R. v. Ammaklak, 2022 MBKB 231

Date: 20221202 Docket: CR 21-01-38741 (Winnipeg Centre) Indexed as: R. v. Ammaklak Cited as: 2022 MBKB 231 COURT OF KING’ S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, -and- ) Carrie D. Ritchot ) Manoja Moorthy ) for the Crown ) SILAS AMMAKLAK, accused. ) Saheel Zaman ) Caleigh Glawson ) for the accused ) ) Oral Judgment Delivered : ) November 28, 2022 ) ) Written Judgment Delivered : ) December 02, 2022 BOND J. RULING ON ADMISSIBILITY OF ACCUSED’S STATEMENT INTRODUCTION [ 1 ] On August 18, 2020, Silas Ammaklak was arrested and charged with murder in the death of Danielle Harper. Ms.

Harper had been reported missing on July 12, 2020 and her body had been discovered in Mr. Ammaklak’s apartment on July 23, 2020. [ 2 ] Mr. Ammaklak turned himself in to police custody on August 18, 2020. He was arrested and interviewed by Winnipeg Police Service (WPS) homicide detectives. During the interview, Mr. Ammaklak confessed to killing Ms. Harper. [ 3 ] The Crown sought to have his confession entered into evidence at his trial, and the defence opposed.

The onus is on the Crown to prove beyond a reasonable doubt that the statement was voluntary. [ 4 ] In addition, the defence sought to have the statement excluded from evidence in the trial on the basis that it was obtained in a manner that was in breach of Mr. Ammaklak’s right to counsel protected by the Canadian Charter of Rights and Freedoms , Constitution Act, 1982 ( Charter ). The onus is on the defence to prove that Mr.

Ammaklak’s right to counsel was breached and that the evidence should be excluded. [ 5 ] These two issues were addressed together in a blended voir dire . [ 6 ] The evidence in the voir dire consisted of testimony from WPS Homicide Detectives Mymryk and Yerex, as well as a video

recording of the interview itself. Although the two detectives were not entirely consistent in their evidence, any inconsistencies betweenthem were immaterial. The defence called no evidence on the voir dire. The facts are fairly straightforward. [7] As I will explain, the defence argument in relation to both voluntariness and the alleged Charter breach was based, to asignificant extent, on the assertion that Mr. Ammaklak has cognitive limitations and does not speak English as his first language. Mr.Ammaklak was born in Nunavut and spoke Inuktitut as his first language. He moved to Winnipeg in 2014.

Prior to arresting Mr.Ammaklak, the police were informed by a street outreach support worker, Corinne Edwards, that Mr. Ammaklak has cognitivelimitations. ISSUES [8] For the reasons that follow, I have concluded that the statement is admissible. The issues decided are: 1. Did the police violate Mr. Ammaklak’s s. 10(

b) Charter right by failing to inform him of his right to counsel immediately uponarrest? Answer: Yes 2. Did the police violate Mr. Ammaklak’s s. 10(

b) Charter right by failing to take additional steps to confirm his understanding ofhis right to counsel when they did inform him? Answer: No 3. If there was a violation of Mr. Ammaklak’s s. 10(

b) Charter right should his statement be excluded pursuant to s. 24(2) of theCharter? Answer: No 4. Has the Crown proved beyond a reasonable doubt that the statement given by Mr. Ammaklak was voluntary? Answer: Yes 5. Was Mr. Ammaklak’s statement obtained in violation of his right to silence protected by s. 7 of the Charter? Answer: No ISSUE #1 – Did the Police Violate Mr. Ammaklak’s s. 10(

b) Charter Right by Failing to Inform Him of His Right to CounselImmediately Upon Arrest? [9] The right to counsel protected under s. 10(

b) of the Charter imposes two obligations on the police when they detain a person. The first is to inform the detainee of his right to consult counsel without delay and the second is to provide the detainee a reasonableopportunity to contact counsel should he choose to exercise that right (R. v. Suberu, 2009 SCC 33 , at para. 38). At issue here isthe first obligation. The defence argued that the detectives in this case failed to advise Mr.

Ammaklak of his right to counselimmediately upon his arrest and that the delay was not justified. [10] The law is clear that the right to counsel arises immediately upon detention, and that police are obliged to advise a detainee ofthat right immediately upon his detention, unless issues of officer or public safety justify delay (Suberu at para. 42). This principle hasbeen described recently by the Manitoba Court of Appeal as “…the longstanding law requiring police officers to provide

section 10(b)Charter rights to detainees immediately absent police officer safety concerns.” (R v F (JM), 2022 MBCA 52 , at para. 65.) [11] Mr. Ammaklak turned himself in to police custody on August 18, 2020 at approximately 9:00 AM. Mr. Ammaklak and hisfriend, Daniel Mueller, met with Detective (Det.) Mymryk and Detective Sergeant (D/Sgt.) Yerex outside the WPS headquarters buildingon St. Mary Avenue. Mr. Ammaklak was placed under arrest at that time by Det. Mymryk who told Mr. Ammaklak that he was underarrest for the murder of Ms. Harper. Before Mr. Ammaklak was taken into the WPS headquarters, he hugged Mr.

Mueller, andaccording to D/Sgt. Yerex, Mr. Ammaklak and Mr. Mueller prayed together. [12] Mr. Ammaklak was taken inside the WPS headquarters building, through the lobby and into an area called the sallyport. Thisarea is designed to receive suspects who have been arrested and transported to WPS headquarters in a police car. There the detectivessearched Mr. Ammaklak, and seized his belongings, including a backpack. The clothes he was wearing were seized by assistingofficers. A prisoner log sheet was filled out and Mr. Ammaklak was viewed in by the Sergeant (Sgt. Rommell), in accordance with theusual practice.

The prisoner log sheet was filed as an exhibit in the voir dire. It, along with the testimony of the detectives, indicates thatMr. Ammaklak was asked about whether he suffered any medical conditions, required medication, had mental health concerns, wassuicidal, intoxicated or violent, or was a user of street drugs. Mr. Ammaklak responded “No” to all of those questions. [13] Mr. Ammaklak was then seen by paramedics who checked on his condition. No concerns about his health were raised at thattime. [14] Mr.

Ammaklak was placed in an interview room at 9:32 AM and the room’s video recording system was activated at that time.Mr. Ammaklak was interviewed by Det. Mymryk and D/Sgt. Yerex. Det. Mymryk began by reviewing the events that had occurred thatmorning and confirming that they had met outside the police building, and that Det. Mymryk had told Mr. Ammaklak that he was underarrest for the murder of Ms. Harper. Det. Mymryk then formally provided Mr. Ammaklak with his notice of arrest for the murder of Ms.Harper and confirmed that Mr. Ammaklak understood what he was under arrest for. He also informed Mr.

Ammaklak of his right tocounsel for the first time. Over 30 minutes had elapsed since Mr. Ammaklak’s arrest outside WPS headquarters. This 30 minute delaywas not due to concerns for the safety of officers or the public. [15] I agree with counsel for Mr. Ammaklak that the delay in informing Mr. Ammaklak of his right to counsel resulted in a breach ofs. 10(

b) of the Charter. The police had an obligation to advise Mr. Ammaklak of his right to counsel immediately upon his arrest, unlessthere was a concern for officer or public safety. The explanations given by the detectives for the delay related to privacy and suitabilityof the location. They said they wanted to avoid informing him of his right to counsel outside on a busy street or inside the WPSheadquarters building in the lobby or hallway area. While there is no suggestion in the evidence that the detectives were deliberatelydelaying Mr. Ammaklak’s right to counsel for some improper purpose, their reasons for the delay are not justifications under the law.

[16] I want to be clear that my finding of a breach is in relation to the delay only. I do not accept defence counsel’s argument that thedetectives ought to have given Mr. Ammaklak his right to counsel in the presence of Mr. Mueller. This argument was on the basis thatMr. Mueller and Ms. Edwards had told the police that Mr. Ammaklak would need Legal Aid. The argument suggested that it wouldhave been better for Mr. Ammaklak if Mr. Mueller had been present.

I find there is no legal basis for the argument. [17] In addition, I do not agree with the suggestion made by defence counsel that it was inappropriate for the detectives to seize Mr.Ammaklak’s clothes upon his arrest. Counsel argued that this was on the basis of a stereotypical view of homeless people as people whodo not change their clothes. Although Ms. Harper’s homicide had clearly occurred approximately a month prior to Mr. Ammaklak’sarrest, it was not unreasonable, in my view, for the police to seize his clothing upon his arrest.

Despite the passage of time it was notunreasonable in the circumstances to believe that Mr. Ammaklak’s clothes could have evidentiary value. Seizing the clothing was not,however, a valid reason to delay informing Mr. Ammaklak of his right to counsel. ISSUE #2 – Did the Police Violate Mr. Ammaklak’s s. 10(

b) Charter Right by Failing to Take Additional Steps to Confirm HisUnderstanding of His Right to Counsel When They Did Inform Him? [18] To satisfy their duty to inform a detainee of his right to consult counsel, the information police provide must be clear, instructiveand comprehensible. Generally, police are not required to assure themselves that a detainee fully understands the s. 10(

b) Charternotice. However, in special circumstances that indicate that a detainee may not understand, such as obvious language difficulties ormental disability, it may be necessary for police to take steps to ensure that the detainee understands his rights. If there arecircumstances that suggest that a particular detainee may not understand the information being communicated by the police regarding hisright to counsel, the standard notice given may not be enough to satisfy the police informational duty (R. v.

Bartle, (SCC), at p. 192-193). [19] Circumstances that may trigger the requirement for police to make additional efforts to confirm that a detainee understands hisright to counsel may include language difficulties or cognitive limitations that are evident to the police. It is not necessary for thedetainee to directly communicate to police that he does not understand. The lack of understanding may be inferred from the manner inwhich the detainee is communicating, for example if his answers to questions are nonresponsive or nonsensical (R. v.

Devries, 2009ONCA 477 , at para. 38). [20] In his argument, counsel for Mr. Ammaklak relied on the recent decision of the Supreme Court of Canada in R. v. Lafrance,2022 SCC 32 . That case deals, in part, with the law outlined in R. v. Sinclair, 2010 SCC 35 , regarding the policeobligation to provide a detainee who has already consulted with counsel an opportunity to consult with counsel a second time in certaincircumstances. Those circumstances include where it becomes evident that the detainee did not understand the initial advice and sorequires a second consultation.

I do not agree that Lafrance has changed the law that would apply in this case regarding theinformational duty imposed on police by s. 10(

b) of the Charter which is at issue here. [21] Det. Mymryk provided Mr. Ammaklak his right to counsel as follows: (Transcript: Statement of Silas Ammaklak, dated August18, 2020 (Transcript), p. 6 lines 10-25 and p. 7 lines 1-17) Det. Mymryk: … So you also have some rights, okay? Silas Ammaklak: Yes. Det. Mymryk: I’m going to go over those rights with you. So if you don’t understand something I’m saying let me know, okay? Silas Ammaklak: Okay. Det. Mymryk: So Silas, you have the right to retain and instruct counsel in private without delay. Silas Ammaklak: Mm-hmm. Det.

Mymryk: This means that before we proceed with our investigation you may call any lawyer you wish or get free legal advicefrom duty counsel immediately. If you want to call duty counsel, we will provide you with a telephone and telephone number. If youwish to contact any other lawyer, a telephone and telephone book will be provided. Silas Ammaklak: Mm-hmm. Det. Mymryk: If you are charged with an offence, you may also apply to Legal Aid for assistance. Silas Ammaklak: Mm-hmm. Det. Mymryk: Do you understand?

Silas Ammaklak: Yes. Det. Mymryk: Allright. Do you want to call duty counsel or any other lawyer? Silas Ammaklak: It’s okay for now. You guys can ask me questions. I give you guys permission and I trust you guys are being honest. Det. Mymryk: Okay. If you’d like to speak to counsel at any time let me know. Silas Ammaklak: Okay. Det. Mymryk: Is that fair? Silas Ammaklak: Mm-hmm. [ 22 ] The wording used by Det. Mymryk to inform Mr. Ammaklak of his right to counsel is standard wording used by WPS officers. It is clear and understandable. Mr. Ammaklak confirmed that he understood.

His answers were responsive to the questions. There was no indication that he did not understand. [ 23 ] Det. Mymryk then provided Mr. Ammaklak with a standard police caution: (Transcript, p. 7 lines 18-25 and p. 8 lines 1-2) Det. Mymryk : Okay. So Silas, you are not bound to say anything, - - Silas Ammaklak: Mm-hmm. Det. Mymryk : - - but any word or act while in the custody of the police may be subject to written, audio and/or video recording. Silas Ammaklak: Yes. Det. Mymryk : Any such recordings may be used as evidence. Do you understand that? Silas Ammaklak: Mm-hmm. Yes. [ 24 ] Det. Mymryk then told Mr.

Ammaklak that the room they were in was a video and audio room so that anything they talk about in the room would be recorded. Again, when asked if he understood, Mr. Ammaklak said “Yes”. [ 25 ] The wording used by Det. Mymryk to caution Mr. Ammaklak that he was not required to say anything and that anything he did say could be used as evidence is standard wording. It is clear and understandable. Mr. Ammaklak confirmed that he understood. His answers were responsive to the questions. There was no indication that he did not understand. [ 26 ] Although the detectives had been advised by Ms. Edwards that Mr.

Ammaklak had cognitive limitations, there was no evidence of the extent of those limitations, nor how any such limitations identified by Ms. Edwards might affect his ability to understand his right to counsel or caution. In my view, the mere reference to cognitive limitations was not sufficient to require the detectives to take additional steps to confirm Mr. Ammaklak’s understanding of his right to counsel. The testimony of Det. Mymryk and D/Sgt.

Yerex, as well as that of Patrol Sergeant (P/Sgt.) Dowd, who had monitored the interview by way of the video monitoring system, was consistent that they did not have any concerns about Mr. Ammaklak’s ability to understand what was being said to him. Each of the detectives gave credible evidence in relation to that issue. More importantly, I find their evidence to be consistent with my view of the recorded interview of Mr. Ammaklak. [ 27 ] At the beginning of the video recorded interview, Det. Mymryk reviewed with Mr. Ammaklak the prisoner log sheet that had already been completed. Mr.

Ammaklak confirmed that he had no medical conditions, was not intoxicated, had no mental health issues, was on no medication, was not suicidal, and did not use any street drugs. The answers given by Mr. Ammaklak to the questions on the prisoner log sheet raised no concerns about his mental condition or his ability to understand what the detectives were saying to him or asking him. [ 28 ] At the beginning of the interview Mr. Ammaklak confirmed that he had been collecting “welfare” and had a support worker named “Corinne” who helped him with housing. He referred to himself as an “Eskimo”.

He said that he was born and raised in Nunavut and explained that it had been called the Northwest Territories but became the Nunavut Territory in 1999. He had moved from Nunavut to Winnipeg in 2014. [ 29 ] Mr. Ammaklak told police that he attended Anchor Point Church on Pembina Highway and that he met Mr. Mueller there. (Before turning himself in to police, he had stayed at Mr. Mueller’s home.) Mr. Ammaklak said that he wanted to be religious and to follow Jesus. Mr. Ammaklak described the places that he lived in Winnipeg, and that Ms. Edwards had helped him find housing.

He also said he had been involved with the Eagle Urban Transition Centre, and that he had attended on-the-job training as a heavy equipment operator. He described doing “Eskimo animal art” by carving soapstone.

[30] Although Mr. Ammaklak did not come across as a sophisticated or highly educated man, there is nothing in the early stage of theinterview to suggest that he did not understand the questions being asked of him. His answers to questions were responsive and his use oflanguage appropriate. He had no difficulty understanding what Det. Mymryk was saying to him. [31] There was one point during the interview where Mr. Ammaklak said he did not understand a word that Det. Mymryk used. When Det. Mymryk used the word “altercation”, Mr. Ammaklak asked, “What does altercation mean?” and Det.

Mymryk answered “Afight.” (Transcript, p. 58 lines 24-25 and p. 59 line 1) Mr. Ammaklak then responded appropriately. Clearly Mr. Ammaklak had thecapacity to ask for clarification when he did not understand. [32] Later in the interview, Mr. Ammaklak told the detectives that he was “… finally telling the truth”. The following exchange thentook place: (Transcript, p. 168 lines 6-25 and p. 169 lines 1-3) Silas Ammaklak: And if I’m going to be given a lawyer, all this recording conversation I will like the lawyer to have a record of it andall those pictures, please, if you will. Det. Mymryk: For sure.

Silas Ammaklak: Okay. Det. Mymryk: Yeah. Silas Ammaklak: Thank you. Det. Mymryk: Yeah, your lawyer-- so when we’re done here,-- Silas Ammaklak: Yeah. Det. Mymryk: --you’d like your lawyer to get all this stuff? Silas Ammaklak: Yes, please. Det. Mymryk: Okay. Silas Ammaklak: Mm-hmm. Det. Mymryk: That’s definitely doable, yeah. Silas Ammaklak: Mm-hmm. Det. Mymryk: He’ll get all this and everything that you told us, okay? Silas Ammaklak: Yes, sir. [33] Defence counsel argued that this exchange indicated that Mr.

Ammaklak did not understand his right to counsel when he wasinformed of it at the beginning of the interview. Respectfully, I disagree. In my view, this exchange indicates that Mr. Ammaklakunderstood that he may have a lawyer to represent him and the recording of the interview would be important evidence for his lawyer tohave. Contrary to the argument of counsel, in my view Mr. Ammaklak’s reference to having a lawyer represent him in the future was notan indication that Mr.

Ammaklak did not understand at the beginning of the interview that he had a right to consult with counsel beforeanswering any questions. [34] Based on all of the evidence, and in particular on the video recording of the interview which allowed me to observe Mr.Ammaklak and his communication with Det. Mymryk, I find that there was no basis upon which the police were obliged to take extrasteps to confirm that Mr. Ammaklak understood his right to counsel.

I find this case to be similar to cases relied on by the Crown wherefurther steps were not required to ascertain the detainee’s understanding of his right to counsel because there was no outward indicationof a lack of understanding (Devries at para. 38; R. v. Dunford, 2017 SKCA 1 , at para. 27). In one of the cases relied on by thedefence, the accused’s lack of understanding of his right to counsel was clearly evident from his incongruent responses (R v Singh, 2015ONSC 7376 , at paras. 12-16). That is not the case here. [35] I find no breach of s. 10(

b) of the Charter in the manner in which Det. Mymryk advised Mr. Ammaklak of his right to counsel.

The circumstances did not oblige the detectives to take additional steps to confirm Mr. Ammaklak’s understanding of his right to consultcounsel. ISSUE #3 – If There Was a Violation of Mr. Ammaklak’s s. 10(

b) Charter Right Should His Statement be Excluded Pursuant tos. 24(2) of the Charter? [36] Having found the police violated Mr. Ammaklak’s s. 10(

b) Charter right by failing to inform him of his right to counselimmediately upon his arrest, I must consider whether his statement should be excluded under s. 24(2) of the Charter. [37] The first question is whether the statement was “obtained in a manner” that breached his s. 10(

b) Charter right. This requires aconsideration of the connection – temporal, contextual or causal – between the breach and obtaining the statement (R. v. Tim, 2022 SCC12 at para. 78). Here, because Mr. Ammaklak was informed of his right to counsel before the detectives began asking himabout Ms. Harper’s death, there is no causal connection between the breach and obtaining the statement. The connection is temporal andcontextual. The breach occurred shortly before the interview began and arose in the context of Mr. Ammaklak’s arrest for the offenceabout which he was interviewed.

In my view, although the connection is not causal, it is not so remote such that s. 24(2) of the Charteris not triggered. I must therefore determine whether the statement should be excluded. [38] The legal framework for this determination involves three lines of inquiry as set out in R. v. Grant, 2009 SCC 32 , andrecently confirmed by the Supreme Court of Canada in Tim. [39] The first line of inquiry relates to the seriousness of the Charter infringing police conduct. I find the police conduct here to beon the less serious end of the scale.

The requirement that a detainee be informed of his right to counsel immediately upon detention islong-standing and should have been well known to the detectives dealing with Mr. Ammaklak. However, the detectives appeared to begenuinely concerned that they inform Mr. Ammaklak of his right to counsel in circumstances of privacy and in the absence ofdistractions. Mr. Ammaklak was informed of his right to counsel once he was placed into the interview room and before he was askedany questions about the offence for which he had been arrested. During the 30-minute delay, Mr.

Ammaklak was searched, his clothingwas seized, and he was asked questions about his health and mental state. Essentially, the detectives waited until after Mr. Ammaklakwas “processed” as a detainee before informing him of his right to counsel. Doing so was not Charter compliant, but it was not aflagrant breach. I find that the 30-minute delay in this case did not involve a willful or reckless disregard of Charter rights, a pattern ofCharter infringing conduct, or a major departure from a Charter standard (Tim at para. 82).

I find that this factor weighs against theadmission of the evidence, but not heavily so. [40] The second line of inquiry relates to the impact of the breach on Mr. Ammaklak’s Charter protected interests. In my view, theimpact of the breach was minimal. It involved a 30-minute delay in informing Mr. Ammaklak that he had a right to contact counsel. Nocomments regarding the offence with which he was charged were elicited.

I find that this factor weighs in favour of admission of theevidence. [41] The third line of inquiry asks whether the truth seeking function of the criminal trial process would be better served by admissionof the evidence or by its exclusion. I understand that Mr. Ammaklak’s statement is important evidence for the Crown’s case. Thebreach was not one that undermines the reliability of the evidence, in this case, because Mr. Ammaklak was not asked questions beforehe was informed of his right to counsel.

I find that this factor weighs in favour of admission of the evidence. [42] Turning to the balancing of these three factors, I find that exclusion of Mr. Ammaklak’s statement would tend to bring theadministration of justice into disrepute. Exclusion of Mr. Ammaklak’s statement would simply punish the police for a relatively minorbreach of the Charter, and this is not the purpose of s. 24(2) of the Charter. Excluding his statement in this case would, in my view,damage the long-term repute of the criminal justice system (Tim at paras. 98 and 99). Mr.

Ammaklak’s statement will not be excludedas a result of the Charter breach. ISSUE #4 – Has the Crown Proved Beyond a Reasonable Doubt That the Statement Given by Mr. Ammaklak was Voluntary? ISSUE #5 – Was Mr. Ammaklak’s Statement Obtained in Violation of His Right to Silence Protected by s. 7 of the Charter? [43] I will deal with these two issues together. If the Crown proved beyond a reasonable doubt that the statement was voluntary, thenthere has been no breach of the right to silence (R. v.

Singh, 2007 SCC 48 (Singh), at paras. 36 and 37). [44] The law regarding the admissibility of an accused's statement made to a person in authority is well established. An accused'sstatement will be admissible at trial only if it is proven to have been voluntarily given. The Crown bears the onus of proving that thestatement was voluntary. The Crown must prove voluntariness beyond a reasonable doubt (R. v. Tessier, 2022 SCC 35 , at para.68; R. v. Oickle, 2000 SCC 38 ). [45] The inquiry is contextual and fact specific, requiring the weighing of factors relevant to a particular case.

It involvesconsideration of a number of elements. The statement must be the product of an operating mind. The statement must not have beenobtained by police through the operation of trickery, oppression, threats or promises. These factors that must be considered are not achecklist. It is important to consider all of the circumstances to determine whether the Crown has proved, beyond a reasonable doubt,that Mr. Ammaklak’s statement was voluntary. The ultimate question is whether Mr. Ammaklak exercised free will by choosing tomake a statement (Singh at para. 53). [46] The arguments raised on Mr.

Ammaklak’s behalf regarding his cognitive limitations brings the operating mind requirement into

focus. This requirement means that for his statement to be admissible, Mr. Ammaklak must have had the limited cognitive ability to understand what he was saying and to comprehend that any statement he made may be used as evidence in criminal proceedings. This is a necessary but not sufficient prerequisite to admissibility ( Tessier at paras. 50-52 ). [ 47 ] Even if the operating mind threshold is met, I must also consider whether the police obtained a statement through the operation of an improper inducement, threat, trickery, or oppressive atmosphere. The question of voluntariness is an objective one. Mr.

Ammaklak’s particular vulnerabilities are relevant to this inquiry, although not determinative ( Tessier at para. 56 ). [ 48 ] The Crown argued that the evidence, and in particular the video recording, should satisfy the Court beyond a reasonable doubt that Mr. Ammaklak’s confession was voluntary. The Crown argued that Mr. Ammaklak turned himself in to police custody with a story that he wanted to tell.

They argued that the issues raised by the defence do not raise a reasonable doubt about the voluntariness of his confession. [ 49 ] The defence argued that I should have a reasonable doubt about the voluntariness of Mr. Ammaklak’s confession based on a number of factors taken together: • The Crown failed to call Sgt. Rommel before whom Mr. Ammaklak was brought when he was first taken into custody; • The testimony of the two detectives lacked overall credibility and reliability; • Mr. Ammaklak was cold and provided with only one blanket; • Mr.

Ammaklak had been homeless at least since the alleged homicide and so was dependent on the police for food, which they provided him during the interview; • Mr. Ammaklak expressed trust and gratitude towards the police; • Mr. Ammaklak was particularly vulnerable due to his lack of education, limited understanding of the English language, homelessness for periods of time, and reliance on Street Outreach services for support; • The detectives exploited Mr. Ammaklak’s vulnerabilities by failing to confirm Mr. Ammaklak’s understanding or clarify their role as investigators; • The detectives exploited Mr.

Ammaklak’s relationship with his support worker, Ms. Edwards, and his friend, Mr. Mueller; and • The detectives asked questions about other possible crimes without advising Mr. Ammaklak again of his rights. [ 50 ] As I will explain, I find that none of the concerns raised individually or taken together raise a reasonable doubt regarding the voluntariness of Mr. Ammaklak’s statement. I will begin with the alleged weaknesses in the evidence. [ 51 ] The Crown called three witnesses in the voir dire . Det. Mymryk, D/Sgt. Yerex, and P/Sgt. Dowd. P/Sgt. Dowd was the monitor for the interview.

His role was to observe Mr. Ammaklak in the interview room both during the interview and during the periods when the detectives were not present in the interview room. On one occasion P/Sgt. Dowd responded when Mr. Ammaklak expressed his need to go to the washroom, and was alone with Mr. Ammaklak for a brief period of time as a result. There is no suggestion that anything that P/Sgt. Dowd said or did during this time could raise a doubt about the voluntariness of Mr. Ammaklak’s statement. [ 52 ] Det. Mymryk and D/Sgt. Yerex both testified that they offered no inducement nor threatened Mr.

Ammaklak to provide a statement. I accept their testimony. Further, both Det. Mymryk and D/Sgt. Yerex testified that when they brought Mr. Ammaklak before Sgt. Rommel, he did not offer any inducement or threat to Mr. Ammaklak. I accept their testimony in this regard as well. Sgt. Rommel did not testify and his interaction with Mr. Ammaklak was not recorded on video nor on the prisoner log sheet. It is true that in certain circumstances the absence of evidence from certain witnesses may result in a gap in the evidence that may raise a reasonable doubt about voluntariness. This is not one of those cases. Mr.

Ammaklak was not alone with Sgt. Rommel. Their interaction was brief and observed by Det. Mymryk and D/Sgt. Yerex. [ 53 ] The defence argued as well that I should have concerns about the overall credibility and reliability of the testimony of Det. Mymryk and D/Sgt. Yerex. Counsel pointed to some aspects of their testimony that he said should raise concerns such as: • The detectives gave inconsistent testimony regarding whether or not Mr. Ammaklak shared a prayer with Mr. Mueller before going with the detectives into the WPS headquarters; • Det. Mymryk testified that there had been minimal conversation with Mr.

Ammaklak prior to commencing the video recorded interview, but during the interview Det. Mymryk asked Mr. Ammaklak about something Mr. Ammaklak had said prior to the interview about getting paint on his ear while he was at Mr. Mueller’s. In his testimony, Det. Mymryk said he had observed the paint but then acknowledged they must have talked about it; • The detectives gave inconsistent testimony about the availability of more than one blanket for Mr. Ammaklak; • Both detectives said they were not aware of the smoking policy in the WPS headquarters building and allowed Mr. Ammaklak to smoke; • Det.

Mymryk testified that he believed he had asked Mr. Ammaklak about his education during the interview but clearly he had not; • D/Sgt. Yerex testified in direct examination that after Mr. Ammaklak’s clothing was seized from him he was given a paper shirt to wear but there were no pants available and D/Sgt. Yerex struggled to remember what Mr. Ammaklak wore on the lower half of his body

during the interview. In cross-examination, and after a recess, D/Sgt. Yerex testified that he now remembered from reviewing his notes and the video of the interview, that Mr. Ammaklak had been given paper pants to wear once he had been taken from the sallyport to the Central Processing Unit. When asked, he denied reviewing his notes or video during the recess. To explain the inconsistency he said that he had not understood the question asked in direct examination; • Both detectives testified about their usual practice and did not appear to have independent recall of their interaction with Mr.

Ammaklak. [ 54 ] None of the concerns raised by defence counsel lead me to question the detectives’ overall credibility and reliability such that I would reject their testimony in its entirety. Their reliance on their usual practice in relation to some of their dealings with Mr. Ammaklak does not necessarily call their reliability into question. It is not inappropriate for a police officer to testify in relation to a routine task that he always does it the same way and he did it that same way on this particular occasion.

The alleged inconsistencies in the detectives’ testimony regarding some details were few and were either not really inconsistencies or were comparatively immaterial. For example, the testimony of D/Sgt. Yerex regarding at what point Mr. Ammaklak was given pants was confused, and it is difficult to imagine that the confusion arose from the question itself. However, in my view, the confusion was genuine rather than intentionally deceptive, and clearly at the beginning of the interview Mr.

Ammaklak was wearing the paper-like or Tyvek pants that had been provided to him. [ 55 ] Overall, the absence of testimony from Sgt. Rommel, and the alleged weaknesses in the testimony of the detectives, do not raise a reasonable doubt regarding the voluntariness of Mr. Ammaklak’s statement. [ 56 ] I will turn now to the issues that relate to Mr. Ammaklak’s physical comfort. After the detectives had seized Mr. Ammaklak’s clothing they gave him a suit and booties that were made of a paper-like or Tyvek material. From the video, the clothing appears to be somewhat stiff and thin, but it completely covers Mr.

Ammaklak’s body with full-length pants and full sleeves. The booties appear to be similar to those used in a medical setting and completely cover his feet. Approximately six hours after first being placed into the interview room, Mr. Ammaklak said he was cold and asked for two blankets. The detectives provided him with one. Det. Mymryk told Mr. Ammaklak that he could only give him one and that he should be able to wrap himself up in it. In his testimony, Det. Mymryk said he did not remember Mr. Ammaklak asking for more than one blanket, although clearly he had. D/Sgt.

Yerex testified that they were only able to give Mr. Ammaklak one blanket because there was a limited supply. Although the detectives’ testimony was somewhat inconsistent regarding the reasons why Mr. Ammaklak was not given a second blanket, I do not find that the failure to provide the second blanket was in any way a deliberate attempt to make Mr. Ammaklak uncomfortable. Nor did it have a significant impact on his comfort. [ 57 ] In my view, the detectives properly and appropriately took care of Mr. Ammaklak’s physical needs and comfort while he was in their custody. They gave Mr.

Ammaklak food as he requested it, on more than one occasion. They gave him water, coffee, and cigarettes when he asked. When he asked to go to the bathroom, he was escorted to the bathroom promptly. Contrary to the defence argument, at no point did the detectives suggest to Mr. Ammaklak that he had to tell them more before he would be given more food. There was one instance where Det. Mymryk told Mr. Ammaklak to think hard about what else he could remember while they left the room to get him more food.

However, there was no suggestion that the food would be withheld if he did not speak and, in fact, the food was provided before the detectives returned to the interview room to ask further questions. [ 58 ] At various points during the interview, as well as during times when the detectives were outside of the interview room, Mr. Ammaklak became emotional. He cried, at times sobbing loudly, and he prayed. At other times, Mr. Ammaklak appeared quite calm, eating food, smoking cigarettes and sipping coffee. Other than covering himself with the blanket to keep warm, Mr.

Ammaklak showed no outward signs of physical discomfort. His emotional upset appeared to be connected to his distress about Ms. Harper and what had happened, not his treatment by police. [ 59 ] I find that the interview was conducted in a calm and respectful manner and that there was nothing aggressive or intimidating in the tone or manner of questioning. Det. Mymryk, who conducted the majority of the interview, never raised his voice, never showed any frustration, and never showed any disrespect or antipathy towards Mr. Ammaklak. D/Sgt.

Yerex’s manner was likewise calm and respectful. [ 60 ] I agree with Crown counsel that from the beginning of the interview Mr. Ammaklak seemed keen to tell the detectives his version of what had happened to Ms. Harper. Indeed, before the interview began, while Det. Mymryk was reviewing the prisoner log sheet with Mr. Ammaklak, he said that he had been traumatized “… from seeing that lady on the floor and seeing the blood.” He then went on to tell the police about two “Native guys” who had been at his home. Det.

Mymryk asked him to wait until they had finished with the prisoner log sheet (Transcript, p. 10 lines 11–22). [ 61 ] At no point during the interview did Mr. Ammaklak express any reluctance to speak with the detectives. When Det. Mymryk began to question Mr. Ammaklak about the offence, Mr. Ammaklak described meeting Ms. Harper on the street and taking her to his place. He said he made food for her and they drank some beer and vodka, which she had brought along. Mr. Ammaklak said that he got drunk and left the apartment, fell down the stairs and passed out.

He said he woke up to see two guys go into his apartment, and one was armed with a baseball bat. He said he later saw them leave the apartment and he went inside at which time he saw Ms. Harper lying with blood around her. He said he got scared, grabbed some clothing, and left. [ 62 ] Det. Mymryk told Mr. Ammaklak that the police knew that this was not true and told him that they needed him to tell the truth. Mr. Ammaklak agreed that this was not true and said that he would now tell the truth. Mr. Ammaklak then told the detectives that two guys had followed Ms.

Harper into the apartment, one was armed with a baseball bat and one with a pocket knife. He described being scared and stumbling down the stairs and running away. Again Det. Mymryk told Mr. Ammaklak that he knew he was not telling the truth and Mr. Ammaklak agreed and said again that he would tell the truth. [ 63 ] Det. Mymryk repeatedly emphasized to Mr. Ammaklak he needed to tell the truth. Det. Mymryk then told Mr. Ammaklak that police had access to video surveillance recordings that showed that he was not telling the truth about how he and Ms. Harper got to Mr. Ammaklak’s apartment. A number of times Det.

Mymryk told Mr. Ammaklak they knew he was not being honest and he agreed. A

number of times when Mr. Ammaklak said he could not remember what had happened, Det. Mymryk told him that he did remember but was leaving things out. [ 64 ] At one point, Det. Mymryk told Mr. Ammaklak that he should not have lied to Mr. Mueller and Ms. Edwards about what had happened. He told Mr. Ammaklak that he was hurting Mr. Mueller and Ms. Edwards by not being truthful. It is clear from comments that Mr. Ammaklak made during the interview (particularly towards the end of the interview when he was alone and speaking and praying) that Mr. Mueller and Ms. Edwards were important to him.

However, in my view, appealing to Mr. Ammaklak’s conscience to persuade him to tell the truth about what happened is not inappropriate. Such an appeal will only raise concerns about the voluntariness of the statement if they are such that the detainee’s will is overborne. That is not the case here. [ 65 ] Eventually, Mr. Ammaklak told Det. Mymryk “I might have stabbed her.” (Transcript, p. 14 line 1). He went on to describe how he got a pocket knife from under the coffee table and used it to stab Ms. Harper three times. He said that he stabbed her on her leg, on her chest and on her side. He said that Ms.

Harper was awake and fighting back, although they were both drunk. He said that he could tell that she had stopped breathing. He said he grabbed his backpack and left, falling down the stairs as he did. He said that he never returned to his apartment, and walked to a different part of the city where he slept outside. [ 66 ] In his description of stabbing Ms. Harper, Mr. Ammaklak referred to being told what to do by an evil voice. Earlier in the interview, Det. Mymryk had said to Mr. Ammaklak that some people say that “… evil takes over” and asked him if that happens to him sometimes (Transcript, p.57 lines 5–11).

Det. Mymryk raised this possibility again early in the interview suggesting to Mr. Ammaklak that possibly evil had taken over him, particularly with the influence of alcohol, and he had perhaps done something out of character. On its face, the introduction of this notion of evil taking over, and Mr. Ammaklak’s later reference to the evil voice, might raise concerns about the detectives putting words in Mr. Ammaklak’s mouth. However, any such concerns are alleviated when considered in the context of everything that Mr. Ammaklak said. Mr.

Ammaklak ultimately provided a detailed account of how an evil voice spoke to him, how it sounded, what it said, and in what language. This voice, he said, told him to pick up the knife and to stab Ms. Harper. He said the evil voice showed him an eternal fire and scared him. This detailed account clearly came from Mr. Ammaklak and was not the result of the detectives putting words in Mr. Ammaklak’s mouth. [ 67 ] The defence raised further concerns in this regard. At one point, Det. Mymryk asked Mr. Ammaklak if he had choked Ms. Harper or held a pillow over her face. At first Mr.

Ammaklak said he did not remember, but then said, “… I might have choked her a bit or I might have hold [ sic ] a pillow over her…” (Transcript, p. 127 lines 24–25, p. 128 line 1). When Det. Mymryk told Mr. Ammaklak not to just repeat what was being said to him Mr. Ammaklak said again that he did not remember. Later in the interview, however, Det. Mymryk told Mr. Ammaklak that stabbing Ms. Harper would not have caused her to stop breathing, and he asked Mr. Ammaklak if he had done anything to stop her breathing. Mr. Ammaklak then admitted that he had held his hand over her mouth for about two minutes.

He gave a detailed description, as well as a physical demonstration, of how he was on top of her when she was on the floor and he held his hand over her mouth until she stopped breathing. Again, this detailed account was clearly not a case of the detectives putting words in Mr. Ammaklak’s mouth. [ 68 ] In my view, the detectives did not exploit any particular vulnerabilities of Mr. Ammaklak during the interview. As I said, in my view Mr. Ammaklak did not appear to be a particularly sophisticated or well educated individual, but cognitive limitations were not evident during the interview.

Although the detectives testified that Ms. Edwards had told them that Mr. Ammaklak had cognitive limitations, there was no evidence called on the voir dire to establish whether and to what extent this was the case. Mr. Ammaklak did say during the interview that he had not done well in school, but he also referred to having been taught some math and writing. He also wrote an apology note during the interview that was coherent and understandable, with only two minor spelling errors. His command of the English language is evident during the interview, as is his understanding of the criminal justice process.

He referred to getting a lawyer, the police providing the lawyer with a recording of the interview, as well as his transfer to the Remand Centre and eventual sentencing. [ 69 ] The defence argued that the detectives exploited Mr. Ammaklak’s obvious trust in the police. At the beginning of the interview, when he declined the opportunity to contact counsel, Mr. Ammaklak stated, “… You guys can ask me questions. I give you guys permission and I trust you guys are being honest.” (Transcript, p. 7 lines 10–12) The defence said the detectives should have given Mr.

Ammaklak some clarification of their role at this point. I do not agree. In my view, there was no obligation on the detectives to clarify their role in response to Mr. Ammaklak’s expressed trust. Mr. Ammaklak’s words were not an indication that Mr. Ammaklak did not understand the role of the detectives conducting an investigation and seeking to obtain a statement from him. It is clear from the interview that Mr. Ammaklak was well aware that the detectives were seeking to obtain a statement and that whatever he said could be used as evidence.

Much of what he said initially pointed to others being responsible for Ms. Harper’s death. He later admitted that he had not been truthful. I infer from what Mr. Ammaklak said, as well as his manner in answering questions, that he was aware that any admissions could be used against him. Moreover he referred more than once to obtaining a copy of the recording of what he said for his lawyer if he got one. [ 70 ] At different points throughout the interview, Mr. Ammaklak thanked the detectives, referring to them as “kind” and “awesome”. He thanked them for the food, water, coffee and cigarettes they brought him.

He was very hungry and was clearly grateful for the food that they gave him. At the end of the video recording, when the detectives are no longer in the interview room, during a lengthy monologue or prayer, Mr. Ammaklak referred to the detectives (erroneously referring to them as RCMP) as good people and helpful. He said several times that he did not want to lie anymore. At one point he said, “… I want to stop lying so much even though I have killed that lady. Her name was Danielle now, yes, I did. I didn’t want to. I totally didn’t want to.

I’m so sorry. … ” He then thanked the detectives for “… opening heart, my mind, my will, my body and the way I hide things, and thank you so much. Thank you, thank you so much. Now I can say I’m sorry. …” (Transcript, p. 350 lines 7–10 and lines 13–15) These expressions of gratitude appeared genuine, if unusual. In my view, the detectives did not exploit Mr. Ammaklak’s trusting and grateful attitude to extract a statement from him. Mr. Ammaklak’s attitude towards the detectives was self-generated, and ultimately he appeared to be genuinely relieved to have confessed to killing Ms.

Harper. [ 71 ] One issue raised by the defence remains to be addressed. During the interview, Det. Mymryk asked Mr. Ammaklak whether he had hurt anyone else and whether he had anything else he wanted to tell them about. The defence argued that this was an impermissible

attempt to obtain information about other “hypothetical” offences without properly cautioning Mr. Ammaklak that anything he said could be used as evidence and informing him again of his right to counsel. The defence said that this was a flagrant disregard of Mr. Ammaklak’s rights and contributed to an atmosphere of oppression. I find that this brief questioning about other possible offences was of no consequence. The questioning came at the end of the interview, after Mr. Ammaklak had admitted his involvement in Ms. Harper’s death. It could not have influenced him to confess. Moreover, Mr.

Ammaklak denied any other offences and Det. Mymryk did not pursue the questioning. [ 72 ] I would summarize my conclusion as follows. Police officers are permitted to make efforts to persuade a suspect to confess to a crime. It is entirely permissible to appeal to a suspect’s conscience and to urge him to tell the truth. Police must not go so far as to undermine a suspect’s free will to choose whether or not to give a statement through the operation of improper inducement, threat, trickery or an oppressive atmosphere. I find that in this case, Mr. Ammaklak’s free will to choose was not undermined nor overborne.

Although Mr. Ammaklak appeared to be an unsophisticated person with limited education, he clearly understood what he was saying and that what he said could be used to his detriment in a criminal proceeding. [ 73 ] I am satisfied beyond a reasonable doubt that Mr. Ammaklak’s statement was voluntary. It was not obtained in violation of his right to silence. CONCLUSION [ 74 ] For the foregoing reasons, I conclude that Mr. Ammaklak’s statement is admissible evidence for his trial. His application to have the statement excluded pursuant to the Charter is dismissed. ______________________________J.