R. v. Clyke, 2019 NSSC 137

SUPREME COURT OF Nova Scotia Citation: R. v. Clyke, 2019 NSSC 137 Date: 20190501 Docket: CRH 472796 Registry: Halifax Between: Her Majesty the Queen v. Christian Enang Clyke Library Heading Judge: The Honourable Justice Peter P. RosinskiHeard: February 25, 26, 27, 28, March 1, 4, 2019, in Halifax, Nova ScotiaSubject: Voluntariness of statements given to policeSummary: Mr. Clyke was a suspect in an April 29, 2011 murder. On November 29, 2016 he was in custody onunrelated matters.

He made persistent efforts to contact Halifax Regional Police, in order to havesomeone speak to him regarding a crime he wished to confess to. Constable Rainault attended, andafter providing him fulsome Charter of Rights advisement and an opportunity to exercise those rights,and a right to silence caution, he verbally confessed to the murder of Angela Hall. Shortly thereafter heconfirmed his confession during the videotaped interview with Constables Shupe and Bowers. Mr.Clyke was seen by a forensic psychiatrist on December 5, 2016. The psychiatrist was of the opinionthat Mr.

Clyke was not “fit to stand trial” that day as a result of symptoms of his schizophrenia(present since at least 2013), and he was not likely fit to stand trial on November 29, 2016. Mr. Clykehad made references to people (eg. “Cartel L”) having told him he should confess to the murder or elsethere would be consequences. Mr. Clyke did not argue that his statement was inadmissible for anyreason other than he did not have an “operating mind” at the time he gave the statement, and thereforeit was not given” voluntarily” beyond a reasonable doubt.Issues:

(1) Did Mr. Clyke have an operating mind at the material times leading up to and during the giving ofhis statements on November 29, 2016?

(2) Even if the Crown has proved beyond a reasonable doubt that he had an operating mind and thestatement would otherwise be admissible, should the court exercise its discretion and find that theprobative value of his statements are outweighed by the prejudicial effect upon his fair trial rights? Result: His statements are admissible.

(1) Based on the reasoning in R v Nagotcha, [1980] 2 SCR 714; R v Whittle (SCC),[1994] 2 SCR 914; and R v Oickle, 2000 SCC 38, the court was satisfied beyond a reasonable doubtthat Mr. Clyke was of an operating mind at the material times.

(2) This was a not a situation where Mr. Clyke’s statements could exceptionally be shown to bedemonstrably false and thus requiring them not be admitted, even if otherwise admissible- R v Pearce,2014 MBCA 70; nor using the traditional residual discretion test, was it a situation where the probativevalue of his statements was outweighed by the prejudicial effect upon his fair trial rights. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. __________________________________________________________________ SUPREME COURT OF Nova Scotia Citation: R. v. Clyke, 2019 NSSC 137 Date: 20190501 Docket: CRH 472796 Registry: Halifax

Between: Her Majesty the Queen v. Christian Enang Clyke Decision – Voir Dire (Statements to Police) Judge: The Honourable Justice Peter Rosinski Heard: February 25, 26, 27, 28, March 1, 4, 2019, in Halifax, Nova Scotia Counsel: Melanie Perry and Cory Roberts, for the Crown Jonathan Hughes, for the Defence By the Court: Introduction [ 1 ] This decision explains why I conclude that Mr.

Clyke’s two statements made on November 29, 2016 to police officers are admissible at his murder trial. [ 2 ] Most Canadians likely realize that no one will be convicted for a criminal offence in Canada, unless the accused’s guilt for the crime has been proved “beyond a reasonable doubt”. [ 3 ] However, very few likely realize that any confessions by a suspect made to police officers must also be proved to have been made “voluntarily” beyond a reasonable doubt before they can become evidence at trial against an accused. [1] [ 4 ] On April 29, 2011 Angela Hall died.

Police responded after reports of gunshots being fired at 7 – 44 Primrose Street, Dartmouth, Nova Scotia. They found the injured Ms. Hall therein. She had been shot. [ 5 ] On June 27, 2017 Mr. Clyke was charged that he did unlawfully cause the death of Angela Patricia Hall, and did thereby commit second-degree murder, contrary to section 235(1) of the Criminal Code (“ CC ”). Shortly thereafter, and while in custody he was sent for a

section 672.11 CC assessment regarding his fitness to stand trial. He was found fit to stand trial. He has elected to be tried, by a Judge and Jury, scheduled to begin April 8, 2019. [ 6 ] The Crown wishes to introduce into evidence two statements made by Mr. Clyke to police officers on November 29, 2016: 1. an (unrecorded) oral statement he made to Constable Tanya Rainault, while he was in custody on unrelated matters; 2. a video recorded statement he made to Constables Scott Bowers (Halifax Regional Police) and Todd Shupe (Royal Canadian Mounted Police). [ 7 ] Mr.

Clyke does not dispute that he was properly cautioned regarding his right to counsel and right to silence and that the informational and implementational aspects of his

section 10 Charter of Rights were respected. [2] [ 8 ] Furthermore, he does not dispute that his statements were otherwise voluntarily made, except for him not having an “operating mind”, as a result of him being in an active psychotic state at the time. [ 9 ] Mr. Clyke has been diagnosed as a person afflicted with schizophrenia. This major mental illness is a lifelong condition.

Its symptoms can be manifested as patent and latent symptoms of psychosis. [3] [ 10 ] The course of a schizophrenic illness may be adversely affected by psycho-social stress, unstructured living situations, substance (often alcohol or street drugs) abuse, and non-adherence with prescribed psychiatric medication and treatment. Depending on the circumstances, within a short-term time interval, Mr. Clyke could experience and exhibit elevated levels of psychotic symptoms, and no apparent psychotic symptoms. I have had the benefit of expert opinion evidence regarding Mr.

Clyke’s mental status at the time he gave his November 29, 2016 statements.

[11] The Court is being asked to assess whether Mr. Clyke was of an “operating mind” when he gave his two police statements onNovember 29, 2016. This task is made more challenging because Mr. Clyke’s mental status, in relation to whether he remained fit tostand trial, or had the limited cognitive capability required for him to have an “operating mind”, was not assessed by anyone with thenecessary qualifications (eg. a forensic psychiatrist) that day. Dr.

Risk Kronfli was the first such qualified person to see him thereafter –viz. on December 5, 2016. [12] I start by reminding myself that the Supreme Court of Canada has clearly rejected “an invariable rule, that inculpatorystatements made by an insane [a seriously mentally ill] person were ipso facto inadmissible” (R v Nagotcha, [1980] 2 SCR 714, at para4- see also R v Whittle, (SCC), [1994] 2 SCR 914 at para. 39). This is akin to presuming individuals are fit to standtrial.[4] [13] Thus, this decision focuses on whether Mr.

Clyke had an “operating mind” at the time he gave his statements on November 29,2016. [14] Counsel were in disagreement as to whether there is a significant difference between the statutory “fitness to stand trial” testand the “operating mind” test as articulated in R v Whittle, (SCC), [1994] 2 SCR 914 at paras. 50 – 52: “the operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accusedhave sufficient cognitive capacity to understand what he or she is saying and what is said.

This includes the ability to understand acaution that the evidence can be used against the accused. The same standard applies with respect to the right to silence in determiningwhether the accused has the mental capacity to make an active choice. In exercising the right to counsel or waiving the right, the accusedmust possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating withcounsel to instruct counsel, understand the function of counsel and that he or she can dispense with counsel even if this is not in theaccused’s best interests.

It is not necessary that the accused possess analytical ability. The level of cognitive ability is the same as thatrequired with respect to the confessions rule and the right to silence. The accused must have the mental capacity of an operating mind asoutlined above.” [15] A short recitation of the facts in that case may be helpful. Police arrested Mr. Whittle pursuant to outstanding warrants ofcommittal for unpaid fines. He was informed of his right to counsel and cautioned, but police observed he appeared to be mentallyunstable.

While in cells he asked to speak to officers and made several statements indicating that he was responsible for a murder andthree robberies. Sufficiently satisfied that he was involved the police arrested him for those offences, informed him of his right tocounsel and gave him his right to silence caution. He indicated he understood these but did not wish to contact the lawyer. He took thepolice to where he discarded the murder weapon and continued to disclose details relating to the murder and the robberies. He also madeunusual comments. He accepted the police suggestion to make a videotaped statement.

He was advised of his rights and indicated he didnot wish to speak to a lawyer. Part way through the videotaping, police stopped the process when he decided to call and consult counsel.Counsel advised him to remain silent, but he told counsel that he needed to talk to the police in order to stop the voices in his head. Hethen continued the videotaped statement and confessed to the murder. During that time, he also made several bizarre comments. At hisfirst-degree murder trial psychiatrists testified that he suffered from schizophrenia.

The judge concluded his inculpatory statements wereinadmissible because his psychiatric condition prevented him from an awareness of the consequences that would flow from giving thestatements in question and nullified any alleged waiver of his

section 10 (

b) Charter right to counsel. That latter violation resulted in hisstatements being excluded pursuant to

section 24 of the Charter. The Crown appealed. The Court of Appeal set aside the acquittal andordered a new trial which would include all of the statements made by the accused. The Supreme Court of Canada dismissed a furtherappeal by Mr. Whittle. [16] In R v Oickle, 2000 SCC 38, at para. 63 the court reiterated the reasoning in Whittle: “I agree, and would simply add that, likeoppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of theconfessions rule.

Indeed, in his reasons in Horvath, supra at page 408, Spence J perceived the operating mind doctrine as but oneapplication of the broader principle of voluntariness: statements are inadmissible if they are “not voluntary in the ordinary Englishsense of the word because they were induced by other circumstances such as existed in the present case.” [17] While the Crown suggested that the fitness to stand trial test is more stringent because before they can be said to be fit to standtrial an accused must understand “more things”, I consider the statutory “fitness to stand trial” test and the common law “operatingmind” tests to be concerned with the same limited cognitive capacity to understand, and it is only the matters which they must understandthat are different.

At their cores, both tests are oriented towards assessing whether individuals have “the mental capacity to make anactive choice” when presented with choices- per Whittle at para. 51. [18] I conclude that his statements are both admissible as I am satisfied beyond a reasonable doubt that Mr. Clyke had an operatingmind throughout the material times leading to, and including, the making of his statements to police between 1 and 6 pm on November29, 2016. [5] Background [19] Mr. Clyke had contact with police, and made statements as follows: 1. on September 4, 2016 while in custody on unrelated matters, Mr.

Clyke contacted police saying he would like to meet withan officer. Constable Andrew Landry attended to speak to him. Mr. Clyke advised him he would like to wait to talk another time; [6] 2. on November 29, 2016 while in custody on unrelated matters, between 1 pm and 1:20 pm, Mr. Clyke himself spoke to aHalifax Regional Police dispatcher, which conversation was recorded and transcribed (Exhibit VD-1-1).

He went on to give inculpatorystatements to Constable Rainault at 2 pm, and then to Constables Shupe and Bowers at 3 pm; 3. on December 6, 2016 while in custody on unrelated matters, he contacted police saying he would like to meet with anofficer. On December 7, 2016 Constables Bowers and Shupe met with him again, “as a courtesy” as they were not expecting to interviewhim further. His statements made to them at that time were not video-recorded. At this time Mr. Clyke made reference to, not being

100% sure what had happened, including whether he had shot Angela and she was dead, and that “Cartel L” who provided him details ofthe murder, told him to confess to the murder, and if he did so he would be paid $1 million upon being acquitted because they had videoshowing that he was not responsible; and also that “[Gerrell] Sheppard and AJ [Amir Jaber] are part of the operation”; [7] 4. upon his release from February 6, 2017 from custody until his reincarceration on the murder charge approximately June 27,2017 (see page 6 –7, VD-1-14 and VD-1-11), arguably relevant to this matter are that, between May 29 and June 20, 2017 while Mr.Clyke was not in custody, he left a voicemail message, and engaged in a series of telephone calls and text messages with Detective-Constable Bowers regarding the allegation that he had murdered Angela Hall. [20] The Crown and Mr.

Clyke’s counsel agreed that evidence from December 7, 2016 and between February 7 and June 26, 2017was to be admitted only to provide context in the voir dire, so that the expert witnesses and the court will have them as reference pointswhen considering whether at the time Mr. Clyke made his statements on November 29, 2016, he was of an “operating mind”. Mr. Clyke’s Arguments [21] Mr.

Clyke challenges the admissibility of his November 29, 2016 statements primarily on two bases: 1. a lack of voluntariness based on the “operating mind” test not being met – i.e., that the words he uttered could not fairly besaid to be Mr.

Clyke’s own words (i.e., because his words are “so devoid of rationality and understanding or so replete with psychoticdelusions” that he therefore did not possess the limited degree of cognitive ability required to: be aware of/understand what he is saying-R v Nagotcha, [1980] 2 SCR 714); and he did not comprehend that his statements to police officers may be used in proceedings againsthim to his detriment (see also R v Whittle, (SCC), [1994] 2 SCR 914 ) – each as a result of his active psychosis; and 2. a more novel approach premised on the reasons in R v Hodgson, (SCC), [1998] 2 SCR 449 (para. 29) andR v Hart, 2014 SCC 52 , [2014] 2 SCR 544 (and alternatively the traditional probative value/prejudicial effect test of which anexample can be found in R v Morrissey, [2000] OJ No. 4396 (Ct.Jus)). [8] [22] Regarding the novel approaches, I will repeat verbatim Mr.

Clyke’s reasoning from his July 9, 2018, filed brief: “It is a short logical step to be able to apply that same kind of judicial scrutiny (R v Hart) to other areas of the confessions rule, such asthreats or inducements by persons not in authority… it would be an almost insurmountable burden to place on the Crown to prove thatthere were no threats or inducements [from a private person]. To remedy the issue above, it would be logical for a person seeking to relyon a threat or inducement from a private person to then have the burden of showing that such threat or inducement existed.

In this way,the first part of the person in authority test is helpful for guidance… a burden placed on that person to show that there was a reasonablyheld belief that the person with whom he or she was speaking was a person in authority.

Only then will the burden shift to the Crown toshow that the statement was voluntary beyond a reasonable doubt.… What is logical in a situation where a threat or inducement wasreceived from a private party would be to have that burden changed from showing a reasonable belief that a person was a person inauthority at the beginning of that analysis, and shift it to show that there was a reasonably held belief that a threat or promise wouldoccur, after the Crown has shown that the actual statement in the presence of a person in authority was voluntary.

This would also invitethe court to make an assessment of the probative value versus prejudicial effect of the statement, much the same as was done in a Hartanalysis for a Mr. Big stings… Somewhat alternatively, Innocence Canada suggests a regime closer to the analysis undertaken by a courtin Mr.

Big stings and invites the court to conduct a probative value/prejudicial effect evaluation with an expanded prejudice component[since empirical studies and the Supreme Court in Oickle at paras. 34-5, strongly suggest that jurors would find it difficult to believe thatsomeone would falsely confess to a crime].… [Therefore] even if Mr.

Clyke were found to have had an operating mind at the time bymeeting the minimal test set out in the case law, it is suggested that through the modification and application of the similar test in Hartshows that the prejudicial effect of the statements are grossly outweighed by the minimal probative value they possess.” [i.e. that jurorswould find it difficult to believe someone, including Mr.

Clyke, would falsely confess to a crime, the prejudice to his fair trial rights issubstantial -the real risk that he could be unreasonably found guilty based on his “confession”- and this prejudice significantly overbearsany probative value of those statements, on the premise that the active psychosis was implicated in his “agreeing” to respond to police,which therefore makes it difficult to exclusively attribute any particular portion of his statements to his then “operating mind”]. [9] [23] More specifically, Mr.

Clyke argues that consistent with the approach in R v Hodgson, (SCC), [1998] 2 SCR449, (para. 33), once the defence establishes (on a balance of probabilities) at the time of the statement-making a genuinely heldreasonable[10] belief of Mr. Clyke regarding pressure (inducements or threats) by a private party, the Crown should have the burden toprove beyond a reasonable doubt that these “internal pressures” on Mr.

Clyke did not overbear his will and compel him to provide astatement to the police.[11] [24] I do not agree that it is appropriate to transpose a form of the “voluntariness” legal paradigm arising from “external influences”communicated by the conduct of State agents (“persons in authority”) vis-à-vis a detainee, to a consideration of “internal influences”communicated by a psychotic person, as arguably experienced in the case of Mr. Clyke. His counsel proposes a solution - however I amnot convinced that it generally (or specifically in this case) addresses an existing, real, systemic problem.

Why I reject the proposed “novel” approach and the probative value/prejudicial effect analysis suggested by Mr.

Clyke [25] Let me then first deal with the proposed novel approach. [26] I decline to engage in the analysis suggested in this proposed novel approach for numerous reasons, including that: there is noreported case in which a court has adopted such an approach, much less any binding or persuasive jurisprudential authority for it; in thiscase, and I hazard in almost any case, the approach is not necessary to protect an accused’s right to have a fundamentally fair trial. [27] Trial judges must not reject otherwise relevant evidence, without good reasons.

Existing protections are ample and providerobust protections against wrongful convictions in such instances. [12]

[28] I will elaborate briefly. [29] Firstly, I will re-iterate the proper analysis of the probative value/prejudicial effect of evidence proposed to be tendered by theCrown in the case at Bar, as was discussed in R v.

Seaboyer, (SCC), [1991] 2 SCR 577, in R v Harrer, (SCC), [1995] 3 SCR 562, and more recently by Moldaver J in R v Hart, 2014 SCC 52 , [2014] 2 S.C.R. 544 at paras 94-98.This existing paradigm can be effectively used in such cases as a residual protection. [30] In Seaboyer, the court was faced with determining whether that probative value/prejudicial effect analysis should equallyextend to defence evidence, particularly in relation to ss. 276 and 277 [the so-called "rape shield" provisions] of the Criminal Code atthat time.

The court held that the test for defence evidence should be that a court should "exclude evidence, the probative value of whichis not substantially outweighed by its potential prejudice" to the Crown’s case: per McLachlin J, as she then was, for the majority (atpara. 45). [31] In commenting on the common-law rule, both Justice McLachlin for the majority and the dissenting Justices, accept that thereare four general factors which may cause evidence that is otherwise relevant, to be excluded. [32] These were cited by the dissenting Justices at paras. 225- 227: 225 Significant for our purposes is the long-recognized discretion in the trial judge to exclude otherwise relevant evidence.

Hence, adetermination that something is relevant does not answer the further question whether, regardless of its relevance, there exists some ruleor policy consideration that nevertheless mandates exclusion of the proffered evidence. ... 226 There are many reasons why relevant evidence may be excluded and such exclusions play a significant and important role in thetraditional law of evidence. Some evidence is excluded in order to protect values that our society holds dear. Other evidence may beexcluded because of its inherent unreliability.

As well, evidence will be excluded if it distorts rather than enhances the search for truth... 227 … As La Forest J. (dissenting on other grounds) put it in R. v. Corbett, [1998] 1 S.C.R. 670, at p. 714: The organizing principles of the law of evidence may be simply stated.

All relevant evidence is admissible, subject to a discretion toexclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise beexcluded on clear grounds of law or policy. [My italicization added] [33] Recently in R v Pearce, 2014 MBCA 70, the court summarized the law as follows: 59 Judicial concern about false confessions is a longstanding rationale of the confessions rule (Singh at paras. 29-30, and John HenryWigmore, Evidence in Trials at Common Law, revised by James H.

Chadbourn (Boston: Little, Brown & Company (Canada) Limited,1970) vol. 3 at 291-308). The Supreme Court of Canada in Oickle noted that the confessions rule is designed to address the mostcommon type of false confession, the classical "coerced-compliant confession" (at para. 39) to a person in authority that is the product ofimproper inducements (such as a threat or promise) or oppressive circumstances (e.g., R. v. Eaton (1978), (MB CA),39 C.C.C. (2d) 455 at 460 (Man.

C.A)). 60 However, by definition, it must be acknowledged that not all claims of false confession can be properly adjudicated by application ofthe confessions rule which focusses on the issue of voluntariness and is limited to statements made to persons in authority. Theconfessions rule can only exclude "putatively unreliable statements, not actually unreliable statements" (Hodgson at para. 19).

As theSupreme Court of Canada explained in Oickle (at paras. 38-41) and Hodgson (at paras. 26, 30), there are examples of false confessionsthat may not be excluded from being admitted into evidence by the confessions rule, for example: false confessions without externalpressure because of an ulterior purpose (notoriety, to relieve guilt, illness or a disorder, or to protect another); false confessions toescape the pressure of police interrogation; false confessions because of being temporarily persuaded of guilt by a skilful interrogator;and false confessions because of inhuman or degrading treatment by a person not in authority. 61 While not argued in this case, I think it is important to note that the confessions rule is not the only judicial safeguard against falseconfessions (R v.

Wells (S.W.), 2003 BCCA 242 at paras. 59-64, 181 B.C.A.C. 271). At common law a judge has discretion to excluderelevant and otherwise admissible evidence in two situations (R. v. Buhay, 2003 SCC 30 at para. 40, [2003] 1 S.C.R. 631). First, applyinga cost-benefit analysis, a judge may exclude such evidence if its prejudicial effect exceeds its probative value (R. v. Seaboyer; R. v.Gayme, (SCC), [1991] 2 S.C.R. 577 at 610-11, and Mohan at pp. 20-21). In such cases the integrity of the jury'sreasoning is preserved by preventing their misuse or overuse of evidence of questionable value.

Second, a judge may also excludeevidence if its admission would result in an unfair trial to an accused because of concerns about the process by which the evidence wasobtained in the absence of a breach of the Charter (R. v. Harrer, (SCC), [1995] 3 S.C.R. 562 at paras. 23-24; R. v. Buric(1996), (ON CA), 28 O.R. (3d) 737 at 749-50 (C.A.), aff'd, (SCC), [1997] 1 S.C.R. 535; and R. v.Osmar, 2007 ONCA 50 at para. 48, 84 O.R. (3d) 321, leave to appeal to S.C.C. ref'd, [2007] S.C.C.A.

No. 157 (QL)). 62 In a rare case where there is clear, cogent and compelling evidence that an otherwise admissible confession is false, a judge may besatisfied that it is necessary to use their common-law discretion to exclude the confession. Such an exercise of judicial discretion is not abackdoor way to usurp the role of the jury to determine the truth of a confession. Rather, such an exercise of judicial discretion isdirected to preventing the unfairness of exposing an accused to the possibility of conviction on evidence upon which it would beunreasonable to rest a verdict (see R. v.

Humaid (2006), (ON CA), 81 O.R. (3d) 456 at para. 57, leave to appeal toS.C.C. ref'd, [2006] S.C.C.A. No. 232 (QL); and R. v. Hay, 2013 SCC 61 at para. 41, [2013] 3 S.C.R. 694). 63 Once a confession is determined to be admissible, the principal safeguard against a wrongful conviction based on a false confession isthe trier of fact, in this case a jury, aided by the features of the adversary system, because the ultimate truth of a confession is a matter for

the trier of fact (R. v. Gauthier, (SCC), [1977] 1 S.C.R. 441 at 448-9; Erven v. The Queen, (SCC),[1979] 1 S.C.R. 926 at 931; Park v. The Queen, (SCC), [1981] 2 S.C.R. 64 at 77; and R. v.

LaPointe and Sicotte (1983), (ON CA), 1 O.A.C. 1 at para. 39, aff'd (SCC), [1987] 1 S.C.R. 1253). [My italicization added] [34] I am as well cognizant of the concern identified by Justice Watt in R v Spackman, 2012 ONCA 905 at para. 118: Where the basis on which the exclusionary discretion is invoked is a claim that the prejudicial effect of the evidence exceeds itsprobative value, the balancing exercise brushes up uncomfortably close to the jury's function of weighing the evidence.

A trial judge,invited to exercise his or her exclusionary discretion on this basis, must be careful not to invade the jury's territory. In a similar way, inassessing the potential prejudicial effect of evidence, a trial judge must take into account and not underestimate the jury's ability tounderstand and follow limiting instructions R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, at pp. 692-693. [35] Secondly, I am not satisfied that after the application of the “operating mind” test as envisaged by Whittle and Nagotcha anynew formulation as suggested by Mr.

Clyke is required to ensure him a fundamentally fair trial. [36] Requiring an accused to show, after the Crown has shown that their statement to persons in authority was otherwise voluntary,that they had a genuinely held reasonable belief that a private person (ie.“Cartel L”) made serious threats or offered inducements thatcaused the accused to then give a confession to persons in authority, if viewed as a two-stage process, does permit an accused thepotential benefit of not testifying until their statement is otherwise initially ruled voluntary.

However, there is no good reason why theexisting one-stage process cannot deal with such scenarios - it seems artificial to have the court rule whether the statement is otherwisevoluntary, before the accused then challenges the admissibility of the statement as a discrete enquiry. [37] I reject this proposed approach. In these particular circumstances, the evidence of any perceived influence of private persons(“Cartel L” or otherwise) arising as it does out of Mr. Clyke’s mental health circumstances, was nevertheless effectively presented.

Theapplication of the existing “operating mind” test to that evidence can be adapted by courts to ensure the spirit of the voluntariness rule ismaintained. [38] The concern about juror scepticism of false confessions to a crime was specifically addressed in Oickle. The court referencedthe general protections that exist in the jurisprudence.

Arguably, a confirmed mentally ill accused has an inherently better argument (on avoir dire and) at trial, than an accused who is not, that his confession is not reliable and should be given little or no weight. [39] If his statements are found to be voluntarily made, and specifically to be the product of an “operating mind”, they merelybecome admissible. Ultimately jurors will be asked to determine the “credibility” of an accused’s statement.

Those jurors could becontextually reminded that what is often referred to simply as “credibility” involves two related, but separate, notions: veracity andreliability- see R v Perrone,2014 MBCA 74; affirmed 2015 SCC 8. [13] [40] In the trial proper, Mr. Clyke may attack the reliability and weight to be given to those statements by various means. Theirprobative value is ultimately a decision for the jury.

Given the protections afforded at the voir dire and trial to persons who have madestatements to the police, it is difficult to conceive how their right to a fundamentally fair trial would be so substantially prejudiced at trialif the Crown has been able to demonstrate beyond a reasonable doubt that their statement was the product of an operating mind, andotherwise voluntary. [41] Recall that the “operating mind” test “does not imply a higher degree of awareness than knowledge of what the accused issaying and that he is saying it to police officers who can use it to his detriment.” [14] [42] It does not require the accused to be “capable of making a good or wise choice or one that is in his or her interest” - i.e. an“awareness of consequences” test - per Sopinka J in Whittle at para. 46.

This is consistent with the accepted standards regarding fitness tostand trial, and the exercise of the right to silence and right to counsel (instructing legal counsel). At trial Mr. Clyke’s statement will beassessed by the jury. The jury will be instructed that they should not convict unless they are satisfied beyond a reasonable doubt that theCrown has proved the essential elements of murder (or any included offence). [43] Even if to some degree Mr.

Clyke gave his police statement because of “internal influences”, if his statement is found to bevoluntarily given (i.e. of an operating mind) he must necessarily still have had the capacity to make an active choice to do so, or not.

Thathe gave his statement because of “internal influences” would only become significant if the level of psychosis reached a level, such thathis cognitive capacity “is so devoid of rationality and understanding, or so replete with psychotic delusions that his uttered words couldnot fairly be said to be his statement at all”. [44] The proposed prejudice versus probative value approach is just another form of essentially the same attack on the admissibilityof such a statement, only dressed up differently. It is premised on the notion that, on facts akin to those in Whittle, the probative value ofMr.

Clyke’s words is so low, even if they could still fairly be said to be his own in spite of his active psychosis, a trier of fact maynevertheless see his confession as almost determinative of the outcome of his trial. If the argument regarding any significant effect of hispsychosis has already been rejected in the Whittle/Nagotcha analysis by this court in the voir dire, then it would appear oddlyinconsistent for the court to rule differently in the same voir dire, if presented with an argument that as a result of such analysis theprobative value of Mr.

Clyke’s statements is outweighed by the prejudicial effect on the fair trial rights of Mr. Clyke, given the claimedprejudice in this case. [45] Mr. Clyke’s argument that the probative value is so low as to be insignificant seems to be based on concerns about itsreliability.[15] However, in any event, the mere presence of active psychosis does not necessarily render unreliable, any part, much lesseverything that Mr. Clyke stated.

When the claim of a lack of “operating mind” is based on mental health considerations, the court willlook at the surrounding evidence and entire statement, and “only where an accused is so devoid of rationality and understanding, or soreplete with psychotic delusions, that his uttered words could not fairly be said to be his statement at all”, would a statement be heldinadmissible for lack of operating mind.[16]

[46] Thirdly, the exceptional protection of requiring proof beyond a reasonable doubt of “voluntariness” (including that Mr.

Clykehad an operating mind), before statements from accused persons to persons in authority can be admissible, is also a significant safeguardagainst false confessions. [47] In R v Arp, (SCC), [1998] 3 S.C.R. 339, the principal issue was whether a jury should be instructed that theymay draw conclusions from similar fact evidence on a balance of probabilities or the higher standard beyond a reasonable doubt?Justice Cory, speaking for the court, stated: 38 The rule allowing for the admissibility of similar fact evidence is perhaps best viewed as an "exception to an exception" to the basicrule that all relevant evidence is admissible.

Relevance depends directly on the facts in issue in any particular case. The facts in issue arein turn determined by the charge in the indictment and the defence, if any, raised by the accused. See Koufis v. The King, (SCC), [1941] S.C.R. 481, at p. 490. To be logically relevant, an item of evidence does not have to firmly establish, on any standard,the truth or falsity of a fact in issue. The evidence must simply tend to "increase or diminish the probability of the existence of a fact inissue". See Sir Richard Eggleston, Evidence, Proof and Probability (2nd ed. 1978), at p. 83.

As a consequence, there is no minimumprobative value required for evidence to be relevant. See R. v. Morris, (SCC), [1983] 2 S.C.R. 190, at pp. 199-200. … 71 However, the general rule that preliminary findings of fact may be determined on a balance of probabilities is departed from in thosecertainly rare occasions when admission of the evidence may itself have a conclusive effect with respect to guilt. For example, where theCrown adduces a statement of the accused made to a person in authority, the trial judge must be satisfied beyond a reasonable doubt ofthe voluntariness of the statement.

That evidence may of itself, if accepted as true, provide conclusive proof of guilt. Since doubt aboutthe statement's voluntariness also casts doubt on its reliability, proof beyond a reasonable doubt is warranted. See Ward v. The Queen, (SCC), [1979] 2 S.C.R. 30.

If this were not the rule, the jury would be permitted to rely on evidence which it couldaccept as extremely cogent even though the inherent reliability of that evidence was in doubt. [My italicization added] [48] Proof beyond a reasonable doubt that an individual made a statement “voluntarily” to persons in authority is exceptionallyrequired in the law for this preliminary finding of fact, because the “admission of the evidence may itself have a conclusive effect withrespect to guilt”.

Therefore, the rationale for his proposed novel probative value versus prejudicial effect analysis is further weakenedbecause the accused already has this, and other, built-in protection(

s) against the concern relied upon by Mr. Clyke. Requiring proofbeyond a reasonable doubt of voluntariness is largely oriented towards ensuring that only putatively reliable confessions are received intoevidence. As the Court stated in R v Oickle, at para. 47: “the common law confessions rule is well-suited to protect against falseconfessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntarywill often (though not always) be unreliable.

The application of the rule will by necessity be contextual.” However, the court also statedat paras. 25-7: 25 The Ibrahim rule gives the accused only "a negative right -- the right not to be tortured or coerced into making a statement by threatsor promises held out by a person who is and whom he subjectively believes to be a person in authority": Hebert, supra, at p. 165.However, Hebert also recognized a second, "much broader" approach, according to which "[t]he absence of violence, threats andpromises by the authorities does not necessarily mean that the resulting statement is [page23] voluntary, if the necessary mental elementof deciding between alternatives is absent" (p. 166). 26 While not always followed, McLachlin J. noted at p. 166 that this aspect of the confessions rule "persists as part of our fundamentalnotion of procedural fairness".

This approach is most evident in the so-called "operating mind" doctrine, developed by this Court inWard, supra, Horvath v. The Queen, (SCC), [1979] 2 S.C.R. 376, and R. v. Whittle, (SCC), [1994] 2S.C.R. 914. In those cases the Court made "a further investigation of whether the statements were freely and voluntarily made even if nohope of advantage or fear of prejudice could be found": Ward, supra, at p. 40.

The "operating mind" doctrine dispelled once and for allthe notion that the confessions rule is concerned solely with whether or not the confession was induced by any threats or promises. 27 These cases focused not just on reliability, but on voluntariness conceived more broadly. None of the reasons in Ward or Horvathever expressed any doubts about the reliability of the confessions in issue. Instead, they focused on the lack of voluntariness, whether thecause was shock (Ward), hypnosis (Horvath, per Beetz J.), or "complete emotional disintegration" (Horvath, supra, at p. 400, per SpenceJ.).

Similarly, in Hobbins v. The Queen, (SCC), [1982] 1 S.C.R. 553, at pp. 556-57, Laskin C.J. noted that indetermining the voluntariness of a confession, courts should be alert to the coercive effect of an "atmosphere of oppression", even thoughthere was "no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence"; seealso R. v. Liew, (SCC), [1999] 3 S.C.R. 227, at para. 37.

Clearly, the confessions rule embraces more than the narrowIbrahim formulation; instead, it is concerned with voluntariness, broadly understood. [My italicization added] [49] It is not disputed that the Crown must prove beyond a reasonable doubt that Mr. Clyke made the statements on November 29,2016 “voluntarily”. Since I reject Mr. Clyke’s proposed novel approach, and it is conceded (and I am so satisfied) that there is no otherviable “voluntariness” basis to argue that the statements are inadmissible, what remains is that the Court must determine whether theCrown has proved beyond a reasonable doubt that Mr.

Clyke’s statements are voluntary, as a product him having an “operating mind” atthe material times. [17] What is “an operating mind” in the context of the requirement for proof beyond a reasonable doubt that a statement to policewas made “voluntarily”? [50] Succinctly stated, in order to conclude that Mr. Clyke’s statements were voluntarily made beyond a reasonable doubt, I must be

satisfied beyond a reasonable doubt that the answers to the following two questions are “no” and “yes” respectively: 1. were Mr. Clyke’s statements so devoid of rationality and understanding, or so replete with psychotic delusions, that his uttered words could not fairly be said to be “his” statement? ( Nagotcha - para. 4 ); 2. while giving his statements, did Mr.

Clyke possess at least the limited degree of cognitive ability to understand what he was saying and comprehend that he was saying it to police officers, including that it could be used to his detriment in proceedings against him? ( Whittle - para. 46 ); and that: 3. the probative value of his statements outweigh any prejudicial effect on his fair trial rights. [18] The expert opinion evidence [ 51 ] The court heard from two highly qualified forensic psychiatrists regarding their opinions whether Mr. Clyke would have been “unfit to stand trial” on November 29, 2016 when he gave his two statements to police.

Their reference to the “unfit to stand trial” threshold is helpful as it mirrors the “operating mind” test articulated by the Supreme Court of Canada in Whittle . [ 52 ] Dr. Risk Kronfli had last seen Mr. Clyke on May 25, 2016 before he next examined him for 10 to 15 minutes while he was in custody on December 5, 2016. He testified that, based on that examination (he did not review the videotape or contents of Mr. Clyke’s November 29, 2016 police statements) “there is no doubt in my mind” that Mr.

Clyke was psychotic with paranoid persecutory delusions, to a level that he would have considered him “unfit to stand trial” on December 5, 2016. He inferred it likely that Mr. Clyke’s mental state was such that he was unfit to stand trial on November 29, 2016. He acknowledged that “I am inferring he has had a worsening mental state preceding December 5, 2016” primarily based on his observations of Mr. Clyke on December 5, 2016 and his conclusion that after Mr. Clyke took his anti-psychotic medication his mental state improved. [ 53 ] Dr.

Scott Theriault prepared an August 24, 2017 fitness to stand trial/NCR assessment for their Honours, Provincial Court Judges Frank Hoskins and Daniel MacRury, in relation to the murder charge herein and unrelated charges. His report states in part: “In

summary, [Mr. Clyke] is a 25-year-old African-Canadian male who now presents with a history of almost 2 years duration of clear- cut psychotic symptoms consistent with a diagnosis of schizophrenia. There is, however, no evidence to suggest that Mr. Clyke’s illness was active at or around the time of the alleged murder of Ms. Hall in 2011… Mr.

Clyke, in my opinion, is also fit to stand trial.” [ 54 ] Therein he stated: “1-Ethically, as a clinician, and although my opinion in this regard is outside of the technical issues concerning fitness or criminal responsibility, I feel compelled to provide opinions concerning the confession made by Mr. Clyke in November 2016 . Given the evidence suggesting ongoing symptoms of psychosis at or around the time that Mr. Clyke gave the confession, I have concerns, on a clinical basis, as to the degree to which Mr. Clyke could be said to have given a free and voluntarily confession .

The trier of fact will need to ascertain as to what degree Mr. Clyke’s statement is admissible or what weight should be given to it. 2-At our request, we obtained a 440-page document concerning the death of Miss Angela Hall. Much of the material is not germane to the psychiatric review of the situation… It is clear from review of those documents that Mr. Clyke became a suspect early on in the investigation, although it would appear that there was not sufficient evidence to lead to charges. I have had the opportunity to review the videotape made by police from Mr. Clyke’s confession of November 29, 2016.

From a clinical perspective… He is able to follow police- questioning and attends to the officer’s comment s.… Mr. Clyke was seen by the attending psychiatrist at the CNSCF [Corrections Nova Scotia Central Facility, also referred to as the “Burnside Jail”] one week later on December 5, 2016. Dr. Kronfli’s note reads [19] : “Talking about ‘people’ telling him that he killed someone five years ago and that he should confess!! He can’t remember why or how ‘Angela Rodriguez’; ‘I was told I bought weed from them. All I know is what everyone told me.

They said there was a video, maybe they’ll use it if I don’t confess’; ‘maybe it’s in my head’; had a professional visit with police and ‘I confessed’. No evidence of any danger to self or others. Discharged from HCS [Healthcare Segregation].” [My italicization added] [ 55 ] In his testimony Dr. Theriault stated he based his concerns about Mr. Clyke’s capacity to give a voluntary confession on November 29, 2016 on the following items: 1. he was satisfied that Mr.

Clyke had developed a psychiatric disorder, likely schizophrenia, and only showed a partial (illness symptoms reduction) response when anti-psychotic medication was administered; 2. that after November 29, 2016 when he received anti-psychotic medication it appeared to significantly improve his mental health; [20] 3. the fact that he contacted police to give the confession; [21] 4. his reference to the victim as Angela Rodriguez rather than Angela Hall; 5. because his statement was “so minimalist” – it appeared Mr. Clyke just wanted to confess to this; 6. the fact that the police seemed concerned that Mr.

Clyke was being pressured by third parties to confess, and on questioning about it, Mr. Clyke does not directly answer the officer’s questions.

[ 56 ] Notably, Dr. Theriault concedes that looking only at Mr. Clyke’s November 29, 2016, 3 pm videotaped interview with Constables Shupe and Bowers, is an insufficient basis to allow him to opine whether Mr. Clyke was fit to stand trial at that time. [22] [ 57 ] He concedes a review of the video alone does not suggest that significant psychosis was present while Mr. Clyke gave his November 29, 2016 videotaped statement. He also agreed that Mr. Clyke’s avoiding eye contact, long pauses before he answered, and his evasiveness in answering some questions put to him, are not determinative that Mr.

Clyke was significantly psychotic on November 29, 2016. [23] [ 58 ] In cross-examination Dr. Theriault agreed that without more data or information he “cannot say” that Mr. Clyke’s psychiatric illness was the “main driver” of him giving the November 29, 2016 police statements. [ 59 ] Mr. Clyke was not assessed by a forensic psychiatrist on November 29, 2016. Dr. Theriault first saw Mr. Clyke in connection with these charges on or about August 4, 2017. Dr. Kronfli did not see Mr. Clyke in-person between May 25, 2016 and December 5, 2016. Dr. Kronfli did not have any notes regarding the health care of Mr.

Clyke for the time interval between November 29 and December 7, 2016 when Mr. Clyke was in custody on the Correctional Services side of the Burnside Jail in a Healthcare Unit (health segregation). [24] [ 60 ] He stayed there for approximately seven days. [25] [ 61 ] Dr. Theriault’s concerns about the voluntariness (operating mind) of Mr. Clyke giving the videotaped police statement on November 29, 2016 are significantly based on Dr. Kronfli’s observations of Mr. Clyke on December 5, 2016 and Dr. Kronfli’s factually inferred opinion that it is more probable than not, at the relevant times on November 29, 2016, Mr.

Clyke was unfit to stand trial. [ 62 ] Therefore, I will concentrate my remaining analysis on Dr. Kronfli’s testimony. Why I conclude beyond a reasonable doubt that Mr. Clyke was of an operating mind when he gave his two police statements on November 29, 2016 [ 63 ] I accept, as Dr. Kronfli stated in his expert opinion, that: 1. Mr.

Clyke has an established diagnosis of a psychiatric disorder, likely schizophrenia; 2. fitness to stand trial can be intermittent, and the level of psychosis often becomes more elevated if the offender’s circumstances materially change (eg. stress levels, failure to ingest anti-psychotic medication, use of illegal drugs or other substances while in jail); 3. as such Mr. Clyke always has latent psychosis, which if it becomes active and the level thereof increases materially, can impact on his mental functioning, culminating in grossly disorganized and/or delusional thoughts.

Four delusional themes are generally referenced: paranoid, persecutory, grandiose and somatic. It is “very common” for the delusional themes a person experiences to have “some truth” or reality-based kernel (the analogy being to an oyster which repeatedly covers the grain of sand with a smooth-surfaced coating over time), and it is “extremely difficult to draw the line” to distinguish between verbalizations made by Mr. Clyke that are references to real events and those that are purely delusional; 4. most schizophrenics, and Mr.

Clyke in particular, even while in elevated levels of psychosis can have the capacity to relate actual events and facts from their experiential past when speaking to others, though intertwined with delusional elements – “it’s a continuum” and generally the mix of them will depend on the “level of psychosis”; 5. that the likelihood of positive external signs of psychosis (auditory delusions or hallucinations) will increase as does the level of psychosis, however they may also co-exist with negative signs of psychosis such as the guardedness and withdrawal exhibited by individuals in some cases, which are restraints imposed on themselves, and often due to paranoia concerns or in an effort to “fake wellness”; [26] 6. it is unusual for new themes to emerge, and if they do, he will suspect malingering by the patient; [27] [ 64 ] In spite of Dr.

Kronfli’s opinion that Mr. Clyke was probably unfit to stand trial on November 29, 2016, I am satisfied beyond a reasonable doubt that at the relevant times Mr. Clyke had an operating mind. [ 65 ] I will next elaborate upon why I conclude this. [ 66 ] Dr.

Kronfli did not have the benefit of: [28] 1. hearing the testimony in relation to, nor the contents of, Mr Clyke’s telephone call to the police dispatcher at 1 pm, or the 2 pm unrecorded police statement made to Constable Rainault; 2. similarly, regarding the 3 pm videotaped police statement; 3. he did not review the Crown disclosure or see the testimony of persons who had contact with Mr.

Clyke that day: Constable Rainault (who met him between 2:15 pm and remained in his company until about 3:46 PM November 29, 2016 – she gave him a proper Charter of Rights advisement and full police caution which, based on her observations, he appeared to understand and to which he made appropriate responses(she stated: “he “seemed coherent – quiet spoken”); CMO Dawn Callahan (she stated: “he was understanding me and making sense to me and responding appropriately” was her observation of him that day); Constable Shupe (although he had never met Mr.

Clyke before he stated he found him to be “quiet and sombre” – he appeared to understand everything he was told and responded appropriately; Detective-Constable Bowers (he was also present that day between 2:55 and 5 pm with Mr. Clyke; he had never met Mr. Clyke before , but noted his demeanour was “sullen, quiet, nervous”. Detective-Constable Bowers testified that Mr. Clyke appeared to

understand everything he was told and responded appropriately; Capt. Mark Williams (was working that day and had contact with Mr. Clyke, noted he was “quiet” and his mental state “appeared okay”; CMO Jolene Dominix was Mr. Clyke’s Case management officer since she had returned to duty in June 2016. She had contact directly with him at least once weekly.

She involved him in programming such as the “Building Bridges” educational program and “Options to Anger”; and because he was well behaved in the institution he was entitled to take part, and did, in a work incentive program where he was paid for inter alia being the custodian for the day room and cleaning up, as well as ensuring that recycling throughout the institution is properly ordered and collected before it is sent out. [ 67 ] Dr. Kronfli presumed that Mr. Clyke was not consistently, or at all, taking his anti-psychotic medication in the time interval preceding his meeting with Mr.

Clyke on December 5, 2016 - however business records from the Correctional Services side of the Burnside Jail (shown to, and not disputed by Dr. Kronfli, though not entered into evidence) prima facie record that on November 23, 24, 25, 27, 29, 30, December 1, 2, 3 and 4, 2016, Mr. Clyke took his medication. I keep in mind that Dr. Kronfli noted patients resistant to taking their medication, can deceive those who provide it to them into them thinking that it has been taken, and that both Dr. Kronfli and Dr. Theriault agreed that, in Dr.

Kronfli’s words “partial response to medication is the most common outcome” for such mentally ill persons who always take their medications. [ 68 ] Dr. Kronfli acknowledged that upon the re-administration of anti-psychotic medication a patient could be fit to stand trial within one week, and that without taking medication a patient could deteriorate within 3 to 4 days to an unfit state, depending on the individual and circumstances. I note for example, Dr. Kronfli records on March 14, 2016 in relation to his fitness assessment, after Mr.

Clyke’s admission to the MIOU on March 10,2016 that “he was very guarded and reported that he was worried about being raped, but refused to elaborate… He asked the staff to review the tapes because he was raped and that the staff needed to find the ‘proof’ on the tapes. Later that evening… he was found cowering in the corner under the camera and staff noted he was very scared and paranoid… He stated to her that he has many concerns about being sent here and that this will delay his trial.

He stated that he has been ‘told by someone’ who is sending him ‘messages’ that ‘something very bad is going to happen to me here’. He further reported that is receiving ‘messages subliminally’ and that he is… safer if he remains in seclusion”. Dr. Kronfli characterized this as “extreme paranoia and persecutory delusions” and concluded that he was then not fit to stand trial. Dr. Kronfli is shown his March 16, 2016 notes which confirm that he had a long conversation with Mr. Clyke’s mother regarding her being a substitute decision-maker (SDM) and that she gave them permission to treat Mr.

Clyke with anti-psychotic medication. On March 23, 2016 his notes included the follow-up: “interesting presentation now and much calmer and able to hold his persecutory and paranoid delusions in check. Clearly still has them.” Thus, within the space of a week of receiving anti-psychotic medication he was able to hold his persecutory and paranoid delusions in check. [ 69 ] Dr. Kronfli was not aware that in his statements to Constables Rainault, Shupe and Bowers, Mr.

Clyke alluded to “hold back information” which would be known only by persons who were either present at the time of Angela Hall’s murder, or who had received information from those persons present. Counsel came to an oral factual agreement to formally admit ( per s.655 CC ) that, at least while Mr.

Clyke was in custody on his un-related 12 month sentence, from which he was released (I infer after serving two-thirds of his sentence) on February 6, 2017, he did not have contact with persons that police believe could be, and/or he referenced as being, the sources of his “holdback” information: Brandon Lawrence; Amir Jaber [AJ], and Gerrell [Rells] Sheppard. In his statement to Constable Rainault, and to Constables Shupe and Bowers, Mr. Clyke was able to provide such holdback information as: the fact that Ms.

Hall was shot once, and in the back; while she was on the ground in the second floor hallway in the vicinity of apartment 7– 44 Primrose Street, Dartmouth at approximately 5 pm. [ 70 ] The police investigation revealed (which counsel did not dispute) that, according to Dr. Theriault’s report (VD-1-14) and other testimony: The Crown file on the charge of murder concerning Ms.

Angela Hall as provided to us initially was quite brief… The report notes that on April 29, 2011 at 8:20 p.m. police received a call “shots fired with a woman on the floor” concerning an apartment at 7-44 Primrose Street, Dartmouth Nova Scotia. Police attended the area and found on the floor in front of apartment 7 ‘a white female, later identified as Angela Hall, lying on the floor in the fetal position on her left side’.

Police also note ‘at this time, police also observed what appeared to be a 10-inch knife without a handle lying on the floor in front of this female.… observed a small hole with congealed blood on the outside of her back’. Ms. Hall was taken to the QE2 Hospital and pronounced dead at 8:59 p.m. The autopsy report ‘revealed a single gunshot wound entering the back with a fatal injury of the heart and lung. She also had stab wounds to her left hand and head as well as blunt force trauma to her head.’ [ 71 ] The significance of Mr.

Clyke alluding to the “holdback information” is that it is more likely than not that he knew this as a result of being present at the shooting of Angela Hall or that he was told by someone who was present. On the evidence, the former is the more likely, and is consistent with his statement to Constable Rainault that the reason he was coming forward was because: “I feel bad”. This expression of remorse tends to displace the otherwise suggested rationale asserted by Mr. Clyke in the voir dire – i.e., that primarily the delusions compelled him to confess. [ 72 ] Dr.

Kronfli also did not have the opportunity to review the recording or transcript of Mr. Clyke’s discussion with the Halifax Regional Police dispatcher on November 29, 2016 at 1:06 pm. which I am satisfied shows that Mr. Clyke was able to understand what was said to him, and respond appropriately. [ 73 ] As noted above, Mr. Clyke’s initial delusion in the March 14, 2016 report (Exhibit VD-1-9) was that he was going to be raped.

The reference to the murder confession and that he was in jeopardy from “Cartel L” first surfaces expressly according to the evidence on December 7, 2016 [29] when he is speaking to Constables Shupe and Bowers, after they attend at his request on a follow-up “courtesy” visit. [30] [ 74 ] The reference to his family being in danger is found in the August 24, 2017 assessment report by Dr. Theriault as first being mentioned on August 4, 2017 (p. 5). [ 75 ] In contrast to Dr. Kronfli and Dr.

Theriault, neither of whom sat in to hear any of the evidence presented in the voir dire , I have had the benefit of hearing all the voir dire evidence. I heard the testimony of the following witnesses who interacted with Mr. Clyke on

November 29, 2016: Capt. Mark Williams; ADSO Jeffrey Awalt; CMO Dawn Callahan; Constable Tanya Rainault; Constable Shupe and Detective Constable Bowers. I have also heard the recorded conversation of Mr. Clyke speaking to the Halifax Regional Police dispatcher that day, about his statements to Constable Rainault, and seen the videotape of his statement to Constables Shupe and Bowers. [ 76 ] While still mindful of the expert opinion evidence I have heard, I conclude that Mr.

Clyke’s own words that day reveal he was clearly able to express himself intelligibly, with purpose (likely to unburden himself of guilt) and understand what others said to him. No patent symptoms of any serious psychosis are evident. If he was acting in a guarded manner in answering questions, such behaviour would not be unexpected for anyone who is coming forward to confess to a murder, particularly if others are involved who he does not wish to implicate.

His mental health may well have been deteriorating that day, but his words were still his own and he had an operating mind. [ 77 ] A short review of what he said in his various statements, which contain no bizarre comments or behaviour by him otherwise, follows. 1 PM November 29, 2016 – Mr. Clyke’s conversation with dispatcher Dispatcher (D)-hi there. So what is it that you’re looking to speak to an officer today about? Christian (Mr. C)-well, something that happened a long time ago… Could just come… If someone could come over, I can provide a statement. D – a statement about what?

We’re going to have to know what we’re coming for Sir. Mr. C – well… Well, something… Something unsolved. D – okay… How long ago did this incident take place? Mr. C – about five years ago. D – okay. And is it something that happened to you or… Mr. C – no D – so is it something that you did to someone else? Mr. C – yeah D – what’s your name sir? Mr. C – Christian Clyke [he then goes on to spell his last name and gives his proper date of birth upon request] … D – alright Christian. I just want to confirm that you’re at the Burnside correctional facility correct? Mr.

C – yes D –… So, you said this happened about five years ago. Mr. C – yeah … D – can you just ask her the number that you’re calling off of? Mr. C – what’s the number that you’re calling off of? CMO D. Callahan – 460 Mr. C – 460 Mr. C – 5834 D – 5834. Okay, Christian, well, I have a call in there. So we will have an officer come by and talk to you okay. Are you… Can you ask Dawn if you’re still going to be in the office when we get there or… Mr. C – I don’t think I’ll still be in the office. D okay.

So I’ll just put a that on there that you’re not going to be there when we get there, but there will be an officer to buy to speak with you today, okay? Mr. C – okay D – alright. I appreciate the phone call there Christian. Mr. C – no problem.”

His statement given to Constable Tanya Rainault between 2:15 and 2:54 pm November 29, 2016 [ 78 ] Constable Rainault (CR) testified that her significant conversation with Mr. Clyke involved the following questions and answers: [31] CR – who shot her? Mr. C – I shot her just once in the back- she was on the ground laying away from me. CR – was anyone else present? Mr. C – could have been someone else – don’t really want to say. CR – describe the gun. Mr. C – older gun wrapped in cloth – dark coloured – revolver style. CR – what happened to the gun? Mr.

C – can’t remember where it went… was high on Valium and electrobans ( ie benzos). CR – how do you know Angela? Mr. C – met her through someone else – he knew a guy that could get marijuana. CR – how did you get there? Mr. C – someone took me – I met her there. CR – where was the shooting? Mr. C – happened in the hallway second floor. CR – anyone else they are? Mr. C – don’t want to answer if anyone was there. CR – Why? Mr. C – it was a deal gone wrong. CR – where did the gun come from? Mr. C – [he said he had it on himself]. CR – why, what was the intention? Mr.

C – to get marijuana – I had been there before and bought off him before. CR -why shooting happened? Mr. C – we showed up – we didn’t get any – she did not want to get it for us – went into doorway of apartment – someone was supposed to bring drugs – weren’t waiting long – we were rushed out of the house by her-basically everything happened fast- everything went down in the hall. CR – anything sexual? Mr. C – no – was in an argument in the hallway – everything happened so fast. CR – why confess now? Mr. C- [he felt bad]. CR – anyone pressuring him? Mr. C – maybe… Nothing from my family.

CR – anyone threaten him to come forward? Mr. C – can’t speak to that. His statement given between 3:50 pm and 5:05 pm November 29, 2016 to Constables Shupe and Bowers [32] Question – so Christian, we were contacted by Capt. Williams today and you want… You said you wanted to speak to us in regards to

something that took place a few years ago. Scott and I are kind of walking in blind here. Do you want to tell us the reason why you wanted us to come in? Answer – I just want to – I want to make a confession. There was… There was a murder that happened and I shot a woman. Angela Rodriguez if I am not mistaken. Question- can you tell us anything more about that, Christian? Answer – I don’t know I just… I just want to confess to my involvement in it. Question – okay Christian… Are you able to tell us what your involvement was and tell us exactly what happened? Answer – well I was… I was on somewhat of a drug binge.

I was on Valium and lectopam, benzos. And I went to Angie’s place to get some marijuana and she knew a guy that I bought weed off a few times and went to get some and I ended up… I don’t know. I don’t really know how it happened, but I ended up shooting her with a handgun. Well, that’s… That’s what I want to say. Question – Christian do you remember like dates or anything like that… Answer – back in 2011 May… Question- do you know where this took place? Can you describe it… Answer – oh, it was in Dartmouth, Primrose… 44 Primrose… Question- was it at an apartment or a house…?

Answer – apartment Question -do you remember the apartment number? Answer – no, I don’t… Question – do you remember the night… Was it nighttime daytime? Answer – oh it was day, probably, maybe five or six. I’m not sure can’t remember the time honestly. Question – you remember much about the day -like weather conditions what was it like outside? Answer – no Question – who is Angela Rodriguez? Answer – I don’t really know. It’s basically someone I was introduced to, to find some weed. Question – so you remember how you got there?

Answer – [shakes head “no”] Question – is that something you don’t want to talk about how you got there? Answer – no, I don’t really know. No. Not really. I just… I don’t know. I just want to do this… My confession. Question – was Angela home alone? Answer – I… Yeah, I think she was. Yeah. Question – do you remember what Angela looks like? Answer – she was… She was a white woman… Question – what kind of build was she? Was she tiny or medium or heavy or… Answer – she was… She was small. Question – so for my understanding you were going there to buy weed?

Answer – yeah Question – what went wrong – you indicated that you had shot her.? Answer – I don’t really know I don’t even really know. It just happened. Question – do you remember how many times you shot her? Answer – once.

Question – and was that it, is that all that happened? Answer – that’s all I did. Question – was everybody else with you? Answer – well, there could have been. Question – do you know or you just don’t wanna say? Answer-… Yeah… I just don’t want to say. Question – do you know if Angela died? Answer – yeah, I… [Shrugs shoulders] … Question – do you remember the type of gun it was and can you describe it for me? You mentioned it was a handgun. Answer – it was older… older style. It was wrapped- up I think. Question – a revolver? Answer – [shakes head “yes”] Question – do you know how many rounds were in the gun?

Answer – I don’t know, four or five, or five. I don’t know five or six maybe. Question – and you know the calibre? Answer – I’m not sure… Could be .38 or something … Question – do you know where you shot Angela? Answer – I think in the back. … Question – why are you telling us this now? Answer – I just… I don’t know. I feel bad. Question – so you’re remorseful of what you did? Answer – pretty much [nods “yes”]. … Question – are you solely responsible for Angela’s death? Answer – [no response]… I’m responsible for shooting her. Question – did something else happen to her?

Answer – [no response] Question – the way you answered that you’re leading me to believe that there is a little more to the story. So did something else happen while you were there that you weren’t responsible for? Answer – maybe yeah, something could have. Question –… What was that?… What else did you see? Answer – she could’ve got stabbed. Someone could’ve stabbed her. Two people could’ve stabbed her. Question – could have or did? You saw that? Answer – yeah, I may have seen it. Question – so did all three of you maybe, could’ve went there to buy weed… Answer – I don’t know. Like I said.

I went there to get some weed. I don’t know, it just happened.

Question – were you going there to buy the weed or were you going there to take the weed? Answer – going there to buy the weed. Question – how much were you going to buy?… Answer – 5 g… 4 g. Yeah around 5 g. Question – how much would that of cost? Answer – 40 bucks maybe 50 bucks. … Question – you been thinking about this for awhile before calling today? Answer – yeah, it’s been on my mind a little bit. … Question –… how did you get there, did you take the bus did you go by car did you walk? Answer – just got there, got a drive. Question – did you drive or did some else drive?.

And you don’t have to tell me who that was, but did someone else drive? Answer – yeah. … Question – did you go into the apartment? Answer – we went to the threshold of it basically for, may be a second, not long. And we just got rushed out of the apartment and, I don’t know , it just happened. Question – you guys got rushed out of the apartment, you and whoever was with you? Answer – yeah … Question – well, where was Angela when you shot her? Answer – she was on the ground. Question – was she on the ground outside? Or on the ground on the floor in the apartment?

Answer – hallway. … Question- did you hold the gun in your right hand or your left hand? Do you remember? Answer – my right hand. Question – in your right hand. Okay. She’s laying on the floor in the hallway? Is that right? Answer – yeah. Question – did you take the gun out of a pocket or out of your jacket? Answer – yeah, it was on my waist. … Question –… Did you fire one shot two shots? You said there were probably five rounds and your gun. How many shots did you fire? Answer – one. … Question – what did you do immediately after you had shot her? Answer – I left… I left, got in the car.

Question – same car that you came in?

Answer – yeah. Question – and where did you go when you left Primrose? Did you go home? Answer – Yeah… Spryfield. … Question – a week or two after the shooting is when you learned that she had died? Answer – about that. Question – if you could take it back, would you? Answer – oh yeah. Yeah. No, yeah, for sure. Definitely. Question – if you could say anything to her family right now, what would you say? Answer – I’d tell them I’m sorry for their loss. I don’t know really what else to say. I don’t know. Yeah. Yeah. Sorry for their loss. I did it. It’s… I don’t even know. I don’t know.

Like I said I think I shot her. And regardless of what or who or how I was shooting or, or whatever, she’s dead, so they can do what they want. I don’t know. I’m trying the best I can to be honest.” [33] Why I conclude that the probative value of Mr. Clyke’s statements outweighs any identifiable prejudicial effect of their admission at trial [ 79 ] Mr.

Clyke suggests that in spite of the court finding that his statements were “voluntarily” given, namely of “an operating mind”, that I should exclude his statement on the basis that the prejudice to his fair trial rights outweighs the probative value of his statements. [ 80 ] He says that the probative value is low because of him being in an active state of psychosis associated with his schizophrenia at the time he made the statements; and that the prejudice to his fair trial rights arises from concerns that jurors, even with proper instructions from a judge to avoid that outcome, would be inclined to presume that persons who give statements to police confessing to a crime are doing so truthfully and reliably-and that presumed thinking is difficult for an accused to satisfactorily counter. [ 81 ] Nothing prevents Mr.

Clyke at trial from effectively advocating that the jury give little weight to his statements, given his established diagnosis of schizophrenia and the anticipated testimony of psychiatric experts who could speak to his likely level of psychosis at the time he gave the statements. Mr.

Clyke himself could be a witness in support of his defence. [ 82 ] On the evidence available to me, the probative value of his statements is significant – his statements are highly inculpatory, detailed, and in those respects consistent with supporting information disclosed by the police investigation, including demonstrating that he has knowledge of “hold back information” which one would expect only persons who were present, or persons who those persons spoke to about the murder would have. [ 83 ] Regarding the concern that jurors would presume his statements to be truthful and reliable in these circumstances – there is no reason why here, proper judicial instructions could not be fashioned to ensure jurors are aware and avoid this form of reasoning. [34] [ 84 ] As the Court pointed out in Pearce , 2014 MBCA 70 at paras. 59-63 , I have discretion to exclude relevant and otherwise admissible evidence in at least two situations: by applying a cost-benefit analysis inherent in the probative value/prejudicial effect examination of evidence; and if the evidence was obtained in a manner that was unfair, yet not technically in breach of a Charter right. [ 85 ] And as that court added regarding demonstrably “false” confessions: In a rare case where there is clear, cogent and compelling evidence that an otherwise admissible confession is false , a judge may be satisfied that it is necessary to use their common-law discretion to exclude the confession.… such an exercise of judicial discretion is directed to preventing the unfairness of exposing an accused to the possibility of conviction on evidence upon which it would be unreasonable to rest a verdict…” (para. 62) [ 86 ] I keep in mind Justice Watt’s concern in Spackman , that the balancing exercise I am undertaking “brushes up uncomfortably close to the jury’s function of weighing the evidence”. [ 87 ] There is no clear, cogent and compelling evidence that his statements are “false”, thus making it necessary for me to exclude Mr.

Clyke’s confessions. To the contrary, Mr. Clyke’s confessions have significant indicia of reliability. [35] Furthermore, I conclude on the basis of a cost-benefit analysis inherent in the general probative value/prejudicial effect test, that their probative value significantly outweighs any prejudicial effect on Mr. Clyke’s fair trial rights. [ 88 ] In

summary, I am amply satisfied that: the probative value of Mr. Clyke’s two statements significantly outweigh any conceivable prejudicial effect upon his fair trial rights; and that the evidence was not obtained in an unfair manner ( Harrer ). Conclusion [ 89 ] I am satisfied beyond a reasonable doubt that both Mr. Clyke’s statements were given voluntarily, including that he had an operating mind throughout the relevant time periods. Moreover, the probative value of his statements significantly outweighs any conceivable prejudicial effect on his fair trial rights.

[90] Both statements are admissible at trial. [36] Rosinski, J. [2] This concession tends to support the conclusion that Mr. Clyke must have had an operating mind at the time he received thoseadvisements and information—paras. 35 and 45-6 in Whittle. Nevertheless, I will not rely thereon at present, but go on to considerwhether Mr. Clyke had an operating mind at the time he gave his two statements, without taking the effect of that concession intoaccount. [4] “Unfit to stand trial” is defined in

section 2 CC as: “means unable on account of mental disorder to conduct the defence at any stageof the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to(

a) understand the nature or object of the proceedings, (

b) understand the possible consequences of the proceedings, or (

c) communicatewith counsel”.

Section 16 (2) CC reads: “every person is presumed not to suffer from a mental disorder so as to be exempt from criminalresponsibility by virtue of subsection (1) until the contrary is proved on the balance of probabilities.” [5] I bear in mind the comments of the court in R v Lifchus, (SCC), [1997] 3 SCR 320, regarding what is “reasonabledoubt” in the context of whether guilt had been proved beyond a reasonable doubt, which can be adapted to this voir dire. [9] In some respects this argument is analogous to cases of “incomplete” statements of accused persons, to the extent that in those cases,there are unintelligible portions (viz., in the sense that the words are discernible, but incapable of meaning-such as in Ferris) or knowngaps (where one would expect words to be present but they are not – such as was the case in Ferris) in Mr Clyke’s statements, but whichalso contain intelligible portions.

In such cases, courts will do an assessment of whether, in spite of those (unintelligible/unknown wordsuttered) portions of a statement, the entire statement should be permitted to be put to the trier of fact. Generally, to be relevant andtherefore probative of some fact in issue, which can include credibility, (see Cory J in R v Arp, 3 SCR 339 at para. 38) the jurisprudencedictates that there must be some evidence from which the true meaning of the words can be directly understood, or inferred by the trierof fact, before the purported admissions become sufficiently relevant to be put to the trier of fact. In

summary, one would thereforeinclude as evidence at trial the words of purported admissions by an accused which may be contextually capable of direct or inferredmeaning. The burden is on the party tendering the evidence-See R v Ferris, 1994 ABCA 20 , [1994] AJ No. 19 (CA) at paras.12 – 31; affirmed (SCC), [1994] 3 SCR 756; see also R v Assoun, 2006 NSCA 47 at paras. 191 – 195. [11] I note here that there was no evidence that supported the claimed existence of a group that Mr. Clyke referred to as “Cartel L”.Whether Mr.

Clyke, who did not testify at the voir dire, felt compelled by any such delusions to give his statements to police, he onlylater expressly identified generally “people” to Dr. Kronfli (December 5, 2016) and specifically “Cartel L” to Constables Bowers andShupe (December 7, 2016). However Dr. Theriault (in cross-examination) testified based on what I would consider to be a paucity ofreliable information and evidence, that in his opinion, Mr. Clyke “may have felt compelled to follow them”.

He did not articulate thelevel of confidence with which he stated that opinion. [12] Which would include appropriate jury instructions, particularly in cases of claimed false confessions with underlying mental healthissues: Eg., See – R v Ball, 2019 BCCA 32 at paras. 53-58. [13] I observe here that it is not proper for the court or counsel to suggest to jurors that Mr.

Clyke’s statements have, as a result of thevoir dire, been found to be voluntarily given – R v Falconer, 2016 NSCA 22 at paras. 62-3. [16] At para. 39 in Whittle, Justice Sopinka stated: “In R v Nagotcha, (SCC), [1980] 1 SCR 714, the accused had beendiagnosed as a paranoid-schizophrenic and contended that on that account his statement could not be admitted as voluntary. In deliveringt

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