R. v. A.B., 2019 NUCJ 14

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. A.B., 2019 NUCJ 14 Date: 20191028 Docket: 08-18-762 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: A.B. ________________________________________________________________________ Before: Mr. Justice Johnson Counsel ( Crown ): A. Seagal Counsel ( Accused ): A. Landry Location Heard: Iqaluit, Nunavut Date Heard: June 7, July 19, and September 23-24, 2019 Matters: Voir Dire on admissibility of statements given by youth under s. 146 of the Youth Criminal Justice Act SC 2002, c 1 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: Under section 110(1) of the Youth Criminal Justice Act , “no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements to protect vulnerable parties. Letters have been assigned at random. Contents I. OVERVIEW ... 4 II. ISSUE .. 6 III. ARGUMENTS .. 6 A. Defence . 6 B. Crown .. 10 IV. ANALYSIS .. 14 V. CONCLUSION .. 21 I.

OVERVIEW [ 1 ] The accused young person was charged with using a firearm to rob two different victims on September 25 and October 4, 2018 at the City of Iqaluit contrary to s. 344 (1)(a.1) of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ]. He is also charged with pointing a firearm on both dates contrary to s. 87(2) of the Criminal Code . With respect to the September 25 incident, he is also charged with uttering a threat to cause death contrary to s. 264.1(1) (

a) of the Criminal Code . Finally he is charged with robbery by covering his face with respect to the October 4 incident contrary to s. 351 (2) of the Criminal Code . [ 2 ] The suspect in the September 25 incident was described as using a black rifle type firearm and wearing a green Nunavut Ranger hoodie. After patrolling Iqaluit the RCMP located a male young person named C.D. in front of the Storehouse bar who was also wearing a green Ranger hoodie. The police told C.D. that a person wearing a similar green hoodie was involved in a robbery. He denied any

knowledge of the robbery and gave the police his address and permission to take a picture of the hoodie. The next morning C.D. gave a statement to the police that implicated the accused in the September 25 robbery. [ 3 ] Around 2 a.m. on the morning of October 4, 2018 in the City of Iqaluit a taxi driver called RCMP dispatch and told them he was being robbed near the library and house 204 by a male with a firearm and a female with a knife. Although both the male and female had their faces covered by a mask, the taxi driver recognized the female, E. F.

The taxi driver had picked her up before a number of times and knew she lived at house 560. The police checked the address and discovered that E.F. had some prior involvement with the police and was in a relationship with the accused. [ 4 ] The police dispatch treated the call as being a potential active shooter situation. The six responding police were on high alert, dressed in full body armour and carrying carbine rifles. The taxi driver described the male as a young, short Inuk who was wearing a green hoodie similar to those worn by members of the Nunavut Rangers organization.

The police began patrolling Iqaluit looking for anyone carrying a rifle. The police went to the library area and found five or six young persons hanging out including the accused and E.F. Corporal G. Moore [Moore] knew what the accused looked like from his involvement in the investigation of the September 25 robbery. Moore then noticed another female wearing a green Ranger hoodie. He asked her about it and she said the hoodie belonged to the accused. [ 5 ] Moore approached the accused and told him he was investigating an armed robbery.

He informed him that anything he said could be used as evidence in court and that the accused did not need to talk to him. He also told him he could have an adult or a lawyer present during any interview. Moore testified that the accused understood the caution and that Moore then asked the accused if he knew where the firearm was located. The accused responded that he was involved in the robberies and that the weapon was a pellet gun. Moore arrested the accused and again gave him a similar caution to the first one but did not make any notes.

He later prepared a written report where he typed that he gave the police caution and the youth caution. The reason given for the lack of notes was because of a concern for public safety. [ 6 ] Moore asked the accused where the rifle was and the accused said he threw it in the water. The police searched the beach area but never found the rifle. The Crown conceded in submissions that this statement was not in compliance with s. 146 of the Youth Criminal Justice Act , SC 2002, c 1 [ YCJA ]. [ 7 ] The accused was taken to the detachment and lodged in a cell.

Moore ascertained that the accused wanted his grandmother present for questioning and brought her to the detachment. He then obtained a videotaped confession from the accused. At p. 18 of the transcript the accused signed a document called Youth Criminal Justice Act Waiver that stated he did not want his lawyer present. The police then obtained inculpatory statements from the accused admitting to the robbery. [ 8 ] The Court conducted a voir dire hearing and heard evidence from Moore and Constable Bruce Moore that included watching the videotaped confession. The Defence did not call any evidence. II.

ISSUE [ 9 ] The issue I must determine is whether the statements were voluntary and in compliance with s. 146 of the YCJA . III. ARGUMENTS A. Defence [ 10 ] The Defence relied heavily on the judgment of Bychok J. in R.v. Angootealik , 2017 NUCJ 17 , 141 WCB (2d) 615 [ Angootealik ] to advance an argument that the cautions given by Moore were insufficient to satisfy the standard tests for the voluntariness of a confession.

That case involved an adult while the case at bar concerns a young person and the Defence further argues that the police did not satisfy s. 146 of the YCJA . [ 11 ] Bychok J. held in Angootealik that merely verbally reciting a caution from memory that “anything said could be used in evidence” was insufficient to satisfy the voluntariness rule particularly where the officer did not make contemporaneous notes. [ 12 ] In this case the police were engaged in a high stakes arrest with full equipment involving a young person and did not take any notes. [ 13 ] The Defence argues that the first statement is not admissible because it was tainted by improper police conduct.

Next, the defence argues that the first statement tainted the third taped statement because it was not discrete but linked to the first statement in that the police used information from the first statement to obtain the third statement. The Crown conceded the second statement was inadmissible, as noted below. (

i) First statement [ 14 ] The Defence argues that the first statement was tainted because it was obtained under false pretences. Moore had sufficient information to arrest the accused at the library but decided against it because he knew arresting the accused would have afforded the accused many more legal protections.

Secondly, when convenient Moore used public safety concerns to justify failing to provide the accused the necessary information and tools to exercise those protections. [ 15 ] Just before the initial contact with the accused at the library the police had received a report from a cab driver about a “Bonnie and Clyde” type robbery. The information the police obtained from the taxi driver led to the identification of E.F. This information in addition to the information received from C.D. was sufficient to justify the arrest of the accused.

If that was not enough then the police had more than enough when the accused and E.F were found near the location of the robbery. The final piece of evidence that should have convinced the police was the discovery of the green hoodie on the unknown female that she said belonged to the accused. [ 16 ] In examination-in chief, Defence argued that Moore carefully avoided calling the accused a suspect when Moore approached the accused at the library because Moore knew that if he did treat the accused as a suspect Moore ought to have arrested him.

That would have meant taking control of him and escorting him to the police vehicle where Moore would have had to advise him of his right to counsel and having an adult present. The cautions would have been read from a caution statement card so the court would know exactly what was said and Moore would also have had the opportunity to confirm what was said by making appropriate notes. [ 17 ] Instead of arresting the accused Moore proceeded to question the accused under the guise of an investigative detention. However, the detention was mishandled because he did not read the caution from a caution card.

Instead he gave it from memory and did not take any notes. As a result the court does not know either what was said or what response was given by the accused. Moore simply wrote down “Gave police and youth caution. Wanted to talk. Informed of investigation proper”. [ 18 ] Moore could not recall whether he made the field notes before the report notes. It is possible he did the report first and the field notes second so it would look like he made contemporaneous notes. Moore’s justification for not taking notes was safety concerns. He did not want his head down on a call involving firearms.

If Moore was really concerned about safety, according to the Defence argument, he would have searched the accused when he approached the group and when he arrested him. He did neither and was not concerned about public safety. He simply did not want to inform the accused of his rights before he started questioning him. [ 19 ] In

summary, Defence argued, Moore did not want to calmly deliver all this information and give the accused time to think clearly and rationally about his options. Instead, Moore presented the information in a fluid manner and absolved himself from taking notes under the guise of safety concerns. Finally, the appearance of the police in what the Defence characterized as “SWAT” gear to a group of young Inuit was extremely intimidating and bound to affect the anxiety level of any reasonable person and prevent rational thought. Although Moore described the accused as being calm, it is also possible he was like a deer in headlights at night.

(ii) Recorded statement [ 20 ] Defence submitted that the problems with the recorded statement include a confusing and obfuscated youth caution and breaching the right to counsel. Moore twice ignored the accused’s request to exercise his right to counsel. Finally, the questioning in the recorded statement relied on three pieces of information from the first statement that were improperly obtained.

That information was used by Moore to convince the accused that there was no point in exercising his right to silence. [ 21 ] According to the Defence, the video demonstrates that it took Moore 31 minutes to fully explain the youth caution. He was constantly repeating and inadequately explaining legal concepts for two reasons. First, he wanted to confuse and obfuscate the rights and protections afforded a young person under the YCJA while maintaining the appearance of trying to be helpful.

This was similar to Moore’s attempt to maintain the appearance of contemporary and thorough note taking by writing in his field book despite not taking any notes and not knowing whether he typed his report or took notes in his fieldbook first. [ 22 ] Second, Moore did not understand his obligations under the YCJA because he actively, though not expressly, tried to dissuade the accused from exercising his right to counsel. At 13:50 minutes of the video the accused says he wants to talk to a lawyer.

The usual response of an officer who wants to maintain the integrity of an interrogation would have been to take the accused to a phone room so he could try to call a lawyer. Moore took a different approach and asked the accused how he would like to exercise his options. By ignoring the accused’s request Moore made it more difficult for the accused to have the courage to make the request a second time. It was not until 27:30 of the video that the accused with the support of his grandmother asserted his right to counsel effectively.

The video shows Moore’s reaction as being polite nonchalance. [ 23 ] Defence Counsel submits that Moore’s approach should not be the norm for Nunavut where the usual interaction is between Inuit arrestees and uniformed non-Inuit police officers. It’s hard enough to assert one’s right to an officer’s face, let alone when one is racialized and the officer is not. [ 24 ] After the accused exercised his right to counsel Moore started the real interrogation by asking the accused at line 873 of the transcript to tell Moore something about his background.

Once that introduction was over Moore referenced his earlier conversation with the accused about the firearm being near a boat by the beach. At line 969 Moore mentioned a conversation he had with the accused concerning the co-accused E.F. while they were on the beach searching for the firearm. Finally, at lines 1175-1182 when Moore wanted to drag out a reenactment of the robbery from the accused, he reminded him about the inculpatory statements he made at the side of the road near the library that were involuntary and improperly solicited. B. Crown (

i) First statement [ 25 ] The Crown argues that the RCMP did not have sufficient grounds to arrest the accused when Moore engaged him at the library. As a result s. 146 of the YCJA is not applicable. At the time the police engaged in conversation with a group of young people at the library they knew E.F. was involved in the robbery. They also had some information about the accused. They knew from another young person that the accused had a green Ranger hoodie. They also knew the accused was in a relationship with the accused and had prior dealings with the RCMP.

Moore testified that he did a search of his name in police records and saw a photograph of the accused wearing the same hoodie that police had seized. When the police questioned the female young person wearing the green hoodie she said it belonged to the accused. Moore engaged with the accused and he seemed calm and not under the influence of alcohol or drugs. He also seemed to understand English. At this point before Moore asked the accused about his involvement in the robbery, he did not have grounds to arrest the accused.

Since he did not have grounds to arrest he had no reason to pat down the accused. [ 26 ] The Crown also argues that the police had legitimate concerns for public safety. All the police knew was that someone committed a robbery using a firearm and they did not know where the risk was coming from. [ 27 ] Moore then advised the accused that he did not have to speak with him and had the right to a lawyer and to have an adult present. The accused declined the offer and Moore asked the accused if he was involved in the robberies. He responded that he was involved and

that the weapon was a pellet rifle. At this stage Moore had grounds to arrest the accused and the first statement ended. The accused was arrested and s. 146 became applicable. [ 28 ] Regarding the second statement, Moore asked some further questions about the firearm and then the accused said he wanted to see his grandmother G.H. Moore told the accused he would get his grandmother but first he took the accused to a boat on the beach where the accused had indicated he had disposed of the weapon. Moore conducted a search but did not find the weapon and the accused was taken to the detachment.

This is the end of the second statement that the Crown admits was not in compliance with s. 146 of the YCJA . (ii) Recorded statement [ 29 ] The Crown obtained an admission from Defence Counsel that Moore made no promises or threats and that there was no oppression. However, Defence Counsel would not admit there was no trickery and noted the Defence argument about Moore’s actions in providing information in a fluid manner.

The Crown understood that the basic Defence position was that the accused did not have an operating mind and as a result the statement was not voluntary. [ 30 ] The Crown submitted that all the indicia of voluntariness by the accused were present in the interview. The accused received his rights and had them explained in a language that was appropriate to him as required by s. 146 . The police read from a caution statement and then further explained those rights over the next 30 minutes of the statement.

The Crown argues that Moore was not trying to confuse the accused but was taking care to ensure that he really understood his rights before he waived them by allowing him access to a lawyer. [ 31 ] The transcript reveals that Moore took care to make sure the accused really understood his rights by having the accused repeat back what Moore was telling him. He also tried to simplify the legal terms into language the accused understood. This approach is the reason it took 30 minutes to explain to the accused what his rights were.

He was informed of his rights in the presence of his grandmother and given time to talk to her when needed. He was not impaired and was told about his rights multiple times. [ 32 ] The net result is that the accused had an operating mind. When the accused made a decision to talk to a lawyer he was put in touch with one. After speaking with a lawyer and receiving disclosure the accused made a voluntary decision to keep talking.

The accused’s right not to talk was canvassed by Moore and presumably by the accused’s lawyer and there is no evidence he misunderstood those rights or was dissatisfied with his legal advice. [ 33 ] The reason Moore did not immediately provide the accused with access to counsel until 30 minutes after he first mentioned it was because Moore had no intention to begin questioning. Instead he made extra efforts to ensure the accused understood his rights. [ 34 ] The Crown relies on R v SS , 2007 ONCA 481 , [2007] OJ No 2552 [ SS ] to establish the extent of the duty on the police to comply with s. 146 of the YCJA .

The Ontario Court of Appeal noted in SS that the police have to be very clear about the information communicated to a young person when they are in custody and seek legal advice or assistance from an adult. The court was clear that the adult or lawyer must be present when the police take a statement from a young person. It is a very onerous requirement for the police to use very specific language.

In SS there was no access to counsel because the young person refused to speak to a lawyer or an adult. [ 35 ] The facts in this case are very distinguishable from those in SS where the young person did not understand the importance of speaking to legal counsel or an adult. In this case the accused was provided both access to legal counsel and to an adult and the adult remained throughout the taking of the statement. [ 36 ] The Crown acknowledges that it has the burden to prove beyond a reasonable doubt that the young person who made the statement understood his rights under s. 146 .

The test must be applied in an objective manner. As noted in R v LTH , 2008 SCC 49 , [2008] 2 SCR 739 the age and capacity of the young person must be taken into account. The Crown submits that the police knew the accused had prior dealings with police and appeared calm and in control of his faculties. They took various measures to ensure he understood his rights and facilitated his access to an adult and to legal counsel. The accused then executed the waiver of his rights in writing as shown in the video. Taking all these considerations into account the Crown submitted that s. 146 was complied with.

[37] The Crown relies on R v I (LR) and T (E), (SCC), [1993] 4 SCR 504, [1993] SCJ No 132 [I (LR)] to argue that thesecond inadmissible statement did not taint the recorded statement. That case set out a number of factors that a court should considerwhen deciding whether an inadmissible statement taints an otherwise admissible later statement.

They include the length betweenstatements, the discovery of new information after the completion of the first statement, the presence of the same officer, the similaritybetween the two circumstances and whether the young person was informed that the previous statement may be inadmissible. [38] Although it was the same officer taking both statements and they were half an hour apart the Crown argues that they were verydifferent statements in very different circumstances.

The second one took place when Moore was in full “SWAT” gear while the thirdone took place on video in the detachment in the presence of the accused’s grandmother. The third statement took place after Moorespent half an hour making sure the accused understood his rights. Finally, in the third statement the accused admitted he lied aboutthrowing the rifle into the water when in fact it was in the boat and this fact was not mentioned in the second statement.

The Crownargues that the accused’s admission in the third statement that the second statement was a lie further supports the argument that the thirdstatement was not tainted. [39] The Crown further relied upon R v Wheelton, 71 CCC (3d) 476, (YKCA) to argue that an inadmissiblestatement does not automatically taint a later statement. In that case the accused was under severe psychological stress after he failed apolygraph test. He gave a statement that was ruled inadmissible but when he had calmed down he gave another statement that was foundto be admissible by the court. [40] In

summary the Crown submits that Moore did not use trickery, threats, promises or oppression to obtain the confession. Thepolice made notes to the best of their ability in a dangerous situation. There was no attempt to conceal the facts or hide how thingsprogressed. The second statement did not taint the third voluntary statement. [41] The Crown distinguished Angootealik because that case dealt with an adult and an accused who had some difficulties withunderstanding English and in particular legal concepts.

The RCMP failed to address these problems by making further attempts to ensurethe accused knew what he was facing. In this case Moore spent 30 minutes trying to ensure the accused understood his rights.Furthermore, in Angootealik Bychok J. found the evidence of one of the officers was unreliable. While Moore was deficient in makingnotes on the first two statements this Court has the benefit of seeing the entire interaction between Moore and the accused in the thirdstatement. IV.

ANALYSIS [42] The Crown conceded in argument that the second statement was inadmissible because the RCMP failed to comply with s. 146(2) ofthe YCJA. [43] I am satisfied that the first statement was not voluntary and also not in compliance with s. 146(2) of the YCJA. Moore had ampleevidence to arrest the accused when he found out that the accused had given a green hoodie to an unknown female in the group at thelibrary. He testified that the accused was implicated as a suspect in the September 25 robbery and he had seen a picture of him the policefile.

He also knew the accused was in a relationship with E.F. who had been identified as the female who had been involved in theOctober 4 robbery. Finally he should have been highly suspicious that both were at the scene of another robbery. When he found outabout the green hoodie on the unknown female he should have had no subjective or objective doubt that he had grounds to arrest theaccused. [44] By deciding not to arrest the accused Moore avoided taking extra steps to ensure the statement was voluntary and in compliancewith s. 146 of the YCJA.

It would also have given the accused time to think in a calmer environment where he was not confronted by a“SWAT” team in full gear. [45] I accept the Defence submission that Moore used public safety to justify the lack of proper note taking. As Moore acknowledged incross-examination other members of his team were able to make notes. As a result I have insufficient information to determine if the

accused understood his rights. As noted in SS the police have to be very clear about the information communicated to a young person when they are in custody and seek legal advice or assistance from an adult. This includes taking notes so that a court can verify objectively that the accused understood his rights. As noted by Bychok J. at para 21 in Angootealuk : [I]t is sometimes not enough for the officer simply to recite the person's rights. This point was made in 1991 by Justice McLachlin for the majority of the Supreme Court of Canada in R. v.

Evans : In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the police are required to go no further ... But where, as here, there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to accused; they must take steps to facilitate that understanding. [ 46 ] In addition, the police must ensure compliance with s. 146(2) of the YCJA . That

section states:

(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless (

a) the statement was voluntary; (

b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that (

i) the young person is under no obligation to make a statement, (ii) any statement made by the young person may be used as evidence in proceedings against him or her, (iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and (iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise; (

c) the young person has, before the statement was made, been given a reasonable opportunity to consult (

i) with counsel, and (ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and (

d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person. [ 47 ] As stated at para 30 in SS the police have additional obligations when dealing with a young person: [30] Thus, s. 146(2)(b)(iv) is an enhanced procedural protection that Parliament deemed important, among other purposes, to provide reasonable protection for a young person confronted by police officers seeking a statement.

As the Supreme Court of Canada has explained, this protection is important because, no matter well intentioned the officer, young persons are susceptible to feeling intimidated by the police, whom they consider to be persons of significant authority and power.

In addition, young persons may lack the maturity to consider the consequences of unburdening themselves of their misdeeds, particularly when encouraged to do so by an apparently understanding (or, alternatively, formidable) police officer. [ 48 ] I find the first statement was not voluntary and like the second statement was not in compliance with s. 146 of the YCJA . [ 49 ] I am also satisfied that the third statement was voluntary and in compliance with s. 146(2) for many of the reasons advanced by the Crown.

While the first 30 minutes of the interview were confusing, I am satisfied that Moore was not trying to trick the accused as argued by Defence Counsel. When the accused made a request for counsel Moore did not ignore it and then start the questioning. He continued to try to make sure that he understood his rights. When Moore was ready to start the questioning and the accused requested access to legal counsel Moore immediately arranged for it to take place.

[50] After he had received legal advice and was in the presence of his grandmother, the accused signed the YCJA Waiver filed asexhibit 2 admitting to his participation in both robberies. [51] The most significant legal issue in this voir dire is whether the first two statements tainted the recorded statement. Defence Counselargues that after the accused exercised his right to counsel Moore went through some brief introductory questioning and thenimmediately referred the accused to the earlier conversation about the firearm being near a boat by the beach.

At line 969 Moorementioned a conversation he had with the accused concerned the co-accused E.F. while they were on the beach searching for thefirearm. Finally, at lines 1175-1182 when Moore wanted to drag out a reenactment of the robbery by the accused, he reminded him aboutthe inculpatory statements he made at the side of the road near the library that were involuntary and improperly solicited.

DefenceCounsel argues that by relying on these inadmissible statements Moore tainted the recorded interview. [52] As set out in I (LR) at paras 30 and 41, there are a number of factors that a court should consider when deciding whether aninadmissible statement taints an otherwise admissible later statement.

They include the length between statements, the discovery of newinformation after the completion of the first statement, the presence of the same officer, and the similarity between the twocircumstances. [53] The Crown argues that although it was the same officer taking both statements and they were half an hour apart they were verydifferent statements in very different circumstances. The second one took place when Moore was in full “SWAT” gear while the thirdone took place on video in the detachment in the presence of the accused’s grandmother.

The third statement took place after Moorespent half an hour making sure the accused understood his rights. Finally, in the third statement the accused admitted he lied aboutthrowing the rifle into the water when in fact it was in the boat and this fact was not mentioned in the second statement.

The Crownargues that the accused’s admission in the third statement that the second statement was a lie further supports the argument that the thirdstatement was not tainted. [54] In I (LR) Sopinka J. on behalf of the Supreme Court of Canada summarized the law on previous inadmissible statements tainting asubsequent one as follows: [30] Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntaryconfession involved a factual determination based on factors designed to ascertain the degree of connection between the two statements.These included the time span between the statements, advertence to the previous statement during questioning, the discovery ofadditional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations andother similarities between the two circumstances.

See Boudreau v. The King, (SCC), [1949] S.C.R. 262; Horvath v. TheQueen, (SCC), [1979] 2 S.C.R 376; and Hobbins v. The Queen, (SCC), [1982] 1 S.C.R. 553. No generalrule excluded subsequent statements on the ground that they were tainted irrespective of the degree of connection to the initial admissiblestatement. In this regard I adopt the language of Laskin C.J. in Hobbins, supra, at p. 558, when he states: There can be no hard and fast rule that merely because a prior statement is ruled inadmissible a second statement taken by the sameinterrogating officers must be equally vulnerable.

Factual considerations must govern, including similarity of circumstances and of policeconduct and the lapse of time between the obtaining of the two statements. [31] In applying these factors, a subsequent confession would be involuntary if either the tainting features which disqualified the firstconfession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making ofthe second statement.

In Cross on Evidence (7th ed. 1990), the learned author summarizes the common law on this point and contrasts itwith the provisions of the Police and Criminal Evidence Act 1984, 1984 (U.K.), c. 60, which was enacted in England and now governsthe admissibility of confessions. At page 619, he states: It had become well-established in the old law that a confession which, considered in isolation, appeared to satisfy the conditions forbeing voluntary, might nevertheless be excluded if preceded by an earlier involuntary confession.

It would be so excluded if either thefactors tainting the earlier confession continued to apply, or if the fact of having made such a confession could itself be regarded asprecipitating its successor. There is nothing in the new Act to displace so sensible an approach. [55] In applying these principles Sopinka J. stated:

[40] I have concluded that applying any of the above bases, the second statement must be excluded. Not only was there a close temporal relationship between the statements, but the second statement was a continuation of the first, and the first statement was a substantial factor leading to the making of the second. The statements were taken less than a day apart by the same officer. There is no evidence that the police in the interval between the two statements had gathered further evidence tending to incriminate E.T. to which E.T. might be asked to respond.

There was also continuous advertence by the police officer throughout the second statement to information given in the first statement. For example, after E.T. had said what he wished to say regarding the blood on his clothing, Constable Logan told him to think back to the plan and proceeded to ask him further details about it. In essence, E.T., having started a statement, asked to complete it and did. [41] All of the evidence in this case leads to the conclusion that the second statement was causally connected to the first.

In Constable Logan's own words, E.T. wished to add something to his statement of the day before. The fact that E.T. consulted with counsel between the making of the two statements and immediately prior to making the second does not obviate this conclusion. Both E.T. and Constable Logan were operating from the perspective that the facts were already largely on the table, and the relative lengths of the statements reflect this view — this first lasted some five hours, the second only half an hour.

Secondly, no one, including E.T.'s lawyer, would have known at that point that the first statement would be held to be inadmissible at trial as Constable Logan had advised E.T. according to the requirements of s. 56 as he understood them to be. While it is beyond this court to speculate as to what E.T.'s lawyer told him, I do not think we can infer that the lawyer would have advised E.T. that the first statement was inadmissible such that E.T. should refrain from corroborating incriminating statements already made.

Further, while we cannot determine with any assurance what E.T.'s motivation for making the second statement was, the largely exculpatory nature of the statement and the fact that E.T. told Constable Logan that he wanted to explain why he might have had blood on his pants suggests that E.T. wanted to give credence to his avowals in the first statement that he was merely a bystander to the murder. In the end, then, as the appellant put it, "[o]nce the first statement was given, the rationale for further restraint in self-incrimination was gone".

In short, in these circumstances, communication with counsel cannot be said to have the determinative effect that it would have had if it had taken place before the first statement. [42] In view of the finding that the existence of the first statement was a substantial factor in inducing the making of the second statement, the latter is inadmissible both on the basis of the common law test and the exclusionary language of s. 56.

Moreover, had it been necessary, I would have also excluded it under s. 24(2). [ 56 ] Applying this analysis by Sopinka J. to the case at bar, the statements were very close in time and were taken by the same officer. There is the same close temporal relationship between the first two statements and the third statement. Similarly the third statement is really a continuation of the first statement and a substantial factor leading to the making of the third statement. Further there is no evidence that the RCMP had gathered additional evidence tending to incriminate the accused.

Finally, when Moore finally got down to the real questioning he immediately made a reference to the second statement and the conversation with the accused at the beach about the disposal of the rifle. He followed it up with a reference to the inculpatory statement the accused gave in front of the library. [ 57 ] In the case at bar the first statement was short and the third one was long whereas in I (LR) it was the opposite. However, all the evidence suggests that the first statement was causally connected to third statement.

The Crown relied upon the fact that the accused had access to legal advice before he gave the third statement unlike the first statement to argue it was substantially different than the first one. However, Sopinka J rejected that argument and I am satisfied that his comments are equally applicable here. V. CONCLUSION [ 58 ] For these reasons I find that the third recorded statement was tainted by the inadmissible first and second statements and as a result must be excluded from the trial. Dated at the City of Iqaluit this 28 th day of October, 2019

___________________ Justice E. Johnson Nunavut Court of Justice