R. v. Dempsey, 2015 NUCJ 15

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Dempsey, 2015 NUCJ 15 Date: 20150616 Docket: 08-13-414 Registry: Iqaluit Respondent: Her Majesty the Queen -and- Applicant: David Dempsey ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Respondent): S. May Counsel (Applicant): Z. Horricks Location Heard: Iqaluit, Nunavut Date Heard: January 7, 2015 Matters: Voir Dire; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss 7, 10(a), 10(

b) and 24(2); Fisheries Act, RSC 1985, c F-14 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 3 II. FACTS 3 A. General findings with respect to the audio statement 5 III. ISSUES TO BE DECIDED 6 A. Was this an investigation or an inspection? Did the jeopardy of the applicant change and, if so, was the applicant’s decision to answer questions a free and meaningful choice or was it a violation of his rights under

section 7 of the Charter against self-incrimination? 6 B. Was there a

section 10 breach of the applicant’s rights under the Charter ? 12 C. If there was a breach, should the evidence be excluded under section 24(2) of the Charter ? 20 IV. FINAL CONCLUSION 20 I. INTRODUCTION [ 1 ] An application has been brought on behalf of Captain David Dempsey [the applicant] for an order to exclude his statement made to Department of Fisheries and Oceans [DFO] Officer Sherri Green on October 20, 2012, as evidence at the trial of this matter, pursuant to section 24 (2) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter]. [ 2 ] It is further alleged that the applicant’s Charter rights were violated pursuant to sections 7 , 10(a) , and 10(b) . [ 3 ] A voir dire was held on January 7, 2015. On that date, the Court heard evidence from both the applicant and Officer Green. [ 4 ] At the outset of the voir dire, it was determined that a corporation does not have Charter protections and therefore the application is specific only to the applicant.

Oujukoaq Fisheries Ltd. is therefore not a party to this voir dire. [ 5 ] Both counsel agree that the statement given to Officer Green by the applicant on October 20, 2012, was voluntary. This is not an issue in the voir dire. [ 6 ] It was also agreed by the parties at the outset of the voir dire that identification and jurisdiction are not issues for the purposes of the Charter application. II. FACTS [ 7 ] The following facts are undisputed for the purposes of this voir dire. [ 8 ] On October 19, 2012, Officer Green was working for the DFO in Iqaluit.

At the time in question she was performing the dual role of Fisheries Officer and Acting Field Supervisor. [ 9 ] Her main duty at that time was to ensure compliance with the Fisheries Act, RSC, 1985, c F-14 [Fisheries Act], and the Atlantic Fishery Regulations, 1985, SOR/86-21 [the Regulations].

[ 10 ] Officer Green had been employed with the DFO for approximately five years. [ 11 ] On October 19 and 20, 2012, Officer Green was in a Transport Canada surveillance plane tasked with monitoring fishing fleets along the northern half of the Davis Strait on the east side of Baffin Island. [ 12 ] The plane was outfitted with numerous cameras, infrared, and recording devices in order to monitor the fleet from very high distances without being detected. [ 13 ] On board was Officer Green, Officer Stewart, two pilots, and two technicians. [ 14 ] The role was simply to monitor the commercial fishing fleet in order to ensure that they were complying with the Fisheries Act and the Regulations , and that they were properly licensed. [ 15 ] The area they were monitoring on October 19 and 20, which is the subject matter of this voir dire, included a closed area designed to protect a cold water reef and the wintering grounds of narwhal. [ 16 ] On October 19, 2012, the plane was over the closed area when a set of gear (specifically buoys) were noticed on the surface of the water.

The plane flew over a number of times, but the technician who was operating the camera inside the plane was unable to clearly identify who the buoys belonged to. There was, however, only one other vessel within the area and that vessel was the Sikuvut. [ 17 ] The next day on October 20, 2012, a similar patrol of the same area was conducted. On that day the technician was able to clearly read the name Sikuvut on the buoy and the vessel was very close by. [ 18 ] The buoys were inside the southern limit of the closed area.

This is an area in the Davis Strait where fishing with gill nets is prohibited. [ 19 ] It was at this time that Officer Green decided to make radio contact with the vessel Sikuvut. Once the vessel was contacted, she identified herself and asked to speak to the captain of the vessel. [ 20 ] The conversation between Officer Green and the applicant was recorded and made an exhibit in this voir dire. A.

General findings with respect to the audio statement [ 21 ] From my careful review of the audio recording between Officer Green and the applicant, I make the following general findings. [ 22 ] At the beginning of the conversation both parties were having some difficulty hearing each other. This had nothing to do with the quality of the radio reception. It had to do with the fact that when operating a VHF radio, two people cannot talk at the same time. [ 23 ] VHF radios require the participants to talk one at a time. The operator must not depress the talk button when another person is already talking.

If this happens some of the conversation is lost. [ 24 ] I find that, at the beginning of the taped interview, the applicant and Officer Green were, at times, talking over each other. Therefore, in the beginning some of the dialogue was lost.

[ 25 ] Once both parties became aware of this problem, it was easily corrected and the remainder of the taped interview is clear and easy to understand. [ 26 ] I therefore find the quality of the radio reception to be very good. [ 27 ] There is some indication by the applicant that he was distracted and rushed into answering questions because, at the time when Officer Green called, he was hauling in a buoy line. [ 28 ] I find from my review of the audio statement that the applicant did not appear to be distracted or in a rush to get off the radio.

Once the problem with speaking over each other was corrected, he answered the questions without giving any indication that it was a very inconvenient time for him to do so. III. ISSUES TO BE DECIDED A. Was this an investigation or an inspection? Did the jeopardy of the applicant change and, if so, was the applicant’s decision to answer questions a free and meaningful choice or was it a violation of his rights under

section 7 of the Charter against self-incrimination? (i). Applicant’s argument [ 29 ] Officer Green’s approach to the investigation of this matter is a serious cause for concern. Once the violation was discovered, she had other alternatives available to her besides questioning a person in legal jeopardy over poor quality radio reception. [ 30 ] Officer Green could have simply contacted the applicant, notified him of the violation, and asked that the gear be removed.

Instead, she chose to pursue an investigation wherein the suspect was not advised that an investigation was even taking place and that he would be afforded an opportunity to get off the radio with her to call a lawyer if he wished to do so. [ 31 ] Because the applicant was not advised when his jeopardy of being charged commenced, his “decision” to answer questions posed by Officer Green was not a free and meaningful choice, and thereby a violation of his right against self-incrimination as guaranteed by

section 7 of the Charter . [ 32 ] Officer Green testified that her call to the applicant began as an inspection, but after he provided her with the coordinates of the buoys, it became an investigation. [ 33 ]

Section 7 guarantees the right to silence. It includes the right to choose whether to make a statement to authorities. The right is not absolute, but may be discharged only by a waiver.

The person in jeopardy has the right to make a free and meaningful choice about whether to remain silent or waive that right. [ 34 ] The argument is that the applicant could not and did not make a free and meaningful choice to answer Officer Green’s questions as he was (1) not advised that he was a person of interest or under investigation, and (2) he was not advised that Officer Green was preparing to lay a charge against him. [ 35 ] Whatever the applicant said to Officer Green, he did so without knowing that the seemingly harmless “inspection” had developed into an investigation in the mind of Officer Green and that she was leaning towards charging him.

The applicant is clear in his evidence that had he known that there was a change in circumstances, he would have contacted a lawyer. (ii). Respondent’s argument [ 36 ] The contact with the applicant happened in the context of an investigation and not an inspection. There was no shift from inspection to investigation and there was no change in jeopardy.

[ 37 ] This is not a case where an inspection exposes a violation and then the inspection shifts to an investigation without a Charter caution being provided. [ 38 ] This is a case where the violation has been clearly documented prior to the conversation and the conversation starts with the officer outlining that there is a violation and providing Charter rights in relation to that specific offence.

The offence never changes, nor does the level of jeopardy. [ 39 ] Officer Green took all of the necessary steps to protect the applicant’s Charter rights at the very outset of her questioning. [ 40 ] It appears from the evidence that Officer Green gave the applicant an opportunity to explain why that violation was taking place; that is, the reasons for the nets being in the closed zone prior to initiating charges. An appropriate explanation could constitute a due diligence defence to the strict liability offence already committed.

While complying with the Charter , the officer commenced an inquiry into whether or not there was a defence that would justify her not laying the charge. [ 41 ] The opportunity to provide an explanation was given to the applicant after his level of jeopardy had been established and that level did not change. No additional caution was required. [ 42 ] Officer Green’s testimony suggests there is a change from inspection to investigation. However, based on the nature of the contact it is submitted that it was an investigation from the outset.

She acted accordingly. [ 43 ] There are additional factors which suggest that this was an investigation that never changed in nature. The vessel was contacted for the express purpose of discussing the violation. The first step taken was to advise the ship’s captain of the violation and to provide Charter cautions. [ 44 ] Officer Green was under the mistaken belief that an investigation only commences once she determines that charges are to be laid.

This error does not affect the rights of the applicant because Officer Green went on to comply with her Charter obligations, notwithstanding. [ 45 ] Officer Green took great care to make sure the applicant knew his Charter rights and had the opportunity to exercise them should he choose to do so. (iii). Analysis [ 46 ] Officer Green was a trustworthy and credible witness. She gave her evidence in a forthright and fair manner. There appeared to be no animosity between Officer Green and the applicant.

Both individuals appeared to make every effort to tell the truth when they gave their evidence on this voir dire. [ 47 ] When listening to the audio recording, it is clear that both individuals were respectful towards each other. [ 48 ] I find that once the problem of talking over each other was corrected, Officer Green went out of her way to make sure that she repeated everything that was said in order to be sure that the applicant had heard what he needed to in order to proceed. [ 49 ] It is clear that the applicant understood from the very beginning of the conversation why Officer Green was calling him.

She told him that she had identified fishing gear in the closed fishing area and, although he must have depressed the talk button on his VHF radio and cut off the rest of her initial statement to him, he had to have understood that important part. I say this because when we pick up the tail end of his conversation once Officer Green is finished talking we hear the following, “…they swing back and forth with the tide, over”. He is trying to explain to her why his gear was in the closed area.

[ 50 ] At that point, Officer Green knows something is wrong and so she takes great care to repeat the information for a second time. She tells the applicant once again that she has identified a violation. She tells him that his gear has been identified in the closed fishing area. She tells him that she is going to read to him his Charter rights and caution and asks him if he understands. [ 51 ] The applicant confirms that he understands and she proceeds to tell him that before he decides to answer any questions concerning this investigation, he can contact any lawyer he wishes.

She says if he wants to he can get free temporary counsel appointed by Legal Aid immediately and she says that a telephone will be made available to him for this purpose. She ends by asking, “Do you understand?” The applicant’s answer is, “Roger. I understand.” [ 52 ] She then tells him that he can speak to a lawyer of his choice and that she will provide him with a telephone directory. She says she will provide him with privacy when he calls a lawyer so that he can speak to him or her freely. Again she asks if he understands.

The answer by the applicant is “I understand”. [ 53 ] The next question is: “Do you wish to call a lawyer now?” The Applicant’s answer is: “No, I don’t.” [ 54 ] Officer Green confirms that he has understood her and that he does not wish to call a lawyer. The applicant says, “That’s correct. I will be contacting my company.” He then attempts to tell her once again his explanation for why the buoys are in the restricted area. [ 55 ] Officer Green cuts him off because she does not want him to incriminate himself.

She wants to make sure that before he says anything that he is fully advised of his rights by providing him the caution. She tells him clearly that he does not have to say anything unless he wishes to do so, but whatever he does say will be taken down in writing or tape recorded and may be given in evidence. She asks if he understands her. [ 56 ] Again there is some indication that they are talking over one another as some of what the applicant says is lost in the recording. She stops him from talking for a second time and repeats the warning.

It is the same as before, but this time after he is asked if he understands the applicant says, “Okay.

I understand.” [ 57 ] Although I agree that Officer Green’s viva voce evidence seems to suggest that she started by conducting an inspection and then moved into an investigation, her position is not supported by the words she said to the applicant when she spoke to him that day. [ 58 ] On page three of the verbatim transcription of the conversation between Officer Green and the applicant held over the VHF Radio that day ,she says the following: “Before you decide to answer any questions concerning this investigation, you may contact a lawyer… [emphasis added]” [ 59 ] Even though it seems likely that the applicant may not have heard this part of the conversation, the wording used speaks to the frame of mind of Officer Green at the time. [ 60 ] She then repeats the same wording on page four, line 16 of the transcript.

She says: “Before you decide to answer any questions concerning this investigation, you may contact a lawyer… [emphasis added]” [ 61 ] This time it is clear that the applicant heard what Officer Green said because he tells her that he understands. [ 62 ] I believe that Officer Green, in an effort to be as fair as possible when giving her evidence on this voir dire, indicates that she viewed her initial interaction with the applicant as an inspection as opposed to an investigation.

[ 63 ] She goes on to say that she found gear in the closed area which was clearly a contravention under the Regulations , but that doesn’t always necessarily mean that a charge will be laid.

The Officer says that at that point she considers herself to be inspecting because the applicant may have a very excusable reason for the violation. [ 64 ] Officer Green testified that when it did not appear that he was telling her anything that would be a valid reason as to why the gear was in the closed area, she shifted from an inspection to an investigation. [ 65 ] I find that any reasonable person would find that whether or not Officer Green saw this as an inspection or an investigation is not determinative of the issue to be decided. [ 66 ] Her subjective belief is not material to the issue in question because from the very beginning of her interaction with the applicant she acts as if this is an investigation and she takes great pain to make sure he understands his rights under the Charter . [ 67 ] In further support of this position, the officer uses the word “investigation” and not “inspection” when talking to the applicant on the radio.

The word “inspection” is not contained anywhere in the statement. [ 68 ] Officer Green identifies herself and makes sure she is speaking to the captain of the vessel. She starts by making sure the applicant understands why she is calling him. [ 69 ] It is very clear from the testimony of both Officer Green and the applicant that the conversation began with a clear indication that a violation had occurred. Officer Green told the applicant in plain language exactly what the violation was and she told him that he might get charged.

The applicant confirms in his evidence that he understood this. [ 70 ] Officer Green’s testimony, given more than two years after the event, talks about an inspection and then an investigation. She says that in her mind, the applicant’s jeopardy changed, but her actions as set out in the recorded transcript taken at the time does not support this. The violation does not change at any time. The applicant’s jeopardy remains the same throughout the entire interaction. (iv).

Conclusion [ 71 ] I find that this was an investigation from the beginning and even if the Officer felt in her mind that it started off as an inspection, she did not act as if that were true. [ 72 ] I find that on the whole of the evidence before me, there was no change in jeopardy with respect to the violation identified. The applicant knew from the beginning what the violation was and he chose to provide an explanation on at least two occasions while being questioned. His decision to answer Officer Green’s questions constituted a free and meaningful choice on his part and there was no violation under

section 7 of the Charter . B. Was there a

section 10 breach of the applicant’s rights under the Charter ? (i). Applicant’s argument [ 73 ] In order for a suspect to make an informed decision regarding whether or not they wish to answer questions from a state agent, they must be informed of what they are being investigated for and what their legal jeopardy is. [ 74 ] The applicant was not informed that he was the subject of an investigation which could lead to charges. He was not aware of his legal jeopardy when he was asked seemingly innocent questions by Officer Green.

[75] This was a breach of the applicant’s 10(

a) rights under the Charter. [76] There are two duties imposed on police when providing accused persons their right to counsel under

section 10(

b) of the Charter. There is an informational obligation and an implementation obligation. [77] The Supreme Court of Canada in R v Bartle, [1994] 3 SCR 173, [R. v. Bartle], outlined the requirements of theinformational component as being comprehensive in scope and that it must be presented in a comprehensible manner. Information abouthow to access free, preliminary advice should be included in the standard 10(

b) caution. [78] The applicant was not aware that he was a suspect in the investigation before he answered the questions posed by Officer Green,nor was he aware that he would be facing charges.

There is a significant lack of information that was made available to him before heprovided his answers and, therefore, he did not make an informed decision to answer those questions. [79] Further, an individual charged with an offence, must be made aware of how they can actually contact a lawyer. [80] Officer Green testified that had the applicant exercised his right to speak to a lawyer, she would have then advised him of theprocedure. She would have told him how to contact counsel. [81] The Supreme Court of Canada has commented on that specific approach in R. v.

Bartle and has made it very clear that OfficerGreen’s approach is backwards. For an individual to actually make an informed decision whether to even contact counsel, they must bemade aware of how they can actually do so. [82] There was poor reception over the radio causing Officer Green and the applicant to speak over each other at times.

Due to theunique facts of this situation, being that the applicant was not receiving clear information, it is submitted that his rights were not relayedto him in a comprehensive manner. [83] The applicant did not at any point either explicitly or implicitly waive his right to counsel. He did not appreciate the true nature ofhis situation when he agreed to answer the questions posed by Officer Green. Furthermore, Officer Green made no efforts to make surethat he understood his initial jeopardy and his change of jeopardy which she says occurred. [84] Part of the police responsibility in ensuring

section 10(

b) compliance is advising the detainee if the investigation takes a new andmore serious turn. [85] It is clear from the evidence in this case that Officer Green initially approached this matter as an inspection. She provided Charterrights to the applicant at that stage. Officer Green then testified that it became an investigation and that she did not advise the applicantof this significant change of circumstances, nor did she give him an opportunity to contact counsel at that point. [86] There was a clear breach of the applicant’s

section 10(

b) rights in this case. (ii). Respondent’s argument [87] R v Evans, (SCC), [1991] 1 SCR 869, 63 CCC (3d) 289 [R. v. Evans], is still the leading authority to be applied onsection 10(

a) issues. The informational component contained in

section 10(

a) of the Charter can be inferred based upon thecircumstances and context of a given case. If it is reasonable to conclude that the detained person would have understood why they arebeing detained, then there is no violation of their rights under

section 10(

a) of the Charter. [88] The applicant was expressly informed that this was an investigation related to a violation for having fishing gear in the prohibited

area and that he would be the person charged. [89] It is clear from the applicant’s evidence that he knew he was facing the prospect of being charged.

He confirmed this in histestimony. [90] It is clear from the evidence that not only was the applicant expressly advised that he was being investigated, it was hisunderstanding at the time of the radio contact from the officer that he might be charged personally. [91] The applicant understood that he was speaking to a DFO officer who was investigating illegal fishing in a prohibited area, that hewas the person under investigation, charges could be laid, and that he had the right to speak to a lawyer and choose to answer thequestions posed. [92] There was no

Section 10(

a) breach in this case. [93] In R. v. Bartle at 192, Lamer C.J. confirmed three duties set out in R v Manninen, (SCC), [1987] 1 SCR 1233, 34CCC (3d) 385, which are imposed on police who arrest or detain an individual:

(1) To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legalaid and duty counsel;

(2) If a detainee has indicated a desire to exercise his right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and

(3) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [94]

Section 10(

b) of the Charter imposes two duties on the state when questioning detainees. There is an informational duty whichrequires the person be informed of his or her right to counsel without delay. There is also a duty to explain how the detainee is toimplement his right to counsel. This means that police are required to provide the detainee with a reasonable opportunity to retain counseland refrain from eliciting evidence until that happens or until the detainee waives that right. This second duty is not triggered unless adetainee indicates a desire to exercise his or her right to counsel. [95] The Supreme Court of Canada decision in R. v. Evans, talks about the purpose of

section 10(b). Although the police have anobligation to inform a detainee of his or her

section 10(

b) rights, it does not require the police to take further steps to ensure that adetainee understood those rights absent evidence of the detainee’s lack of comprehension. [96] The onus is on the accused to demonstrate that he or she did not comprehend their rights. In this case, it is clear that the applicantwas listening to Officer Green when he was read his Charter rights and cautions.

The applicant states in his evidence that he knew that hecould have called a lawyer and that he could make that call immediately. [97] The applicant did waive his right to counsel and he admitted this when being cross-examined by the following exchange: Q: …and then she says to you: “Do you wish to call a lawyer now?” and your response is: “No I don’t”. Can we agree on that? A: Yes. [Audio Recording] [98] Officer Green confirms what the applicant had told her in relation to whether or not he wanted to call a lawyer.

The followingexchange takes place on the audio recording: Officer Green: “I have heard that you understand your Charter of Rights and that you don’t wish to call a lawyer; is that correct?” The applicant: “That’s correct.”

[ 99 ] There was no Charter violation under

section 10(b) . (iii). Analysis [ 100 ]

Section 10(a) , and (

b) of the Charter reads as follows: Everyone has the right on arrest or detention (

a) To be informed promptly of the reasons therefor; (

b) To retain and instruct counsel without delay and to be informed of that right. [ 101 ] Previous findings made on the first issue are also applicable to the applicant’s argument on whether or not his

section 10 rights under the Charter have been breached in this case. I do not intend to repeat my analysis except to provide a brief

summary of the findings that also relate to this issue. [ 102 ] I find that the applicant was informed that he was being investigated for a violation under the Fisheries Act . He knew that his gear had been found in a closed area and that he could be charged with an offence under the Fisheries Act as a result of that.

He knew all of this before Officer Green read him his rights and caution under the Charter . [ 103 ] The applicant’s jeopardy did not change at any time during his interaction with Officer Green. [ 104 ] From the outset, the applicant was advised of the reason for the questions being asked and the applicant confirmed that he understood this according to the taped statement and when giving his evidence on this voir dire. [ 105 ] Case law supports the proposition that the police or state authorities have three obligations under

section 10 (

b) of the Charter : (1) they must provide the detainee information about their ability to call a lawyer forthwith which includes a requirement to tell them about the availability of Legal Aid for free, preliminary advice; (2) if the detainee wishes to contact a lawyer, he or she must be provided with a reasonable opportunity to do so which includes the provision of reasonable information and instructions on how to contact counsel; and, (3) the police or state authorities must refrain from eliciting evidence until the detainee has had that reasonable opportunity to contact a lawyer. [ 106 ] The information provided to the applicant with respect to his

section 10 rights under the Charter was as follows. [ 107 ] Officer Green identified herself as a DFO Officer who was investigating a violation involving the applicant’s vessel. She made sure she was speaking to the captain of the vessel and she explained that there was fishing gear identified as belonging to the Sikuvut in a prohibited area. [ 108 ] She clearly told the applicant that this was an offence under the Fisheries Act , he could be charged with an offence, and that she wanted to read him his Charter Rights and Warning. [ 109 ] When the applicant was giving evidence in chief he was asked by Mr.

May: “…when she called did you understand her to be telling you that you might get charged with something?” His answer was “That’s the way I understood it. That’s the way it sounded to me.” [ 110 ] Officer Green told the applicant that if he wished to speak to a lawyer she would provide him with a telephone directory. She told the applicant that if he is charged with an offence, he can apply to Legal Aid for assistance and she told him that she would provide privacy when he calls a lawyer so that the applicant can speak to him or her freely. She asks if he understands this and he tells her that he

does. [ 111 ] She then asks if he wants to call a lawyer now and the applicant replies; “No I don’t”. She confirms that he has understood his rights and that he does not want to call a lawyer. The applicant says, “That’s correct. I will be contacting my company...” [ 112 ] The applicant then tries to give Officer Green an explanation for why the fishing gear is located in a closed area. She stops him and tells him that she needs to provide the warning before he answers any further questions.

She clearly tells him that he does not have to say anything and that anything he does say will be taken down in writing or tape recorded and that it may be given in evidence. [ 113 ] At this point, there is another episode where the applicant has depressed the talk button on his VHF radio and is talking over top of Officer Green. [ 114 ] Officer Green interrupts the applicant for a second time as he is trying to explain why his gear is in the closed area and reads the caution to him again. This time she makes sure he has heard her and that he understands. He says that he does. (iv).

Conclusion [ 115 ] The applicant was aware that he was a suspect in an investigation whereby his fishing gear was located in a prohibited or closed area in contravention of the Fisheries Act . He was also aware that he may be facing charges because of this. [ 116 ] The applicant has no difficulty understanding the English language and I find that there were no issues as to his mental capacity. [ 117 ] At no time did the applicant indicate that he did not understand what he was being told.

His answers in response to the questions posed by Officer Green are responsive and appropriate in the circumstances. [ 118 ] The evidence supports a finding that the applicant understood his rights to counsel under the Charter . He knew he could call a lawyer and that he had the right to remain silent. [ 119 ] Officer Green told the applicant that he could get free temporary counsel appointed by Legal Aid immediately and that he could do that by calling a Legal Aid representative on the telephone that she would make available for him.

She asked if he understood and he said he did. [ 120 ] She then told him that she would provide him with a telephone directory and that, if he is charged, he can apply for Legal Aid. [ 121 ] Finally, Officer Green told the applicant that she would provide him with privacy if he decided to call a lawyer so that he could speak to him or her freely. Again, the applicant said he understood. [ 122 ] The applicant then told Officer Green that he did not wish to call a lawyer at that time.

I find that he did appreciate the true nature of the situation when he agreed to answer Officer Green’s questions. [ 123 ] Accordingly, it is the finding of this Court that there was no

section 10 breach of the applicant’s rights under the Charter . C. If there was a breach, should the evidence be excluded under section 24(2) of the Charter ?

[ 124 ] Given this Court’s findings that there was no breach of the applicant’s rights under the Charter , there is no need to address this issue in this case. IV. FINAL CONCLUSION [ 125 ] The application for an order to exclude the applicant’s statement made to Officer Green on October 20, 2012, is hereby dismissed. [ 126 ] There will be an order that the statement of the applicant is admissible into the trial proper as evidence against both the applicant and Oujukoaq Fisheries Ltd. Dated at the City of Iqaluit this 16th day of June, 2015 ___________________ Justice B. Tulloch Nunavut Court of Justice