R. v. Whiteway, 2023 MBKB 144

Date: 20231004 Docket: CR 22-01-39150 (Winnipeg Centre) Indexed as: R. v. Whiteway Cited as: 2023 MBKB 144 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, ) Shane V. Smith, Rohit Sanggar ) for the Crown -and- ) ) NANCY ANGELA WHITEWAY, ) Taralee D. Walker, Kaitlynd M. Walker ) for the accused accused. ) ) ) Judgment Delivered: ) October 4, 2023 Publication Ban : Information contained in this document is subject to a publication ban in accordance with s. 648 of the Criminal Code .

N o information regarding any portion of this voir dire shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. This publication ban has expired on December 19, 2023. Reasons for Decision on the Voir Dires into the Admissibility of Comments made by the Accused immediately after her arrest and a Statement Recorded by the Police on Video REMPEL J. Introduction [ 1 ] Ms. Whiteway is charged with second-degree murder with respect to the death of George Elie Houle (the “Deceased”) on November 27, 2021.

The trial is set to start before a judge and jury on October 16, 2023. [ 2 ] There are two voir dires before me. The first voir dire deals with the admissibility of verbal comments made by Ms. Whiteway a few moments after she was arrested and taken into custody by a member of the Winnipeg Police Service (“WPS”) on December 4, 2021 and a statement that she made to WPS detectives later that same day which was recorded on video. [ 3 ] The sole issue on the first voir dire is whether the verbal comments and the statement recorded on video were made voluntarily.

The defence has not challenged the admissibility of the verbal comments or the statement recorded on video based on a potential breach of Ms. Whiteway’s rights under the Charter of Rights and Freedoms (the “ Charter ”). [ 4 ] The second voir dire deals with the admissibility of expert evidence as to the possible meaning of the word “skinner” or “skinners” which was a term used by Ms. Whiteway in both her verbal comments immediately after her arrest and in the statement recorded by the WPS on video. It is not clear who or what Ms. Whiteway might be referring to when she is using this term.

Background [ 5 ] The Crown wishes to tender the comments made by Ms. Whiteway and the expert evidence in support of its case, which is that Ms. Whiteway was motivated by hatred or revenge at the time she allegedly killed the Deceased. The Crown maintains that it can lead evidence at trial that the Deceased was known as a convicted sex offender. Further, the Crown will argue that Ms.

Whiteway’s use of the slang term “skinner”, which it claims could possibly be a reference to a sex offender or pedophile, both in her verbal comments and the statement recorded on video fits the theory the Crown is advancing as to motive. [ 6 ] The defence argues it is not clear from the evidence led on the voir dire that Ms. Whiteway was using this term to imply that the Deceased was a sex offender or what she meant to convey when she used that term.

For that reason the defence is arguing, in part, that I should use my residual discretion to exclude the impugned evidence because its prejudicial effect outweighs its probative value.

Facts [ 7 ] On the morning of December 4, 2021 the lead investigators in this homicide investigation briefed two other WPS officers (Officers Kircher and Gaspur) and confirmed to them that Ms. Whiteway was a prime suspect. The lead detectives requested that Officers Kircher and Gaspur arrest Ms. Whiteway for the killing of the Deceased on a charge of murder. Since Ms. Whiteway had no fixed address the lead detectives advised Officers Kircher and Gaspur to start their search for Ms.

Whiteway at Siloam Mission (the “Mission”) on Princess Street in Winnipeg, while they would visit one of the hotels not far away from there to start their search. [ 8 ] Shortly after their arrival at the Mission at 9:21 a.m. on December 4, 2021, Officers Kircher and Gaspur asked staff at the Mission if they recognized Ms. Whiteway from the photographs they obtained from the WPS computer systems. One of the Mission staff members not only identified Ms. Whiteway from the photographs, but also confirmed that she was currently in the dining area of the Mission wearing a black toque.

Officer Gaspur immediately texted the WPS officers assisting the lead investigators (Officer Leishman and Detective Dorsey) that the search for Ms. Whiteway had been successful and they diverted course to meet Officers Kircher and Gaspur at the Mission. [ 9 ] After making visual contact with Ms. Whiteway, it was clear to both Officers Kircher and Gaspur that the photographs they had in hand matched the person they were looking at and they walked towards the round table where Ms. Whiteway was sitting with two other males.

Breakfast was still being served at the Mission and the dining area was busy. [ 10 ] After reaching the table Officer Gaspur asked Ms. Whiteway to identify herself, which she did and Officer Gaspur then told her that she was under arrest for murder and asked if she understood that. After answering “ yes ” to that question Ms. Whiteway calmly stood up and walked around the edge of the table towards Officer Gaspur and placed her hands behind her back so she could be placed in handcuffs. [ 11 ] Officer Gaspur described Ms. Whiteway as “ very cooperative ” and she remained calm throughout their interaction with her.

The unchallenged evidence of Officers Kircher and Gaspur was that Ms. Whiteway showed no obvious signs of impairment. In particular they noted that Ms. Whiteway: • responded appropriately to their questions; • understood that she was under arrest and this would entail her being handcuffed; • was easily able to stand-up and walk without assistance; • did not smell of alcohol or show symptoms of impairment; and • showed no signs of physical injuries. [ 12 ] Officers Kircher and Gaspur decided that their best course of action was to get Ms.

Whiteway out of the dining area as quickly as possible both for her safety and theirs. The safety risk they identified came from other guests of the Mission who might be intoxicated or armed and have some reason to view WPS members in a negative light. The fact that the dining area was a noisy place also lent itself to their decision to get Ms. Whiteway into their police car as quickly as possible before issuing the formal notice of arrest and police caution to Ms. Whiteway. [ 13 ] Before Officers Kircher and Gaspur could escort Ms.

Whiteway out of the dining area Officer Leishman and Detective Dorsey met them and assumed custody of Ms. Whiteway. Officer Leishman testified that she asked Ms. Whiteway if she understood she was under arrest for murder and that more details would be given to her once they got to the police car in the parking lot. The response, if any, offered by Ms. Whiteway was not recorded in Officer Leishman’s notes and she had no recollection of what Ms. Whiteway may have said. [ 14 ] En route to the parking lot Officer Leishman asked Ms. Whiteway if she had been drinking to which Ms.

Whiteway said “ no ” and further denied having symptoms of Covid-19. No difficulties were noted in how Ms. Whiteway walked or communicated. [ 15 ] During the standard search of Ms. Whiteway for officer safety, Officer Leishman asked Ms. Whiteway if she was injured or had any medical issues. Ms. Whiteway said “ no ” to this inquiry and then spontaneously shouted out the words “ you don’t give a fuck about skinners. We always point them out and you guys don’t do anything about it .” Officer Leishman was confident these were the words used by Ms. Whiteway and that the words were accurately recorded in her notes.

Detective Dorsey recalled hearing Ms. Whiteway use substantially similar words too. There is no reference to the Deceased in this comment. [ 16 ] Officer Leishman recorded the verbal comments in her notes that she gave Ms. Whiteway a full notice of arrest and police caution in the police car at 9:36 a.m. while it was still in the parking lot of the Mission. When asked if she understood, Ms. Whiteway said “ yes ” and indicated she wanted to talk to a lawyer at Legal Aid. [ 17 ] Officer Leishman and Detective Dorsey then drove to WPS Headquarters where they arrived at 9:46 a.m. A more detailed search of Ms.

Whiteway then followed, and a prisoner log sheet was prepared which itemized her personal possessions. Further questions were asked of Ms. Whiteway, and she indicated that she had bipolar disorder and that she was a methamphetamine user. This information was recorded on the prisoner log sheet. [ 18 ] No follow-up questions were posed to Ms. Whiteway by Officer Leishman or Detective Dorsey about any potential treatments or medications she might have been receiving for bipolar disorder or any other mental health concerns. [ 19 ] Ms.

Whiteway was then taken to the central processing unit where she was presented to the Acting Sargeant for the “ viewing in ” process. An examination by a paramedic from the Winnipeg Fire Paramedic Service then followed. No medical concerns were noted

during this process and no offer of medical assistance was extended to Ms. Whiteway by any of the WPS personnel who interacted with her. [ 20 ] At 10:09 a.m. Ms. Whiteway is seen entering the video interview room on the recording of her video statement that was entered into evidence (exhibit V2) and played in court. Ms. Whiteway was given a blanket that she wrapped herself up in from head to toe and laid down on the floor. Ms. Whiteway made a phone call to a lawyer that ended at about 10:43 a.m. Ms. Whiteway indicated she was satisfied with the legal advice she received from this phone call.

At 11:23 a.m. identification officers arrived at the video interview room to take photographs of Ms. Whiteway. Ms. Whiteway cooperated fully with all of the directions she was given and then seemed to fall asleep on the floor after the identification officers departed. [ 21 ] At 12:21 a.m. Detective Sorensen from the major crimes unit introduced himself to Ms. Whiteway and inquired about anything she might need, including food or a washroom break. Ms. Whiteway declined these offers.

Detective Sorensen indicated that there was a call button in the room that she could activate if she had any questions or concerns. [ 22 ] After that Detective Sorensen indicated he would return “shortly”, but he did in fact not return until 2:50 p.m., at which time Ms. Whiteway asked him to bring her a sandwich and some water. After delivering those items Detective Sorensen popped in and out of the interview room several times with fresh inquiries as to whether Ms. Whiteway needed anything to eat or drink or if she needed a washroom break. Ms.

Whiteway declined these offers and appeared to be resting or sleeping on the floor when she was alone in the interview room. [ 23 ] The substantive interview with Ms. Whiteway did not begin until 5:34 p.m. at which time she had been in WPS custody for over eight hours. Two detectives from the major crimes unit (Detectives Dawson and Loehmer) then began questioning Ms. Whiteway by confirming the charges she had been arrested for and issuing the standard police cautions. After asserting her right to counsel, Ms.

Whiteway was given a second phone call with the lawyer she spoke to earlier. [ 24 ] The discussion turned to Ms. Whiteway’s stress level. Ms. Whiteway indicated that she was not stressed yet and her stress will only start when she gets to jail and she invited the detectives to “ imagine yourself doing four years plus ” there. She then indicated her longest sequence of incarceration up to this point was seven months. A discussion follows as to Ms. Whiteway serving time in jail which ends at 5:38:52 p.m. [ 25 ] When the jail references end, Ms.

Whiteway comments at 5:38:53 p.m. that she is “ schizophrenic, bipolar, borderline ”. Detectives Dawson and Loehmer posed no follow-up questions in response to Ms. Whiteway’s self-disclosure about her mental health. The discussion then turned to Ms. Whiteway’s contempt for the staff at the Mission at 5:41 p.m. who she described as “ fucking mules ” and “ fucking turds, perverts and pedophiles and skinners and rapists and con-artists ”. There is no reference to the Deceased in this comment either. [ 26 ] Detectives Dawson and Loehmer then let Ms.

Whiteway go on a meandering commentary that covered her views of beauty pageants, income inequality and the extinction of certain animal species before she spoke at 5:44 p.m. about “ taking her own life ” while showing her exposed arms to the detectives and mentioning “ self-mutilation ” . This sequence in the interview then concludes with what seems to be a hopeful expression by Ms. Whiteway that “ I want to live now ” and a discussion about her children. [ 27 ] Ms.

Whiteway expressed other suicidal thoughts at 5:49 p.m. when she asked a series of questions, including: Can you put me in an electric chair now please? Can I hang myself? Can I shoot myself? Can you shoot me? Can you really shoot me please? [ 28 ] None of these comments elicited any kind of concern from the detectives and they made no effort to interrupt the interview to inquire in any way about Ms. Whiteway’s mental health or to allow her to take a break to give her an opportunity to settle down from her clearly increased state of agitation.

The evidence of Detectives Dawson and Loehmer was that in their view this was nothing more than an effort by Ms. Whiteway to deflect or change the subject from their questions about the killing of the Deceased. [ 29 ] The level of anxiety expressed by Ms. Whiteway accelerated from this point. Ms. Whiteway then mentioned “ four years plus ” which seems to be her opinion of the jail time she was potentially facing for a second-degree murder conviction. Detective Dawson then tries to steer Ms. Whiteway into talking about the events leading to the death of the Deceased and she responded with “ Can you go please.

You’re upsetting me .” By now Ms. Whiteway was aggressively tugging at her hair. On the video statement Detective Dawson describes Ms. Whiteway as “ combing her hair pretty feverishly ” at 5:50 p.m. [ 30 ] Ms. Whiteway expressed a further desire to talk to her lawyer which was ignored and the detective continued to encourage her to talk about the crime. Ms. Whiteway begins to hum out loud at this point in the interview as if to soothe herself. At 5:53 p.m. Ms.

Whiteway makes a comment that “ [t]he only time you guys rush to my aid is when I’m doing something fucking retarded cause I have to be fucking survive .” Further bizarre comments from Ms. Whiteway followed including that the detective or the WPS is “ not the United States ” and “ caged monkeys ” and where “ you guys put the nuclear bombs and nuclear missiles ”. [ 31 ] A few seconds after 5:54 p.m. the detective mentions Ms. Whiteway’s belief that she will serve “ four years ” of jail time and she says “ that’s the least that you get in Canada for fucking murder ”.

The detective then makes the observation beginning at 5:58:31 p.m.: Well hear me out. You know that you’re not going to – as you say, you’re not going to ---be in jail for you know, four years. That is a

very long time. I agree with you. And I don’t know what the result is from all this and how long things – you may nor may not be injail, right. I know that part of what – but part of what determines that, Nancy…” [32] After making these comments Ms. Whiteway erupts into a series of desperately urgent demands to speak to her lawyer at LegalAid while she hides under a blanket and she repeats those demands at least 13 times in rapid succession to each comment or questionmade by the detective. Ms. Whiteway further insists that the detectives “get out” but they ignore this and attempt to continue thediscussion.

No effort is made to discuss or make inquiries about her mental health, including any medications she might need or if asecond examination by a paramedic may be in order. [33] The discussion continues with Ms. Whiteway making increasing vitriolic comments but none of them are incriminatory. Ms.Whiteway calls for help at one point from the “real police” and starts to pour her soft drink on the floor and scatter snack foods about. Ms.

Whiteway comments she feels as if she is being gang raped by the detectives and implies she has soiled herself. [34] A different set of detectives tried to revive the conversation with Ms. Whiteway at 7:37 p.m. and things only deteriorated fromthere. The Crown concedes that it has no interest in tendering any part of Ms. Whiteway’s video statement after that time. The highlevel of distress displayed by Ms. Whiteway was evident and she expressed feeling cornered and harassed. By 8:00 p.m. Ms. Whitewaystarts to cry and make guttural screaming sounds.

Shortly thereafter she strips naked while screaming at the top of her lungs. Analysis The Law [35] Under the common law confessions rule, the Crown bears the onus of proving the voluntariness of any statement made by anaccused person to a person in authority on the standard of proof beyond a reasonable doubt. (See R. v. Oickle, 2000 SCC 38 ,[2000] 2 S.C.R. 3.) [36] Oickle teaches that the “basic idea” underlying the confessions rule is the “overriding concern” that no one should be convictedof crime where there is reasonable doubt as to the voluntariness of their statement in all of the circumstances.

The analysis ofvoluntariness by the court is a contextual one and this demands that “[t]rial judges must be alert to the entire circumstances surroundinga confession in making this decision” (para. 68). [37] The Supreme Court of Canada revisited the confessions rule in R. v. Beaver, 2022 SCC 54 , and comments thatvoluntariness is the "touchstone" of the confessions rule: [47] Voluntariness, broadly defined, is the “touchstone” of the confessions rule (Oickle, at paras. 27, 32 and 69; Spencer, atpara. 11; Singh, at para. 31).

Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only thereliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and reputeof the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justicesystem (Oickle, at paras. 32 and 70; Singh, at paras. 30 and 34; Tessier (SCC), at paras. 70 and 72).

A statement may be involuntary“because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principleagainst self-incrimination and the right to silence” (Tessier (SCC), at para. 70). [48] The application of the confessions rule is necessarily flexible and contextual.

When assessing the voluntariness of a confession, the“trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable andwhether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority”(Tessier (SCC), at para. 68).

The trial judge must consider all relevant factors, including the presence of threats or promises, theexistence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”,and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry (see Oickle, atparas. 47, 66-67 and 71; Spencer, at paras. 11-12; Singh, at para. 35; Tessier (SCC), at paras. 5, 68, 76 and 87). (

b) Oppression [49] Oppression focusses on the atmosphere of a police interview. This Court has accepted that “[o]ppression clearly has the potential toproduce false confessions” because a suspect may “confes[s] purely out of a desire to escape [inhumane] conditions” (Oickle, atparas. 58 and 60).

The non-exhaustive factors that can create oppressive conditions include depriving the suspect of food, clothing, water,sleep, or medical attention; denying access to counsel; or excessively aggressive, intimidating police questioning for a long time(Oickle, at paras. 58-60; Tessier (SCC), at para. 99). [38] One of the components of proof of voluntariness beyond a reasonable doubt includes an analysis of whether the accused had an“operating mind” at the time the statement was made. R. v.

Whittle, (SCC), [1994] 2 S.C.R. 914, at pp. 939 and 941,teaches: The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she issaying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what anoperating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an activechoice, the relevant test is: Did the accused possess an operating mind?

It goes no further and no inquiry is necessary as to whether theaccused is capable of making a good or wise choice or one that is in his or her interest. . . . 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 a

caution that the evidence can be used against the accused. [39] Oickle, at para. 63, comments that the operating mind doctrine as set out in Whittle: 63 … should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule.

Indeed, in hisreasons in Horvath [citation omitted], Spence J. perceived the operating mind doctrine as but one application of the broader principle ofvoluntariness: statements are inadmissible if they are “not voluntary in the ordinary English sense of the word because they wereinduced by other circumstances such as existed in the present case”. [40] An example of the contextual analysis required under the confessions rule is provided in R. v. Bohemier, 2002 MBQB 198, 165 Man. R. (2d) 191, which involved an accused person who had fetal alcohol syndrome and chronic schizophrenia.

Inconsidering the voluntariness of the statement it was held: [46] The Crown’s position is that there was no obligation upon the police to treat Mr. Bohemier any differently than they would anyother suspect and that all suspects must be treated in the same fashion. I disagree. I believe there is a subjective element involved inpolice conduct.

If the purpose of protection, as afforded by the Charter and by the common law confessions rule, is to ensure that thestatement is voluntary and provided by an individual aware of what he or she is doing, the mental status and ability to comprehend of theparticular suspect are factors which must be taken into consideration by the police in conducting their interviews. In this case, the policewere aware of Mr. Bohemier’s mental disability. They were aware of his lack of sophistication.

Their conduct in this case, while perhapsnot oppressive in terms of an individual with a normal developmental state, did become oppressive in my view in relation toMr. Bohemier. [47] In taking a contextual approach in assessing the factors as set out by the Supreme Court of Canada in R. v. Oickle, supra, in thiscase in particular, the atmosphere of oppression and the operating mind considerations, I have a reasonable doubt as to whether theCrown has proven the voluntariness of the statement given by Mr. Bohemier in the circumstances of this case.

The Verbal Comments [41] A spontaneous comment by an accused person to a person in authority can be found to be voluntary under the confessions ruleeven if no caution was given, provided no threat or promise was made prior to the comment. (See R. v. Cook (B.), (MB CA); 113 Man. R. (2d) 168, at para. 3.) [42] All of the evidence on the voir dire points to the fact that the mind of Ms. Whiteway was not overborne at the time of her arrestin the dining area of the Mission or in the parking lot where the spontaneous comment about “skinners” was made. No oppressivecircumstances are evident during this time.

The verbal comment was unprompted and not made after a threat or promise was made. Ms. Whiteway clearly understood that she was under arrest and why she was being arrested. I am satisfied she clearly understood thejeopardy she was facing. [43] Nothing about the conduct of the WPS officers or the circumstances unfairly deprived Ms. Whiteway of a free choice to makethe comments that she did and there was no police trickery involved in this fact scenario at all.

All of the circumstances pointoverwhelmingly to the fact that this statement was voluntary. [44] The Crown maintains that it will lead evidence that the Deceased was a convicted sex offender and they will advance a theorybefore the jury that Ms. Whiteway was motivated by malice or revenge when she stabbed the Deceased.

The Crown maintains that theterm “skinner” is commonly used street slang for a sex offender or a pedophile. [45] The main argument advanced by the defence in favour of excluding this evidence is that the spontaneous comments of Ms.Whiteway are not inculpatory and have little probative value because they do not assist the Crown in proving the essential elements ofmurder that the Crown has to prove at trial. The essential elements of second-degree murder are that Ms. Whiteway caused the death ofthe Deceased unlawfully with the requisite state of mind for murder.

Overall, the defence argues that a prejudicial effect of thisspontaneous verbal comment evidence outweighs its probative value. [46] The Honourable Mr. Justice David Watt, in Watt’s Manual of Criminal Evidence, (Toronto: Thomson Reuters Canada, 2018)at

section §3.0, p. 28, states: §3.0 - Relevance Commentary Relevance is not a legal concept, rather, a matter of everyday experience and common sense. It is not an inherent characteristic of anyitem of evidence, rather, exists as a relation between an item of evidence and a proposition of fact that its proponent seeks to establish byits introduction. In determining relevance, context is critical. An item of evidence is properly characterized and rejected as irrelevant if it is not probative of the fact a party seeks to establish by itsintroduction by reason of its natural, common sense connection with that fact.

An item of evidence is relevant where it is probative ofthe fact a party seeks to establish by its introduction through the same process of reasoning. [Emphasis in the original] [47] Proof or absence of a motive can be relevant evidence. (See R. v. White, (ON CA); 108 C.C.C. (3d) 1 (Ont.C.A.), aff’d (SCC), [1998] 2 S.C.R. 72.) [48] The fact that there is no obligation on the Crown to prove a motive as part of the essential elements of murder does not make

evidence of motive irrelevant. The jury’s acceptance of a motive offered at trial could be persuasive in leading it to conclude that it is more likely that an accused person acted in a certain way and did so intentionally. [ 49 ] The problem I have with the verbal comment goes to relevance, as I do not see a logical link between it and a proposition of fact that the Crown seeks to prove. Ms. Whiteway never comments that she thinks the Deceased was a skinner.

In fact, in her subsequent video statement she uses the term “skinner” to describe the staff at the Mission, so the relevance of the comment to motive is unclear. The verbal comments are inadmissible because this evidence does not meet the test for relevance. Video Statement [ 50 ] In the main, the Crown argues that the video statement is voluntary in its entirety, but there is no need to show the jury any part of the statement after Detectives Dawson and Loehmer leave the video room for the last time at 6:28 p.m. (If that part of the video statement is deleted, the jury would not see how Ms.

Whiteway completely unravels emotionally.) Prior to that point the Crown contends that the detectives were “ overly polite and deferential ” in the two and one-half hours they interviewed Ms. Whiteway by offering her food, drink and washroom breaks well over a dozen times. There was no “ trace of mistreatment ” of Ms. Whiteway according to the Crown. [ 51 ] The Crown further argues that there was no evidence that Ms. Whiteway did not have full cognitive function or that she failed to demonstrate an operating mind. According to the Crown, Ms.

Whiteway was alert and oriented as to time and place and communicated clearly, albeit in vulgar terms, with the WPS officers. In all of the circumstances, the Crown maintains that in the absence of medical evidence by the defence that could support a theory of lack of understanding or cognition, I could easily find that the statement was voluntary beyond a reasonable doubt. [ 52 ] In support of such a possible finding the Crown points to the fact that Ms. Whiteway repeatedly commented on the fact that her lawyer told her not to say anything, which means she understood the legal advice she was given.

Overall the Crown contends that the “tactics” of the accused in acting as strangely as she did were part of an effort to deflect and force the WPS away from a topic she found distressing, which was the persistent allegation made by Detective Dawson that she killed the Deceased, and that she explain why she did this. [ 53 ] In my view, the contextual analysis that I am required to do in assessing voluntariness involves a more comprehensive review of all of the facts than merely ensuring that WPS members follow a simple checklist that provides for an adequate number of phone calls to lawyers, offers of food or drink and washroom breaks.

It is clear from the evidence that the WPS officers knew that Ms. Whiteway was an Indigenous woman who was experiencing homelessness and that she depended on the Mission and similar organizations for support. As stated in the Bohemier decision, WPS members must be alive to the “ mental status ” of suspects and any “ lack of sophistication ” that is apparent (at para. 46). [ 54 ] The WPS officers knew that Ms. Whiteway described herself as someone with several mental health problems, including schizophrenia and bipolar disorder and as a person who used methamphetamine.

There can be no doubt that she was a vulnerable person. Given all of their knowledge about Ms. Whiteway and their duty to be sensitive to any limitations her mental state may have brought about, I am surprised the WPS officers displayed such a profound lack of curiosity about the disclosure Ms. Whiteway made about her mental health and methamphetamine use. Absolutely no effort was made by any member of the WPS to inquire about any medication Ms. Whiteway might be on, symptoms she may have had or treatments she might be receiving.

In his evidence Detective Dawson dismissed her comments as a tactic to deflect his questions, notwithstanding the increasingly bizarre behaviour displayed by Ms. Whiteway. [ 55 ] There were some red flags in the behaviour displayed by Ms. Whiteway in my view, in particular her explicit and repeated comments about suicide and self-harm accompanied by her displays of hair pulling and loud humming, that should have given the detectives second thoughts about proceeding without further inquiries about her mental health or at least the need for a brief pause in the proceedings. I am satisfied that this was not just

an act by Ms. Whiteway to deflect and distract the detectives. [ 56 ] I am alive to the fact that police interviews are not social calls and WPS officers routinely interview individuals who have good reason not to be truthful or forthcoming. But Ms. Whiteway was a person who disclosed a history of mental illness and her behaviour during the interview raised red flags. I do not accept the Crown’s argument that the defence was required to tender medical evidence to support the disclosure of Ms. Whiteway as to her mental illness. The onus is on the Crown on this voir dire and the burden does not shift. Ms.

Whiteway was clearly ill-equipped to maintain her emotional equilibrium for an extended period of time as two male detectives continued to press her in the tight confines of the interview room for details about the crime and her alleged involvement in it. The fact that by the end of the interview Ms. Whiteway was making guttural screams and had stripped naked was a clear sign that she had emotionally disintegrated. [ 57 ] The Crown maintains the interview or video spanned only a few hours and cannot be described as lengthy, but this ignores the fact that Ms.

Whiteway spent some ten hours in the interview room by the time the video recording ends. These were oppressive circumstances for someone like Ms. Whiteway in my opinion. [ 58 ] The anxiety displayed by Ms. Whiteway when the length of a possible sentence was discussed and her repeated and strenuous demands for a phone call to her lawyer is a clear sign to me that she was not engaging in an effort to deflect and distract. [ 59 ] The concession by the Crown that the video statement should be edited to exclude the conclusion of the interview is problematic in my view.

The Crown did not concede that this particular part of the interview was not voluntary. However, they were concerned about the jury viewing Ms. Whiteway naked. Even if I should find that the video statement is voluntary, removing a large segment of the interview for consideration by the jury, would remove the full context in which all of her comments were made. In my view, this would impinge the ability of the jury to properly assess what weight, if any, they should attribute to evidence if it has been ruled to be admissible.

[ 60 ] Further, when the video statement is viewed from beginning to end, I am satisfied it shows that Ms. Whiteway no longer meets the operating mind standard.

When I consider the length of time she has spent in the interview room combined with her bizarre comments throughout the interview that included suicidal ideation and her repeated demands for counsel, I am persuaded that her concluding actions of screaming while disrobing are not the actions of a person with an operating mind. [ 61 ] The burden on the Crown is to prove the voluntariness of the video statement to the criminal standard of proof beyond a reasonable doubt. Given what the WPS knew about Ms.

Whiteway’s mental health, drug use and other vulnerabilities when combined with her disturbing comments and behaviour over a long period of time, I have a reasonable doubt that the video statement was voluntary. [ 62 ] Given my findings, the entire video statement must therefore be excluded from evidence. Expert Evidence [ 63 ] The Crown seeks to call an expert to provide opinion evidence as to the meaning of the term “skinner”. As it is not clear who Ms. Whiteway was referring to when using this term, the evidence is not relevant and not admissible.

Further, the Crown conceded that the term can have different meanings. Offering an expert opinion as to one possible meaning of the term “skinner” is unnecessary in the circumstances. Conclusion [ 64 ] In

summary my conclusions are as follows: 1. The verbal comments made by Ms. Whiteway about “skinners” in the parking lot at the Mission after her arrest are not admissible at trial; 2. The statement of Ms. Whiteway recorded on video is also not admissible; and 3. The Crown’s motion to adduce expert evidence is dismissed. J.