomonie’s confidence in his lawyer. [ 245 ] Thus, says counsel, any admissions made during the interview should not be considered voluntary and should be excluded from evidence.

VI. ANALYSIS [ 246 ] In the analysis, I will once again reference the participants in the interview as simply Salomonie, Briers, Baines, and Townsend. A.

English as the language of the interview [ 247 ] It is clear, from viewing the video, that Salomonie is competent and conversant in English. [ 248 ] In his brief testimony, Briers said initially Salomonie seemed to have some difficulty understanding what Briers was saying and that it was necessary for him to repeat what he was saying. [ 249 ] However, this preliminary exchange between Briers and Salomonie had to do with legal matters, such as why Salomonie was being detained, his previous dealings with police, and access to counsel. [ 250 ] Many accused persons require plain English explanations of such matters, and Briers does a good job of explaining these ideas to Salomonie in simple terms. [ 251 ] In his testimony, Briers was clear that he did not see language as an issue during the course of the interview. [ 252 ] He particularized this by saying that if it appeared Salomonie did not fully understand something he was saying, then he would clarify it to Salomonie’s satisfact

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