HIS MAJESTY THE KING, – v. –, 2023 NBKB 166

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON His Majesty the King v. Sean Patrick Patterson and Henry Alexander Joseph Pottie 2023 NBKB 166 MCR/15/2021 BETWEEN: HIS MAJESTY THE KING, – and – SEAN PATRICK PATTERSON and HENRY ALEXANDER JOSEPH POTTIE DECISION Voir Dire # 1 – Voluntariness of Mr. Patterson’s Statements to Police BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATES OF HEARING: February 6 to 14, 2023 DATE OF DECISION: April 5 th , 2023 APPEARANCES: Maurice Blanchard & Guillaume Rigucci, for the Crown Jason Dempsey & Daniel Gallant, for Mr. Patterson

Vincent Dubuc, for Mr. Pottie DYSART, J. INTRODUCTION [1] Sean Patrick Patterson and Henry Alexander Joseph Pottie are charged with first degree murder in the death of James FrankLeard on or about May 25th, 2021 in Upper Cape, New Brunswick. [2] Their trial by judge and jury is scheduled to commence on April 17, 2023 in Moncton. [3] The Crown filed an application for the determination of whether certain statements given by Mr.

Patterson were voluntary, inaccordance with the confessions rule. [4] The Court rendered its decision on February 17, 2023 – that the statements were, in fact, voluntary – with reasons to follow. These are those reasons. [5] Mr. Patterson gave a total of five separate statements to police in connection with this matter: 1. A telephone statement to Cst. Mathieu Daigle on May 28, 2021 in connection with a missing person investigation looking into theapparent disappearance of James “Jamie” Leard; 2. An oral and written statement to Cst.

Daigle on May 29, 2021, again in connection with the missing person investigation; 3. An oral and written statement to Cst. Daigle in May 30, 2021, still in connection with the missing person investigation; 4. A warned caution statement given to Cst. Andy Paynter following his arrest for Mr. Leard’s murder on June 5, 2021 (and extendinginto June 6, 2021); and 5. A re-enactment of the alleged murder given to Cst. Payner and Cpl.

Robert Chiasson on June 23, 2021. [6] The Court will address each of these statements separately, but prior to looking at the circumstances of each statement, it ishelpful to consider the law relating to the confessions rule. THE LAW [7] As stated by the authors in The Law of Evidence in Canada, 5th Ed. (Sopinka, Lederman & Bryant), at pages 480-481: “Statements made against one’s interest are normally admitted because of their inherent reliability and trustworthiness. However, wherea confession is made by an accused to a person in authority, concerns about the reliability or trustworthiness may arise.

For that reason,the trial judge has the authority to exclude a confession where there is reasonable doubt as to its voluntariness.” [8] According to Justice Watt in his text, Watt’s Manual of Criminal Evidence, 2020 Edition, at page 686: “The confessions rule applies equally to inculpatory and exculpatory statements, as well as those allegedly volunteered to persons inauthority.” [9] The general principle – the so-called “confessions rule” – was refined by the Supreme Court in the decision of R. v. Oickle,2000 SCC 38 , where Justice Iacobucci laid out the modern approach to determining voluntariness.

Underlying that modernapproach, Justice Iacobucci wrote, are two competing but equally important interests: 33 In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without undulylimiting society’s need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v. Precourt (1976), (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721: Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind

that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation. . . . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible. . . .

All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives. [ 10 ] At paragraph 47, Justice Iacobucci reminded courts that they must examine the entire context of the case, as no hard-and-fast rule will suffice. Also, the accused’s characteristics should be taken into account: R. v.

Wabason , 2018 ONCA 187 . [ 11 ] While the Court must consider the entirety of the context in order to determine whether the statement given by the accused is indeed voluntary and not the product of improper inducements or threats, the Supreme Court identified a non-exhaustive list of four specific, useful factors which the Court should consider. These are: i. The absence of a quid pro quo “inducement” in the nature of threats or promises; ii. The absence of “oppression”; iii. The presence of an “operating mind”; and iv. The absence of “police trickery” that would shock the conscience of the community.

THE ABSENCE OF QUID PRO QUO [ 12 ] With respect to this first factor, the Supreme Court had this to say in Oickle , supra, at paragraph 57 : 57 In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App.

R. 207 (C.A.) , at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. [ 13 ] In Watt’s Manual of Criminal Evidence , supra, the author states: “Moral or spiritual inducements will generally not produce an involuntary confession because the inducement offered is not within the control of persons in authority.” [ 14 ] That includes, generally, appeals to the accused’s conscience or sense of wrong and right. OPPRESSION [ 15 ] Justice Iacobucci had this to say respecting this second factor:

Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be nosurprise that the suspect would make a stress-compliant confession to escape those conditions.

Alternately, oppressive circumstancescould overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusationsmade by the police, and gives an induced confession. [Oickle, supra, para. 57] [16] As stated by Sopinka et al., supra at page 499: Canadian courts may exclude statements where the conduct of the police officers or the circumstances of the detention raise doubts as towhether the accused was able to make an effective choice to speak to authorities or remain silent.

The circumstances which can beconsidered oppressive are manifold and can arise in unique situations. The Court in Oickle illustrated factors that may create anatmosphere of oppression: depriving the suspect of food, clothing, sleep or medical attention, denying an accused access to counsel andquestioning a suspect for a prolonged period in an excessively aggressive and intimidating manner. [17] The Court is concerned that police tactics have overcome the accused’s will to remain silent.

THE PRESENCE OF AN OPERATING MIND [18] On the issue of an operating mind, Justice Iocobucci cited with approval the Supreme Court’s earlier decision in R. v. Whittle, (SCC), where Justice Sopinka, writing for the Court, established the test for determining whether the accused had thenecessary “operating mind.” 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. [19] The operating mind analysis can be impacted by the use of drugs or alcohol. The Courts have considered the impact ofimpairment on the voluntariness of a statement given to police on numerous occasions. One such decision is R. v Pelletier, 2015 NBQB23 , a decision by Justice Lavigne prior to her elevation to the Court of Appeal. The Crown cites that decision in the presentApplication. In that case, the accused was charged with sexual offences.

She argued that her statement to police was not voluntary,because she was intoxicated at the time and had no memory of it. [20] Justice Lavigne restated the test for an operating mind set out by the Supreme Court of Canada in Oickle, supra, and concludedthat the statement was voluntary, notwithstanding the accused’s assertion that she was intoxicated at the time, writing: [55] Being aware of the consequences in this context simply means being able to understand that her statement could be used asevidence in any proceedings against her. There is no evidence that Ms.

Pelletier did not understand the usual warning that was given bythe police to the effect that anything she said could be used against her. This warning was designed to ensure the knowledge of theconsequences of the statement, that is to say, its possible use in proceedings against the accused. Constable Spacek testified that Ms.Pelletier seemed to understand the warning. In fact, as is the custom, she was specifically asked whether she understood the warning, andshe answered yes. I accept this evidence. […] [67] Even if Ms.

Pelletier had consumed alcohol as she alleges, this did not prevent her from having an operating mind. Theevidence has satisfied me beyond a reasonable doubt that on July 13, 2013, the accused had an operating mind before, during and aftergiving the statement, in the sense that she had the requisite cognitive ability to know what she was saying and to understand that she maybe speaking to her detriment. She knew that her friend had already been charged in this matter, and she anticipated the visit of the policeofficers.

She wanted to give her version of the facts, and that is what she did. [21] Finally, as stated by Sopinka et al. in The Law of Evidence in Canada, supra, at page 508: “In order for intoxication to renderthe statement involuntary, the accused’s intellectual ability must be very significantly diminished.” POLICE TRICKERY

[ 22 ] The final factor to be considered is police trickery, i.e. whether the trickery used was of a nature that it would shock the community. This is a separate and distinct inquiry from the others and does not depend upon a breach of the accused’s rights.

The objective is to maintain the integrity of the criminal justice system and to ensure that police do not engage in conduct which would “shock the community” ( Oickle , supra). [ 23 ] In Oikcle , the Supreme Court identified some examples of police trickery that were deemed so inappropriate as to render the statement involuntary: • A police officer posing as a chaplain in order to elicit a confession; • A police officer posing as a lawyer; • Injecting an accused with truth serum under the pretence of giving him insulin to treat his diabetes. [ 24 ] As stated by Sopinka et al., supra, at page 510: “The high threshold required for exclusion is reflective of the [Supreme Court’s] general unwillingness to impede time-tested police investigation tactics where an accused is not deprived of his or her right to silence and correlative choice whether to speak.” [ 25 ] The Court will now consider the circumstances of each of the five statements given to police by Mr.

Patterson. Statement #1 — Telephone Statement given to Cst . Mathieu Daigle on May 28, 2021 [ 26 ] The Court heard from Cst. Mathieu Daigle, who testified that he has been an RCMP officer since 2006. In 2021, he was working from the Sackville detachment. [ 27 ] Cst. Daigle testified that on May 28, 2021, he received a report of a missing person - Jamie Leard. Mr. Leard was reported missing by his mother. The accused, Mr. Patterson, was known to be Mr. Leard’s roommate at the time, and so he obtained Mr. Patterson’s phone number from another police file. [ 28 ] Cst. Daigle testified that he called Mr.

Patterson as part of the missing person investigation. He was not a suspect. He identified himself to Mr. Patterson as “Cst. Daigle with the Sackville RCMP,” and asked Mr. Patterson a number of questions relating to the missing person investigation. [ 29 ] According to Cst. Daigle, there were no signs of impairment or intoxication on the part of Mr. Patterson. The call was not recorded, though Cst. Daigle took notes. He asked questions relating to the last time Mr. Patterson had seen Mr. Leard, the last time he had seen Mr. Leard’s car, and he asked about how Mr.

Leard had been behaving in the days prior to his disappearance. He also asked for a description of Jamie Leard’s clothing when he was last seen. Analysis [ 30 ] In my view, this was a voluntary statement given to police. Mr. Patterson was not a suspect. There were no promises or threats made by Cst. Daigle. Further, there is no evidence of any oppressive behaviour nor any evidence to suggest that Mr. Patterson did not have an operating mind. Based on the evidence of Cst. Daigle, it would appear that Mr. Patterson gave sensible answers to the questions, suggesting he understood the questions.

He had an operating mind. There is no evidence of any police trickery. [ 31 ] I am satisfied beyond a reasonable doubt that Statement #1, given to Cst. Daigle on May 28, 2021 over the telephone, was indeed voluntary.

Statement #2 – Written Statement given to Cst. Daigle on May 29, 2021 [ 32 ] Cst. Daigle testified that the following day, May 29, 2021, he sought to obtain a sample of Mr. Leard's DNA for the purposes of the missing person investigation. He testified that he attended at the address at 269 Upper Cape Rd., in Upper Cape, New Brunswick. That is the address where Mr. Laird and Mr. Patterson were living. When he arrived, there was no one at home. [ 33 ] He attempted to reach Mr. Patterson but was not successful. He then contacted Angel Sears, Mr. Patterson’s girlfriend, and she advised Cst. Daigle that Mr.

Patterson was at a friend's house. He therefore called that friend and left a message for Mr. Patterson to call him. [ 34 ] Cst. Daigle testified that later that day, he received a call for Mr. Patterson. Mr. Patterson advised that he was at the Aulac Big Stop gas station and restaurant and had no means of transportation to get home to Upper Cape. As a result, Cst. Daigle testified that he contacted a colleague, Sgt. Daniel Melanson, who was not far away from Aulac. He asked Sgt. Melanson to pick up Mr. Patterson and bring him to Upper Cape. He testified that Mr. Patterson arrived sometime later with Sgt.

Melanson. [ 35 ] Cst. Daigle testified that he was wearing his standard RCMP uniform, and he was carrying his belt and tools (pistol, handcuffs, etc). He was driving a marked RCMP car. [ 36 ] Cst. Daigle testified that Mr. Patterson allowed him to enter the home in order to find a toothbrush or something with Mr. Leard's DNA. Mr. Patterson also allowed him to look around inside, including inside Jamie Leard’s bedroom. He then asked Mr. Patterson for a written, signed statement, which Mr. Patterson agreed to. He testified that he (Cst. Daigle) wrote down his questions and Mr. Patterson’s answers.

They then reviewed the statement together and both Cst. Daigle and Mr. Patterson initialed each page and signed the last page of the statement. He testified that he recalled writing it inside the residence, as they had to clean off a coffee table to find a space to write on. [ 37 ] Cst. Daigle testified that the purpose of the statement was for the missing person investigation, and to get as accurate information as possible. He testified that he did not make any threats or promises to Mr. Patterson, and that Mr. Patterson was not a suspect in Mr. Leard's disappearance. He gave no inducements for the statement.

He did not draw his weapon or any of his tools. [ 38 ] The Court also heard from Sgt. Daniel Melanson, who testified that on May 29, 2021, he was working at the New Brunswick- Nova Scotia border with respect to COVID-19 restrictions. He received a call from Cst. Daigle, who he knew was investigating a missing person. Cst. Daigle asked Sgt. Melanson if he could drive Sean Patterson from the Aulac Big Stop to the residence in Upper Cape. [ 39 ] Sgt. Melanson testified that he made his way to the Aulac Big Stop and noted a man sitting on the sidewalk with a backpack. He called Mr. Patterson’s name, and Mr.

Patterson identified himself. He testified that Mr. Patterson sat in the back of the police vehicle, and they drove to Upper Cape Road, which was about a 30-minute drive. He testified that he had never seen Mr. Patterson before that date. He was driving a marked police car, and was wearing his standard RCMP uniform. [ 40 ] Sgt. Melanson testified that the conversation between himself and Mr. Patterson during the drive to Upper Cape was, from memory, very general. He recalled that Mr. Patterson had expressed concern for his missing friend. Sgt.

Melanson testified that he did not make any threats or any promises to Mr. Patterson, nor did he make use of any weapon or tool that he had in his possession. [ 41 ] After delivering Mr. Patterson to the residence on Upper Cape Road, Sgt. Melanson remained at the residence for a period of time, and then spoke with Cst. Daigle afterwards, to get an update on the investigation. He did play any role in obtaining the statement from Mr. Patterson. Analysis [ 42 ] based on the testimony of Cst. Daigle and Sgt. Melanson, I am satisfied that there was no quid pro quo involved with respect to Statement #2.

There were no threats or promises made to Mr. Patterson. Likewise, there was no oppressive conduct by police.

[ 43 ] The Court acknowledges that Mr. Patterson was driven from Aulac to Upper Cape in the back of a police vehicle, which could give rise to an apprehension on the part of Mr. Patterson that he was detained by police. But the statement he gave to Cst. Daigle was given once he arrived at his residence in Upper Cape, and not when he was in the police vehicle or even in the presence of Sgt. Melanson. He had agreed to meet with Cst. Daigle before his transportation was arranged. He was not a suspect at the time and there is no reason to believe that Mr. Patterson felt obliged to speak with police.

By all accounts, he was expressing concern for his missing friend and wanted to assist the investigation – at least that is what was expressed to Sgt Melanson and Cst. Daigle. [ 44 ] In my view, Statement #2 given to Cst. Daigle on May 29, 2021 was voluntary in nature. Statement #3 – Written Statement Given to Cst. Daigle on May 30, 2021 [ 45 ] With respect to this third statement from Mr. Patterson, Cst. Daigle testified that earlier in the day on May 30, 2021, he had spoken to Mr. Leard's mother and to Mr.

Leard’s cousin and learned that Jamie Leard owned firearms which were believed to be at the residence on Upper Cape Road. He had learned that Mr. Leard had apparently turned over those firearms to his uncle for safekeeping but had recently retrieved them. Apparently, Mr. Leard was concerned because somebody he considered dangerous had recently returned to the area. [ 46 ] As a result, Cst. Daigle attended again at 269 Upper Cape Road. He testified that he had previously contacted Mr. Patterson to notify him that he was coming, and Mr. Patterson met him on arrival.

He testified that he attended with another officer, Cst. Francis Demers, as he was expecting that he might have to seize firearms. He testified they were wearing their RCMP uniforms, and both were driving fully marked police cars. [ 47 ] Cst. Daigle testified that the purpose of his visit was to take those firearms into custody, because he was aware that Mr. Patterson, the only other resident at 269 Upper Cape Road, did not have a permit for firearms. [ 48 ] While Cst. Daigle made a search of the residence, looking for the firearms, he noted a mount for a video camera, and learned from Mr.

Patterson that there was a video camera facing the front of the residence, which showed people coming and going. Cst. Daigle testified that he felt that that was relevant for the purposes of the missing person investigation, as it might confirm precisely when Mr. Leard last left the residence, what he was wearing, etc. He therefore requested another voluntary written and signed statement from Mr. Patterson. [ 49 ] With respect to that statement, he could not recall whether it was written inside the residence or in his vehicle.

Again, he testified that he wrote down his questions and the answers which were given by Mr. Patterson. Once again, he reviewed those questions and answers with Mr. Patterson, and each of them put their initials on each page and signed the last page. [ 50 ] Cst. Daigle testified that he made no promises nor any threats to Mr. Patterson in order to obtain the statement. He confirmed that at that time, Mr. Patterson was not a suspect with respect to Mr. Leard's disappearance. That came later. [ 51 ] On cross-examination, Cst.

Daigle testified that he intended to seize the firearms in accordance with the Criminal Code , as the owner of the firearms was missing and the other resident at that address did not have a permit for them. He also acknowledged that he had spoken with Mr. Leard's mother and with a Mr. Wall, both of whom had expressed distrust of Mr. Patterson and Mr. Pottie, and he admitted that Mr. Leard's mother felt that Sean Patterson had been a bad influence on Mr. Leard. She felt he was not being truthful, according to Cst. Daigle. [ 52 ] Also on cross-examination, Cst.

Daigle confirmed that he did not obtain written statements from all of the individuals he had spoken to in relation to the missing person investigation. He only obtained written statements from Mr. Patterson and from Mr. Leard's mother, but he agreed that he had spoken with at least three other individuals from whom no written statement was obtained. He testified that during a rapidly evolving investigation, sometimes there is insufficient time to get a written statement from every witness. He felt it was important to get written statements from the two persons who were closest to Mr.

Leard, being his mother and his roommate. Also, while he had spoken to other individuals over the telephone, he had personally met with both Mr. Leard's mother and Mr. Patterson. [ 53 ] Cst. Daigle testified that it is his practice, when obtaining a voluntary statement from a witness who is not a suspect, to tell the individual that it is voluntary.

Analysis [ 54 ] Once again, there is no evidence of any quid pro quo with respect to this statement from Mr. Patterson. There were no promises and no threats made to him by Cst. Daigle. [ 55 ] Likewise, there is no evidence of any oppressive conduct by police. They were seeking information about a missing person, and Mr. Patterson was not then a suspect in Mr. Leard's disappearance. The purpose of the statement was to gather information about Mr. Leard's disappearance, and the Court is satisfied that the statement was voluntary. Statement # 4 – the Warned Caution Statement of June 5-6, 2021 [ 56 ] Mr.

Patterson was arrested shortly before noon on June 5, 2021 at a residence on the Upper Aboujagane Road near Sackville, New Brunswick. [ 57 ] The Court heard from two police officers involved in his arrest – Cst. William Hachey and Cst. Carl Champagne. The Court also heard from Cst. Andy Paynter, the officer who conducted the interview of Mr. Patterson after he had spoken to a lawyer. [ 58 ] The Court will address those two stages separately – the arrest/Charter stage involving Cst. Hachey and Cst. Champagne first, and then the interview stage involving Cst. Paynter. ARREST/CHARTER STAGE Cst.

William Hachey [ 59 ] Cst. Hachey testified that on June 5, 2021, he was tasked with assisting the Major Crimes Unit (MCU) by transporting Mr. Patterson following his arrest, bringing him to the RCMP detachment in Shediac, New Brunswick. He testified that he attended a morning briefing and was instructed as to his role. [ 60 ] Cst. Hachey testified that he was instructed to proceed with Cst.

Carl Champagne to a church located on the Upper Aboujagane Road, near Sackville, New Brunswick, and to wait until they received instructions to proceed to the residence where the arrest would take place. [ 61 ] He testified that when they arrived at that residence, located on the same road, Mr. Patterson had already been arrested and had already been placed in handcuffs, to the best of his recollection. Mr. Patterson was transferred to his custody, and he personally brought Mr. Patterson to his police vehicle and placed Mr. Patterson in the rear seat. [ 62 ] Cst. Hachey testified that Cst.

Champagne then entered the vehicle in order to read Mr. Patterson his rights from a script which had been prepared by the MCU, and which was circulated to officers at the morning briefing. He testified that he was not in the vehicle at the time, and he did not hear Cst. Champagne read Mr. Patterson his rights, but he observed him through the window and saw that he had the script in his hands. [ 63 ] Cst. Hachey testified that they left the residence at 11:58 AM. He was driving, while Cst. Champagne was in the front seat. Mr. Patterson remained in the rear seat.

They arrived at the Shediac detachment at 12:32PM, and he then removed Mr. Patterson from the vehicle and transferred him to a member of the MCU, he believes. [ 64 ] Cst. Hachey did not have any conversations with Mr. Patterson, other than to confirm that he was under arrest and to conduct a quick search of his person before placing him in the police vehicle. He testified that everything that occurred with Mr. Patterson was audio recorded, and he recalls observing an audio recorder in Cst. Champagne’s hand at all times. [ 65 ] On cross-examination, Cst. Hachey confirmed that Mr.

Patterson had some visible injuries at the time of his arrest. Cst. Hachey had been aware of a previous hit-and-run incident, and he knew that Mr. Patterson had been hospitalized as a result of that accident. He testified that he was the officer who responded to that call on the Upper Cape Road in Upper Cape, New Brunswick.

Constable Carl Champagne [ 66 ] Cst. Champagne testified that he's currently with the Provincial Crime Prevention unit in Richibucto, New Brunswick. In 2021, at the time of Mr. Patterson’s arrest, he was with the Crime Prevention unit at the Shediac detachment. [ 67 ] Cst. Champagne testified that on June 5, 2021, he was tasked with assisting the MCU with the arrest of Sean Patterson. He testified that he attended a morning briefing, and he understood that Mr. Patterson and other individuals were at a residence on the Upper Aboujagane Road, near Sackville.

He testified that they made their way to that residence once they received a call from the MCU. [ 68 ] Upon arrival, Cst. Champagne testified that he assisted in the arrest of Mr. Pottie, who was in a trailer at the back of the home. Mr. Pottie was then turned over to another officer. Mr. Patterson, who had already been arrested, was turned over to Cst. Hachey. Cst. Champagne did not witness Mr. Patterson’s arrest. He testified that Cst. Hachey searched Mr. Patterson and then placed him in the rear of their police vehicle. [ 69 ] Cst.

Champagne testified that he then got into the front passenger seat of the police vehicle and spoke with Mr. Patterson. He testified that he advised Mr. Patterson that he was being arrested for the homicide of Jamie Leard. [ 70 ] Cst. Champagne’s interactions with Mr. Patterson from shortly before noon on June 5, 2021 until he was turned over to Cst. Andy Paynter – who would conduct the interview of Mr. Patterson – at 3:21PM that same day, were recorded on an audio recorder.

The Court admitted into evidence that audio recording, which was played in the courtroom. [ 71 ] In separate reasons, the Court has already ruled that Mr. Patterson’s rights under s. 10(

b) of the Charter (his right to retain and instruct legal counsel before being questioned by police) were respected in this case. But it should be stated, nonetheless, that the Court is satisfied that Cst. Champagne advised Mr. Patterson more than once of his right to remain silent and that he had no hope of advantage or fear of any prejudice should he refuse to speak to police. [ 72 ] The following excerpts from the recording confirm that Mr. Patterson was advised of his right to retain and instruct counsel, of his right to remain silent, and that he was given the standard police caution by Cst.

Champagne: CHAMPAGNE: Okay. … And I'll repeat, Sean PATTERSON, I'm arresting you for the murder of Jamie LEARD, on, or about, of, uh, May 25th, 2021, at, or near, Upper Cape, in the county of Westmorland, in province of New Brunswick, contrary to

Section 235 of the, uh, Criminal Code of Canada . 'Kay sir, before you say anything, it is my duty to inform you that you have the right to retain, and instruct, legal counsel without delay. Do you understand? … Yes, or no sir? PATTERSON: Yes. CHAMPAGNE: Just speak louder please. PATTERSON: I'm sorry, I’m a little sore. CHAMPAGNE: Okay. PATTERSON: But, yes I understand. […] CHAMPAGNE: `Kay, like I said sir, you'll have the choice to call Legal Aid, or you have the choice to speak to a lawyer of your choice.

What I'll do, I'll provide you a list, of lawyer-, of lawyer in the -- on the phone book? And you can pick one, or we can call duty counsel for free advice. Okay? You understand that? 'Kay. You need not say anything, you have nothing to hope from any promise, or favor, and nothing to fear from any threat, whether or not you say anything. Anything you say may be given in evidence. Do you understand? PATTERSON: [inaudible] CHAMPAGNE: Sorry? PATTERSON: Yeah. CHAMPAGNE: You understand that one? You have the right to remain silence? `Kay. Do you want to speak with a lawyer right now?

Or you want to wait to be at the office? PATTERSON: I can wait till the office. [ 73 ] The balance of Mr. Patterson’s interactions with Cst. Champagne relate to the implementation of his right to counsel. [ 74 ] Mr. Patterson asked on more than one occasion to go outside for a cigarette, which request was refused. Cst. Champagne advised that he wanted to first arrange for Mr. Patterson to speak to counsel. [ 75 ] Cst. Champagne also asked when Mr. Patterson had last eaten – and he said it had been the previous night at around 10:00PM. He told Mr.

Patterson that they could arrange to get him some food, but that was not done until after Cst. Champagne’s involvement had ended. Analysis [ 76 ] Having listened to the recording of Mr. Patterson’s interactions with Cst. Hachey and Cst. Champagne, there is no evidence of any promises, threats or oppression with respect to the Arrest/Charter stage. In fact, Cst. Paynter later asked Mr. Patterson about that, and this was the exchange: PAYNTER: Okay, Did anything happen from the drive from Sackville to Shediac? PATTERSON: No, it was a quiet drive.

PAYNTER: Did anybody at any point in time, Sean, make any promises or threaten you in any way shape or form? PATTERSON: No. There was no words exchanged. [ 77 ] Yes, Mr. Patterson wanted a cigarette and yes, he was said he was hungry. But, as will be seen later in these reasons, both those issues were addressed by Cst. Paynter before the questioning was commenced in earnest. There was no evidence of oppression. There was no evidence of police trickery. THE INTERVIEW [ 78 ] As mentioned, the interview of Mr. Patterson was conducted by Cst. Paynter.

[ 79 ] Cst. Paynter testified that he was asked by the MCU to interview Mr. Patterson. He testified that he attended the detachment in Sackville on the morning of June 5, 2021 and spoke with the investigation team about the case. He then travelled to the Shediac detachment, to await Mr. Patterson’s arrival. He first met Mr. Patterson in the interview room at the Shediac detachment just before 3:30PM on June 5, 2021. [ 80 ] Cst. Paynter testified that he was wearing plain clothes during the interview, and he did not have any weapon or any tools with him in the interview room.

He confirmed that the entire interview was audio and video recorded, and those recordings were entered as Exhibits, and they were played in the courtroom. [ 81 ] In total, including cigarette and bathroom breaks and periods when Cst. Paynter left the interview room for extended periods, the interview lasted a total of approximately 10 hours, from around 3:30PM on June 5 to 1:30AM on June 6, 2021. [ 82 ] Immediately upon entering the interview room, Cst. Paynter identified himself to Mr. Patterson as a police officer.

He explained that his role was to listen and to get to the truth. [ 83 ] Early in the interview, Cst. Paynter asked about whether Mr. Patterson’s rights had been explained to him. Mr. Patterson confirmed that they had been explained by Cst. Champagne, who read them from a piece of paper. Because Mr. Patterson seemed not to recall them precisely, Cst. Paynter explained them again. [ 84 ] Cst. Paynter specifically notified Mr. Patterson that he had the right to remain silent, but that anything he did say could be used against him. He also notified Mr.

Patterson that he would not make him any promises or any threats, and that Mr. Patterson need not say anything. Cst. Paynter specifically indicated that if he gets Mr. Patterson something to eat or drink, or if he gives him a cigarette, for example, that there was no expectation of anything in return. PAYNTER: Okay. All right. And, and well just to kind of cover over that I’m gonna, gonna kinda say it here from memory okay, but, you need not say anything.

You have nothing to hope from any promise or favor and nothing to fear from any threat whether or not you do say anything, but anything you do or say may be given as evidence. That means that anything you tell me Sean, I’m gonna tell the Judge okay? PATTERSON: Hmm. PAYNTER: That’s and that’s how it works, okay?

PATTERSON: Yup. […] PAYNTER: And, and if, if you want, I want you to understand straight up that if, if you’re hungry and I’m bringing you food that if you want a coffee and I’m bringing you a coffee, that if you want a cigarette and I’m able to bring you a cigarette, just because I’m doing those things, I don’t want you to feel obliged that you have to do anything for me in return, okay? Like uh, you know I, I’m gonna have to talk to this guy he’s, he’s doing this for me, there’s no contract here there’s no deals being made. Okay? PATTERSON: Yeah.

PAYNTER: Um, whatever, what, for food, for drink, a cigarette if you need cigarettes those are things that we all require day to day life, okay, and, and I’m certainly not here to deprive you of, of any of that stuff, okay? And that goes along the lines of, of questions too, if you have anything that you wanna ask me, you know, ask me, I’m not gonna bullshit you, okay, and, and the last thing I’m gonna do is lie to you. I’d sooner disappoint you and upset you than have to lie to you, okay?

PATTERSON: Yeah. [ 85 ] He then inquired about whether Mr. Patterson needed anything in terms of medical treatment. Mr. Patterson indicated that he would like something for the pain he had, and so Cst. Paynter obtained some Tylenol for him. That was within the first 30 minutes or so of the interview. Approximately 2 ½ hours later, in the late afternoon, Mr. Patterson expressed that the Tylenol was not working, and Cst. Paynter got him some Advil. [ 86 ] He also asked about whether Mr. Patterson was hungry or thirsty. Arrangements were made for Mr.

Patterson to have a coffee and then later some take-out food from McDonald’s. [ 87 ] In total, the accused was given at least two cups of coffee, and he was offered water and bathroom breaks on several occasions. [ 88 ] On at least three occasions over the course of the interview, they took a cigarette break so Mr. Patterson go outside and smoke. [ 89 ] There were no threats or promises made by Cst. Paynter over the course of the interview. [ 90 ] Throughout the lengthy interview, it appears to the Court that Mr.

Patterson understood the nature of the charge he was facing and he understood the questions that were being asked. He provided clear, sensible answers, suggesting that he fully appreciated and understood what he was being asked. In fact, at certain times during the interview, he provided quite detailed information, for example when he described certain mechanical work he had performed on the solenoid of a 4-wheeler. He also gave detailed, specific evidence relating to dates, times, places and persons. [ 91 ] Mr. Patterson advised Cst. Paynter that he had been injured in an attack.

He said he had had injuries to his ribs, a lacerated liver, and he also thought he might have broken his nose. He described having numbness in his upper teeth on one side of his face. As mentioned, he asked for some pain relief, and he was given Tylenol and Advil. [ 92 ] At one point during the interview, Mr. Patterson volunteered that “legal aid” had told him not to say anything, but that he was trying to be honest, and that he had nothing to hide. [ 93 ] Cst. Paynter asked Mr. Patterson about any drug use, and Mr. Patterson told him that he had had “a couple of puffs off a pipe” earlier in the day.

Later in his testimony, Cst. Paynter testified that, to the best of his knowledge, it was methamphetamine that Mr. Patterson had smoked. [ 94 ] At approximately 10:00 PM, i.e. over 6 hours into the interview, Mr. Patterson advised Cst. Paynter during a smoke break that he was “almost falling asleep in there”, referring to the interview room. He advised that he had only gotten approximately one hour of sleep the night before. That said, while Mr. Patterson may have been tired, he nonetheless advised Cst. Paynter after midnight that he was all right to keep going with the interview, stating: “I've shed my tears.

I should be able to get through it.” [ 95 ] Approximately 7 ½ hours into the interview, Cst. Paynter played recordings of other interviews of other witnesses involved in the case, and reported to Mr. Patterson what the co-accused, Mr. Pottie, was apparently telling police. There is no indication that Cst. Paynter misrepresented that information to Mr. Patterson. [ 96 ] Mr. Patterson advised Cst. Paynter that he had quit school in grade 10. [ 97 ] Cst. Paynter testified that he did not make any promises or any threats to Mr. Patterson, and none were observed during the recordings.

[ 98 ] On cross-examination, Cst. Paynter testified that he saw no signs of intoxication during his interactions with Mr. Patterson, notwithstanding that there was evidence that he had used methamphetamine earlier that day. He confirmed that he had observed certain injuries, including a black eye, and he acknowledged that Mister Patterson had told him that he had injured ribs, and injured liver, and possibly a fractured nose. He also agreed that the interview spanned approximately 10 hours, from 3:30 PM until 1:30 AM on June 6, 2021.

ANALYSIS Quid Pro Quo [ 99 ] There is no evidence of any promises or threats being made by police on June 5-6, 2021. If anything, it was repeatedly made clear – each time Mr. Patterson was given a smoke break, a glass of water, a Tylenol or something to eat – that nothing was expected in return. Oppression [ 100 ] There is no evidence of oppression in this case. [ 101 ] The mere fact that Mr. Patterson was questioned over a lengthy period of time is not suggestive of oppression.

He was given a number of breaks, he was allowed to go outside for a cigarette, he was fed, he was given water and coffee, and he was allowed to go to the bathroom. [ 102 ] Cst. Paynter’s questioning was not overly aggressive or in any way improper. [ 103 ] There was nothing about the interview which could suggest that police conduct was such as to overpower Mr. Patterson’s will and his ability to refrain from speaking to police. [ 104 ] There was no oppression in this case. Operating Mind [ 105 ] Counsel for Mr. Patterson argues that Mr.

Patterson did not have an operating mind on June 5-6, 2021 for several reasons: he has only a Grade 10 education; he had smoked methamphetamine earlier that day; he was in pain from his injuries. [ 106 ] Regarding his injuries, Mr. Patterson at one point said that his head was “scrambled”, and there is no doubt that he reported some symptoms and asked for a pain reliever, but he nonetheless seemed to have an accurate recollection of events, people, places and technical information. Certainly, the court observed no indications that Mr.

Patterson was suffering any effects from his previous injuries which would have impacted upon his ability to understand the questions that were being asked or the answers he was giving. [ 107 ] As noted above, the jurisprudence related to an operating mind sets a relatively low bar – “… 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.” [ 108 ] Here, Mr. Patterson volunteered that he knew he should not say anything to police, but he wanted to be honest.

He also clearly understood what was being asked and what he was telling police. [ 109 ] Also, the fact that he had smoked some methamphetamine is immaterial – the issue is whether he was so impaired that his intellectual ability was “very significantly diminished.”

[ 110 ] Taking all the evidence into consideration, including Mr. Patterson’s limited education, the Court is satisfied that Mr. Patterson had an operating mind during his warned caution statement. Police Trickery [ 111 ] There is no evidence of any police trickery. [ 112 ] The Court is therefore satisfied beyond a reasonable doubt that Mr. Patterson’s warned caution statement, given to Cst. Any Paynter on June 5 and 6, 2021 was indeed voluntary. Statement #5 - Re-Enactment Statement given to Cst. Payner and Cpl.

Robert Chiasson on June 23, 2021. [ 113 ] With respect to the reenactment which occurred on June 23, 2022, the Court heard from three witnesses: Cst. Paynter, as well as Sgt. Mitchell Perry and Cst. Robert Chiasson. Cst. Paynter [ 114 ] Cst. Paynter testified that his next involvement with Mr. Patterson, after the warned caution statement, was on June 10, 2020. He testified that the plan was to conduct a reenactment with Mr. Patterson at the residence at 269 Upper Cape Road. [ 115 ] Cst. Paynter testified that in order for Mr.

Patterson to be released from the custody of the Southeast Regional Correctional Centre, in Shediac, where he was being detained, it required a court order. That court order required a signed consent from Mr. Patterson, confirming that he was consenting to the release. It was Cst. Paynter’s understanding that that order had been obtained prior to June 10th. [ 116 ] He testified that on the morning of June 10, 2021, he met with the lead investigator, Cst. Robert Chiasson, and with other members of the investigation team. He prepared a script to read to Mr. Patterson. Then he, a Cst. Allard and Sgt.

Perry drove to Shediac. [ 117 ] He testified that when they arrived at the SERCC, the jail staff brought Mr. Patterson to them, and custody was transferred. He testified that they then brought him to the Shediac detachment, and he was advised of his rights, including his right to remain silent and his right to retain and instruct counsel of his choice, including a lawyer appointed through legal aid at no cost to him. It was also made clear to him that he could withdraw his consent to participate in the reenactment at any time. [ 118 ] Cst. Paynter testified that Mr.

Patterson was afforded an opportunity to speak with a lawyer through Legal Aid on December 10, 2021, which lasted approximately 17 minutes. [ 119 ] After he spoke to counsel however, Mr. Patterson advised that he was feeling unwell, and he asked to cancel the reenactment. As a result, Mr. Patterson was returned to the SERCC later that same day. [ 120 ] Cst. Paynter testified that he did not make any threats or promises, nor did he offer any inducements to Mr. Patterson. [ 121 ] Cst. Paynter testified that a couple of weeks later, on June 23, 2021, they made a second attempt at the reenactment.

He testified that they followed the same general procedure. He once again met for a morning briefing with other members of the investigation team before proceeding to the SERCC. This time, it was Cst. Paynter, Sgt. Perry and Cst. Chiasson. [ 122 ] Prior to June 23rd, Mr. Patterson had once again signed a consent form, authorizing his release to their custody, and this Court had issued the appropriate order.

[ 123 ] Cst. Paynter testified that the entire interaction with Mr. Patterson was recorded, both audio and video. Those recordings were entered as Exhibits at the hearing and were played in court. [ 124 ] On the recordings, Cst. Paynter can be seen to be wearing plain clothes. He testified that he may have had a firearm, but he could not specifically recall. [ 125 ] When Mr. Patterson was brought into their custody in the garage at the SERCC, Cst. Paynter explained the process to Mr. Patterson again. He told him that it was an entirely voluntary process, and that Mr.

Patterson could withdraw his consent to participate in the reenactment at any time, and he would be returned to the jail. Mr. Patterson indicated that his legal counsel, with whom he had spoken on June 10th, had told him that he probably should not do it, but he wanted to anyway. [ 126 ] Cst. Paynter then advised Mr. Patterson as to his rights, including his right to speak to a lawyer again on June 23rd. Mr.

Patterson responded: “Well, I've already contacted one … I've already contacted one and he's told me what I should and shouldn't do. […] I think I'm all right. […] I don't need to speak to a lawyer.” [ 127 ] Cst. Paynter then advised Mr. Patterson that if he changed his mind, he could speak to a lawyer at any time during the reenactment. [ 128 ] Mr. Patterson expressed some concern that the video could be manipulated or edited, and that it could be used against him. Cst. Paynter assured him that the video would not be altered in any way, but that it would “definitely be used against you.” Mr.

Patterson indicated that he still wanted to conduct the reenactment, as he wanted to clear his name. He indicated that his head “wasn't in the right place” when he gave his first statement to police, presumably the warned caution statement. [ 129 ] Once again, Cst. Paynter advised Mr. Patterson that the reenactment was being conducted without a warrant. He was told that it was only with his consent that the reenactment was taking place, and he could withdraw that consent at any time.

He was told that when they arrived at the residence on Upper Cape Road, he did not have to enter the residence or tell police anything if he did not want to. [ 130 ] Cst. Paynter gave Mr. Patterson a cup of coffee and told him that he did not expect anything from Mr. Patterson in return. He asked Mr. Patterson if he was hungry, to which Mr. Patterson replied, no. [ 131 ] Cst. Paynter, Mr. Patterson, Cst. Chiasson and Sgt. Perry then made their way from Shediac to Upper Cape. They drove in a minivan, with Cst. Chiasson driving, Cst. Paynter and Mr. Patterson in the middle seats, and Sgt.

Perry in the rear operating the video and audio. [ 132 ] When they arrived at the residence in Upper Cape, they made their way into the residence, which is in fact a trailer or mobile home. They moved about the residence, and then made their way outdoors and into another building on the property. The entire sequence is recorded. [ 133 ] After touring the area and hearing Mr. Patterson’s version of what had occurred, the officers asked Mr. Patterson whether he would be prepared to attend at the scene where Mr. Leard's body was found. Mr.

Patterson advised that he did not want to do that, and at that point he was returned to the SERCC. [ 134 ] Cst. Paynter testified at the hearing that he was present with Mr. Patterson the entire time on June 23, 2021, and that during that time he did not make any threats or promises, nor did he offer any inducements to Mr. Patterson.

Sgt. Mitchell Perry [ 135 ] Sgt. Perry testified that he is a member of the RCMP Forensic Unit in Moncton. He was involved with the reenactment, both on June 10 and 23, 2021. He testified that his role was to operate the video camera and the audio recording equipment. He testified he was wearing his RCMP uniform. [ 136 ] Sgt. Perry testified that he did not have any direct conversations with Mr. Patterson, other than attaching a microphone to his clothing. He did not make any threats or promises to Mr. Patterson, nor did he offer any inducements. Cst. Robert Chiasson [ 137 ] Cst.

Chiasson testified that he is the lead investigator with respect to Mr. Leard’s alleged murder. He is a member of the Major Crimes Unit. [ 138 ] Cst. Chiasson testified that on June 17, 2021, he attended at the SERCC. There, he met with Mr. Patterson in order to obtain his signed consent, so the police could obtain a court order allowing Mr. Patterson to be released into their custody. He recorded that interaction with Mr. Patterson, and that recording was marked as an exhibit and it was played in Court. Cst. Chiasson identified himself to Mr.

Patterson and explained that he was there to obtain the consent, as they had done the previous occasion. He reminded Mr. Patterson that he would be provided with an opportunity to speak with legal counsel, and Mr. Patterson indicated that he was prepared to consent to the reenactment again. [ 139 ] Cst. Chiasson testified that he was in plain clothes on that day and did not have any weapons with him. He did not threaten or promise anything to Mr. Patterson, nor did he offer any inducements. [ 140 ] Cst. Chiasson testified that on June 23, 2021, he attended for the reenactment.

His role that day was to be the driver, but he did ask Mr. Patterson a number of questions once they arrived in Upper Cape. He was again wearing plain clothes, but on that date, he did have his firearm, though it was never drawn. He testified that he did not make any threats nor any promises, nor did he offer any inducements to Mr. Patterson on June 23, 2021. [ 141 ] On cross-examination, Cst. Chiasson was asked about the consent form Mr. Patterson was asked to sign on June 17, 2021. He was asked whether the consent was a binding agreement, and whether it put Mr. Patterson’s rights “at play.” Cst.

Chiasson testified that the consent form was a requirement for a court order, which allowed Mr. Patterson to be released by the SERCC into the custody of RCMP. He testified that it was not enforceable against Mr. Patterson, as Mr. Patterson could revoke his consent at any time. The entire process was voluntary. In his view, signing the consent was in no way an obligation on Mr. Patterson’s part to follow through, and it was made clear to Mr.

Patterson that he would have another opportunity to speak with legal counsel on the day of the reenactment, if he wanted. [ 142 ] That was the evidence with respect to the reenactment. ANALYSIS Quid Pro Quo [ 143 ] With respect to the voluntariness of the reenactment, the Court is satisfied that there were no threats, promises or inducements made by police. The entire interaction was recorded. Oppression [ 144 ] Further, there was absolutely no evidence of any oppression. There was no aggressive questioning nor any conditions which might have resulted in Mr. Patterson’s will being overcome.

In fact, it is clear that Mr. Patterson wanted to participate in the reenactment because he felt it would “clear his name.” But it was made clear to him that anything he said would be used by police. The reenactment took only a few hours. Mr. Patterson was given a coffee and offered food, which he declined.

Operating Mind [ 145 ] Certainly, based upon the Court's observations on the video of the reenactment, Mr. Patterson had a fully operating mind. He gave a clear account of what occurred, and clearly understood the questions that were being asked. Further, he understood that what he was telling police could be used against him. Police Trickery [ 146 ] Finally, there is absolutely no evidence of any police trickery or inappropriate police conduct. [ 147 ] Ultimately, the court is satisfied beyond a reasonable doubt that Mr.

Patterson’s participation in the reenactment and the information he conveyed to police was entirely voluntary. DISPOSITION [ 148 ] The Court is satisfied beyond a reasonable doubt that all five statements given by Mr. Patterson to persons in authority are voluntary. DATED at Moncton, New Brunswick this 5 th day of April, 2023. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick