Supreme Court

CR 01559


IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES


BETWEEN:


HER MAJESTY THE QUEEN

- and -

LEO KEYOOKTA



REASONS FOR JUDGMENT



1  The accused is charged with the murder of three men at Broughton Island in July 1990.  His jury trial is scheduled to commence on October 25, 1993.  The Crown prosecutor seeks a ruling on the admissibility of various statements made by the accused to "persons in authority".  The accused seeks exclusion of these same statements by reason of infringement of his constitutional rights.  Herein the rulings on these applications and the reasons therefor.

2  Broughton Island is an Inuit community of 500 persons on the east coast of Baffin Island, just north of the Arctic Circle.  In mid-July 1990 three young men - Markoosie Nauyavik, Jacobie Nookiguak and Moosha Nookiguak - went missing.  The R.C.M.P. organized a search party, and at times the search party included representatives from the Emergency Measures office in Iqaluit, the Canadian Rangers, the Canadian Coast Guard, helicopters, and some divers.  Many people in the community (including the accused) were interviewed by the police, in an effort to obtain information as to the possible whereabouts, or recent movements, of the missing men, to no avail.  The men were never found.  The search was discontinued.  The R.C.M.P. concluded that the men had disappeared, or died, through misadventure.  Constable Day of the Broughton Island detachment concluded that the men had probably been ice-hopping out on the ice floes, and had fallen off and drowned.  The police did not suspect foul play.

3  The accused is a young Inuk who was born on August 6, 1971, and who has lived most of his life with his parents and siblings in Broughton Island.  He has a limited education in the formal sense, attending the school in Broughton Island only as far as grade 7.  He has had a troubled childhood and adolescence.  He began using drugs and solvents at an early age and he was in Youth Court on a regular basis for committing break and enters in his home community.  As a young offender, he has served custodial terms in facilities in Iqaluit, Yellowknife, Fort Smith, Pond Inlet and at an outpost camp.  Evidence on the voir dire satisfies me that he is impulsive and immature and that he exhibits behavioral problems.  His intellectual level is below average.  The expert witnesses agree that he suffers from a personality disorder.

4  The accused was charged on October 26, 1990.  He has been in custody since then.  Following a preliminary inquiry at Broughton Island and Iqaluit in April 1991, he was committed to stand trial on three counts of murder.  In January/February 1992 at Iqaluit a fitness hearing was held pursuant to the provisions of former s. 615 of the Criminal Code.  The jury found that he was unfit to stand trial.  In November 1992 he was transferred to the Penitanguishine Mental Health Centre in the province of Ontario.  In June 1993 another fitness hearing was held in Iqaluit pursuant to s. 672.26 of the Criminal Code.  The jury's verdict was that he is now fit to stand trial.

5  Crown counsel seeks a ruling with respect to twelve separate statements or utterances made by the accused to persons in authority.  Counsel concedes that in each instance the recipient of the statement was a "person in authority" as that term is defined in previous case law.  I will now describe in some detail the circumstances of each statement.

(1) Statement to prison psychologist Eldon Bossin:

On September 18, 1990 the accused was arrested in Broughton Island and charged with a number of break and enters.   He was remanded in custody and sent to the Baffin Correctional Centre in Iqaluit to await his trial.  It seems this was the first time that he was in custody as an adult.  His trial was scheduled for November 6, 1990.

Eldon Bossin is a psychologist with the Correctional Services of the Government of the Northwest Territories, based in Yellowknife.  He makes regular visits to the Baffin Correctional Centre in Iqaluit to see the inmates incarcerated there.
The Baffin Correctional Centre nurse testified that the accused requested to see the psychologist.  She accordingly put his name on a long list of inmates who were to see Mr. Bossin in early October.  Mr. Bossin was unable to complete all his interviews during that visit.  The nurse put the accused's name on a list for Mr. Bossin's next scheduled visit later in October.

Mr. Bossin met with the accused in an office at B.C.C. late in the afternoon of October 24, 1990.  The purpose of the meeting, from Mr. Bossin's perspective, was to determine the emotional health of the inmate and to ascertain whether he, as a psychologist, could be of any assistance to the inmate.  The meeting commenced with a general discussion, e.g. by Mr. Bossin asking the accused how he was getting along in the Centre, how he was getting along with other inmates, etc.  The discussion continued on the topic of the possibility of the accused taking education classes while at the Centre.  The accused then mentioned about having been a young offender, and the discussion then dealt with whether there had been any violence in the accused's history as a young offender.  The accused then stated that the R.C.M.P. in Broughton Island had been suspicious of him and Mr. Bossin asked the accused if there was any reason for the police to be suspicious of him.  The accused asked Mr. Bossin if he had not heard of the three men who disappeared in Broughton Island.  Shortly afterwards the accused told Mr. Bossin that he had killed the three men and provided some details.  Mr. Bossin was somewhat shocked by this revelation.  He asked the accused if he had told the police; the accused replied that he had not.  He asked the accused if he was now willing to talk to the police; the accused replied that he was.  Mr. Bossin decided he should call in the warden.

(2) Statement to prison warden Tom Hamilton:

Mr. Hamilton came into the office and Mr. Bossin stated either "Tom, Leo has something he'd like to say to you" or "Leo, is there anything you'd like to say to Mr. Hamilton?"  Mr. Hamilton noticed that the accused had his head down and was crying.  The accused then stated to Mr. Hamilton "I killed them".  Mr. Hamilton was surprised, but did not know of whom the accused spoke.  Mr. Bossin explained that the accused was talking about the men in Broughton Island.  Mr. Hamilton stated that he would have to call the R.C.M.P., and that the accused should contact a lawyer.  The accused confirmed that he wanted to contact a lawyer, in particular Neil Sharkey.  They called Mr. Sharkey's office and were told that a para-legal would be sent over to the correctional centre.  Subsequently, para-legal Tim Sangoya arrived and spoke with the accused in private and later still, lawyer Neil Sharkey arrived and spoke with the accused in private.

(3) Utterance heard by prison guard Dinos Tikivik:

After the lawyer left, and while waiting for the R.C.M.P. to interview the accused, the warden asked one of the guards Dinos Tikivik to stay in the office with the accused for a short time.  Mr. Tikivik testified that when he first entered the room where the accused was seated, the accused was not looking directly at Mr. Tikivik, and he was mumbling to himself, words that Mr. Tikivik could not understand.  The accused appeared nervous and agitated to Mr. Tikivik.  Mr. Tikivik then clearly heard the accused say, in the Inuktitut language,  "I killed him".

(4) Videotaped statement made to Cpl. Manders and Cst. Halverson on October 24, 1990:

When Cpl. Manders arrived at B.C.C. at approximately 4.20 p.m., he met with the warden in the warden's office for 20 to 25 minutes.  He then went to the other office where Mr. Bossin and the accused were.  He identified himself to the accused.  He told the accused that he was not able to speak to him until after he (the accused) had seen his lawyer.  He advised him to listen to his lawyer and that his lawyer would explain his rights.  He advised him that his lawyer would probably tell him not to say anything to the police.  He told the accused that if he still wished to talk to him (Cpl. Manders) after speaking with his lawyer, that would be for him (the accused) to decide.  He told him that anything he did say to the police would be used in court if he was charged.  Cpl. Manders did not solicit any response to these statements at that time but simply left the office to await the arrival of the accused's lawyer.
Mr. Sangoya arrived at 5.20 p.m. and spent 20-30 minutes with the accused.  Mr. Sangoya left B.C.C. at 5.50 and returned at 6.30 with Mr. Sharkey.  Mr. Sharkey spent one hour with the accused.  The Corporal waited.  He did not expect that the accused would speak to him after seeing his lawyer, but the Corporal wanted to be there and ready in the event that the accused agreed to give a statement.

Shortly after 7.30 p.m. Mr. Sharkey left B.C.C.  Upon leaving, he requested the police to contact para-legal Tim Sangoya whenever the accused was to be remanded.  The police set up a video camera in the warden's office for the purpose of conducting an interview with the accused.  At 8.15 p.m. Cpl. Manders went to the other office where the accused was and asked the accused to come with him to the warden's office.  The accused was, understandably, a bit tense and nervous.

The interview took place in the warden's office.  The only persons present were Cpl. Manders, Cst. Halverson and the accused.  The interview was conducted in the English language.  The accused acknowledged that he had spoken with his lawyer and that he understood what his lawyer had said to him.  He was asked if he still wanted to give a statement to the police, and he answered in the affirmative.  Cpl. Manders then read to him what is sometimes referred to as the "secondary police warning", and then tried to explain what it meant.  The accused was again reminded of his right to remain silent and that anything he did say could be used as evidence against him.  The accused indicated that he understood these things.  Upon viewing the videotape of this interview and in consideration of all of the evidence on the voir dire, I am satisfied that at that point the accused did indeed understand that he had the choice to speak to the police or not.

The accused then told the two police officers a story of his involvement in the deaths of his three friends in Broughton Island in July.  The interview lasted 50 minutes.  Cpl. Manders asked the accused many questions in attempting to obtain further details of the accused's story.  There were many pauses during the interview.  On two occasions, the accused stated "that's all I have".  I am satisfied that with those words the accused was simply saying to the police officer that he did not have any further information that he could provide to them.  However, later in the interview, on four separate occasions, the accused stated that he did not want to answer any further questions.  I am satisfied that he meant exactly what he said and that his meaning was clear.  Notwithstanding the accused's assertions, Cpl. Manders and Cst. Halverson continued to ask him questions, harmless questions of a general nature but also questions directed specifically to eliciting further details of the accused's confession.

After the interview concluded, the video camera was turned off, and Cpl. Manders then advised the accused he was being charged with the murder of the three men and again advised him of his right to counsel.  When asked if he understood his right to counsel, the accused indicated that he did.

(5) Utterance heard by prison guard Pauloosie Nuyalia:

The police decided to transfer the accused from the correctional centre to the R.C.M.P. cells at the Iqaluit detachment.  Prior to leaving the correctional centre, the accused was placed in the staff lounge and Mr. Nuyalia was asked to keep an eye on him for a short time.  In the lounge, while preparing coffee with his back to the accused, Mr. Nuyalia overheard the accused say, in Inuktitut, "why did I do it?".  Upon handing a cup of coffee to the accused, Mr. Nuyalia noted that the accused was nervous and shaking, and he asked the accused what he had done.  The accused answered "I have killed people" in Inuktitut.  Although the accused continued to talk, Mr. Nuyalia did not ask any more questions.

(6) Statement made to civilian guard Andrew Crout:

The police took the accused from B.C.C. to the R.C.M.P. detachment at approximately 9.45 p.m., and he was booked into cells for the evening.  Mr. Crout was the civilian guard on duty.  At one point in the evening he engaged the accused in conversation.  Mr. Crout asked the accused why he was there and when the accused replied that he had killed three people, Mr. Crout asked for further details.  Mr. Crout stated in his testimony that he asked these questions out of curiosity.  He candidly acknowledged that he had been previously aware of the R.C.M.P. policy which prohibited him from talking to prisoners about their charges but on this particular occasion he simply did not address his mind to that policy.

(7) Videotaped statement made to Cpl. Manders and Cst. Halverson on October 25, 1990 at Broughton Island:

At 10.15 a.m. on October 25 Cpl. Manders advised the accused that he wanted to take him to Broughton Island so the accused could show the police where the events had occurred.  The accused agreed.  At 10.35 Mr. Sharkey telephoned to speak to the accused.  The accused spoke to Mr. Sharkey on the telephone, in private.  After seven or eight minutes, the accused indicated that Mr. Sharkey wanted to speak to Cpl. Manders on the telephone.  Cpl. Manders was advised by Mr. Sharkey that the accused did not want to speak about this matter to the police any more and did not want to go to Broughton Island.  With Mr. Sharkey still on the phone, Cpl. Manders asked the accused if he wanted to go to Broughton Island and the accused answered in the affirmative.  Cpl. Manders then left the accused alone in the office again with Mr. Sharkey on the telephone.  When the accused shortly thereafter exited the office Cpl. Manders asked the accused if he agreed to go to Broughton Island for a re-enactment, and the accused answered in the affirmative.  The corporal asked if the accused understood that he did not have to go and did not have to show the police anything and the accused answered in the affirmative.  The corporal asked if the accused understood that it could be used as evidence against him and the accused answered in the affirmative.  This latter exchange was reduced to writing by the corporal and signed by the accused.

At 11.40 a.m. Cpl. Manders, Cst. Halverson and the accused drove to the R.C.M.P. hangar at the Iqaluit airport for the purpose of taking the police plane to Broughton Island, via Pangnirtung.  At the hangar Cpl. Manders received a message that he was to telephone lawyer Valdis Foldats.  After a conversation with Mr. Foldats, Cpl. Manders, at Mr. Foldats' request, put the accused on the telephone and left the accused alone in the office.  After 25 minutes, the accused came out and asked the corporal to speak to Mr. Foldats.  While the corporal was speaking to Mr. Foldats in the accused's presence, the accused became angry and agitated and was bad-mouthing lawyers in general.  Cpl. Manders was then told by Mr. Foldats that he had advised the accused not to say anything further to the police and not to go to Broughton Island.  Mr. Foldats also told the corporal that he (Mr. Foldats) did not think that the accused really knew what was going on.  Mr. Foldats asked the corporal to hand the telephone back to the accused and when the corporal did so, the accused hung up the telephone.

It was during this time in the hangar office that Cpl. Manders noticed that the accused had a small piece of yellow note paper with something written on it.  Several hours later, after the re-enactment in Broughton Island, Cpl. Manders discovered among some garbage that the accused had discarded while on board the aircraft, a small piece of yellow note paper.  I draw the inference that it was the same piece of paper that the accused had in his hand in the hangar office.  On the paper was written the words "I do not want to talk to you about the charge and I want my lawyer".

After the accused hung up the telephone on Mr. Foldats, Cpl. Manders again asked the accused if he understood that he did not have to go to Broughton Island, that if he did go and show the police anything that it could be used as evidence and the accused answered in the affirmative.  He was asked if he wanted to go to Broughton Island and show them what happened and he answered in the affirmative.  The accused stated that he was afraid of the R.C.M.P. members at the Broughton Island detachment and did not want to talk to those members in particular.  He said he only wanted to talk to "you guys".  This latter exchange was reduced to writing by the corporal and read and signed by the accused.

Upon arrival in Broughton Island, Cpl. Manders, Cst. Halverson (with video camera) and the accused drove in a police truck to the area of the town dumpsite.  Once there Cpl. Manders asked questions of the accused about the incident he had told about the previous evening, and asked him to point out the specific location where these events occurred.  At the outset of this interview/demonstration the accused again acknowledged that he understood he was not required to do this and that it could be used as evidence gainst him.  Cst. Halverson videotaped the interview/demonstration which lasted 25 minutes.

It appeared to both Cpl. Manders and Cst. Halverson (and to myself in viewing the video) that the accused was more relaxed and more at ease during this interview than during the first interview at B.C.C. the previous evening.  During a pause in the early part of the interview the accused was clowning around in front of the camera and acting in a silly manner.

(8) Statement made to prison guard Jamesie Nuyalia:

On October 26, 1990 the accused was taken back to B.C.C., and placed in isolation.  That evening he was allowed out of his cell for a cigarette break, and in the course of this break he spoke in Inuktitut to an older Inuk, Jamesie Nuyalia, one of the prison guards.  In the conversation he made references to his involvement with the death of the three men.  The references to the men's deaths were not made by the accused as a result of any particular questions asked by Mr. Nuyalia.  At the time he was not cautioned about his right to remain silent.

(9) Statement made to prison guard Kenneth Thompson:

On October 30, 1990 during a similar cigarette break the accused had a general conversation with prison guard Kenneth Thompson in English, during the course of which he stated "they don't have any evidence, but I really did do it".  This utterance was not made by the accused as a result of any particular question asked by Mr. Thompson.  On this occasion the accused was not cautioned about his right to remain silent.

(10) Statement made to prison guard Grant Chapman:

Again, during a similar cigarette break on October 29, 1990 the accused made another utterance to prison guard Grant Chapman on the subject-matter of his charges, without any prompting or questioning from Mr. Chapman.  And again, the accused had not been reminded by anyone that he had the right to remain silent.

(11) Statement made to prison guard Dale Wouters:

In November 1990 the accused was transferred from B.C.C. to the Yellowknife Correctional Centre.  Later that month on an occasion when he was on an exercise period in the gymnasium he had a conversation with prison guard Dale Wouters.  The accused asked Mr. Wouters if he (Wouters) knew why the accused was at the correctional centre.  Mr. Wouters replied no.  The accused then stated that he was there because he had murdered three people.  Mr. Wouters then asked who he had killed, and a number of other questions as to the details of the killing.  At no time through this question and answer period was the accused reminded that he was not obliged to answer the questions.

(12) Statement taken by Cst. Philip on January 23, 1992:

In January 1992 the accused was back in Iqaluit for the first fitness hearing and was being held in Baffin Correctional Centre.  Apparently one of the accused's relatives, Pauloosie Keyookta, advised the police that the accused had some additional information to give to them regarding the murders.  Cst. Philip (an Inuk) and Cpl. Power went to B.C.C. at 8.00 p.m. on the evening of January 23, 1992 for the purpose of interviewing the accused.  They brought a video camera.  At B.C.C. one of the prison guards, Tommy Inookie, went to get the accused from his cell.  The accused told Mr. Inookie that he was afraid of the police and didn't want to speak to the police.  Mr. Inookie then went and told the police that the accused didn't want to speak to them.  The warden Mr. Hamilton told Mr. Inookie to bring the accused out to the interview room for the police.  Mr. Inookie told Mr. Hamilton that the accused didn't want to speak to the police.  Mr. Hamilton then put his arm around the accused and said something to the effect "everything's going to be all right".  Mr. Inookie testified that the accused appeared scared at the time.

When the accused was taken to the interview room he objected to the use of the video camera and to the presence of Cpl. Power (a non-Inuk).  Cpl. Power left the room and the video camera was not used.  The accused wanted to talk to his lawyer and he was taken from the room and allowed to talk to his lawyer on the telephone.  He was returned to the interview room and then Cst. Philip conducted an interview with him, in Inuktitut.  Cst. Philip advised him of his right to counsel and his right to remain silent.  Cst. Philip then asked him a series of questions and the accused responded to these questions.  Cst. Philip wrote out the series of questions and answers in English.  The accused's relative Pauloosie Keyookta was present during the interview.

6  It has long been trite law that a confession made to the authorities by an accused person, in order to be admissible evidence against him at his trial, must be shown by the prosecutor to have been made freely and voluntarily, in the sense that it must not be extracted from him by any sort of threat, or by any promise, or by any improper influence.  Ibraham vs. The King [1914] A.C. 599 (P.C.).

7  In addition, the statement must be shown to be the utterance of an operating mind.  Ward vs. The Queen (1979) 44 C.C.C. (2d) 498 (S.C.C.).

8  Further, since R v. Hebert (1990) 57 C.C.C. (3d) 1 (S.C.C.) the admissibility of a confession to the authorities must also be determined by whether the accused person made an informed choice to speak to the authorities or not.  In that case the Supreme Court of Canada stated that the right to remain silent is a constitutional right protected by s.7 of the Charter of Rights and Freedoms - "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".   An accused person's right to remain silent, and his freedom to choose whether to speak to the authorities or not, are principles of fundamental justice which must be respected by the state.

9  The Court in Hebert also held that a trial judge has a discretion to exclude evidence obtained from an accused person in a manner which is unfair to the accused and/or which would bring the integrity of the judicial system into disrepute (per McLachlin J at p. 37).

10  In the present case the evidence on the voir dire and the submissions of counsel raise both Charter issues and a consideration of the common law confession rule (as now described in Hebert).

11  Defence counsel submits that the inculpatory statement made to Mr. Bossin on October 24, 1990 must be viewed in the context of the various prior contacts that the accused had had with the police and others in July 1990 and also in the context of his limited intellect and personality disorder.  He suggests that there may have been inducements and influences on the mind of the accused leading to the confession to Mr. Bossin.
12  Counsel points to the fact that the accused was interviewed on a number of occasions in July 1990 by different police officers.  On each occasion the accused denied any knowledge as to the disappearance of the men.  One of the officers, Sam Nuqingaq (an Inuk) concluded his interview by telling the accused that if he "knew anything more about the three missing men it would be good if he told the police".  Another, Cpl. Hanna, asked the accused at one point if he would be willing to take a lie detector test.  Another Inuit officer, Simeonie Keenainak, upon interviewing the accused, noticed that the accused did not seem to be his usual self and it seemed to Cst. Keenainak that something was bothering or worrying the accused.  Cst. Keenainak told the accused that if something was bothering  him, that if he was having problems, he should find a friend to talk to.  In doing so, Cst. Keenainak made no specific reference to the three missing men.  There is also evidence that in July 1990 the accused's mother and sister were asking him if he was involved with the disappearance of the three men.

13  Counsel submits that all of these pressures on this particular accused may well have affected his mind (already of limited capacity) in a way which led him to say things involuntarily and not voluntarily.  He submits further, relying on R v. Bird (1989) 50 C.C.C. (3d) 89 (Man. C.A.) and R v. Ewart (1991) 68 C.C.C. (3d) 207 (B.C.C.A.), that the statements of officers Nuqingaq and Keenainak could have amounted to "inducements" in the mind of the accused, leading him to make a confession.

14  Upon a consideration of the evidence I find that there is no merit in the foregoing submission.  There is simply no evidence that these statements/questions of the police and family members had such an effect on the mind of the accused in October 1990.  Defence witness Dr. Long acknowledged that his own opinion in that regard was speculative at best.  The accused did tell Mr. Bossin that the police in Broughton Island were suspicious of him but this is not evidence indicating that the police's suspicions led him to say what he did.  The accused did say in his testimony on the voir dire that while he was in remand in September 1990 he was thinking of the fact that people were blaming him but he did not, in his evidence, link this in any way to the spontaneous utterance he made to Mr. Bossin on October 24, 1990.  When asked explicitly on the voir dire why he had said those things (which he says are untrue) to Mr. Bossin, he replied "I don't know".

15  Any encouragement by officer Nuqingaq for the accused to cooperate with the police, and any advice by officer Keenainak for the accused to seek counselling, were not inducements by the police to the accused to confess to a crime in the sense found in Bird and Ewert.  In any event, the statement made to Mr. Bossin on October 24 was too remote in time, place and circumstances (i.e. the identity of the listener/recipient) as to be tainted by the Nuqingaq and Keenainak interviews.

16  I am satisfied on the evidence that on October 24 the accused was participating in a discussion with psychologist Eldon Bossin of his own free will and without any previous intention by either party to discuss the topic of the three missing men.  The utterance by the accused, in the middle of that conversation, was made by him spontaneously and not as a result of any encouragement, inducement, influence or pressure from Mr. Bossin or anyone else.  The evidence on the voir dire, in particular the testimony of Eldon Bossin, Tom Hamilton and the accused himself on the video (Exhibit D) satisfies me that the accused's spontaneous confession to Mr. Bossin was "self-inspired" (see R v. Schur, B.C.C.A., April 29, 1993, unreported).

17  And I am also satisfied beyond any doubt that the accused's utterance at that time was the utterance of an operating mind.  The accused at the time had a limited intellect and was at that time probably suffering from a mental condition later diagnosed as a "borderline personality disorder".  However, he was not "so devoid of rationality and understanding or so replete with psychotic illusions, that his uttered words could not fairly be said to be his statements at all".  Nagotcha vs. The Queen (1980) 51 C.C.C. (2d) 353 (S.C.C.).  The accused may not have been in optimal mental condition, but he certainly had an operating mind on October 24, 1990.  This is evident when one views the video taped statement (Exhibit D).  He was clearly capable of making a statement upon which the trier of fact is entitled to place some reliance.

18  I find that the disclosure to Mr. Bossin was made by the accused freely and voluntarily and not as a result of anything said to him on an earlier occasion by a person in authority or anyone else.

19  Mr. Bossin indicated in his testimony that once he realized that the accused's utterances concerned a very serious matter, he decided that he should call in the warden.  At that time Mr. Bossin was the recipient of these utterances in his capacity as a person in authority, and he was about to bring onto the scene a more senior "person in authority".  In my view from that moment on the accused's constitutional rights come into play.  Although he is being detained in custody at a correctional facility for an unrelated reason, this young and immature man has now disclosed to the state authorities (in the person of Mr. Bossin) his involvement in a very serious criminal matter, with possible dire consequences for his liberty.  His liberty is now placed in jeopardy by the state.  The principles of fundamental justice must now govern how the state authorities deal with him.

20  When the warden is brought into the interview room, the accused is immediately directed or encouraged to repeat his confession to the warden, and he does so.  He is not told that he is not obliged to repeat anything to the warden.  As held in Hebert the accused at that moment had the freedom to choose - the freedom to speak to the warden, on the one hand, and the freedom to refuse to say anything on the other hand.  In the context of a prison environment, a 19 year old youth in a small interview room with two senior corrections officials, and the absence of any caution, it can hardly be said that he made an informed choice to speak to the warden or not.

21  The accused was subsequently advised that he should contact a lawyer and he confirmed that he indeed wanted to see lawyer Neil Sharkey.  Thereafter he consulted in private with a paralegal and with his lawyer.  I find that he was afforded his right to counsel and that he in fact exercised that right.  There is no evidence as to what was discussed between he and his lawyer but presumably he was advised of his right to remain silent.  In any event, Cpl. Manders advised him of this right both before and after he consulted with his lawyer.  Further, the corporal cautioned him that anything he did say to the police could be used as evidence against him in court.

22  On the voir dire the accused stated that when he was with officers Manders and Halverson on October 24 he was afraid to tell them that he was afraid of talking to them.  However, I am satisfied upon a consideration of all of the evidence (including the video) that the accused did not make any such fear known to, and did not exhibit any such fear to, the police at the time.

23  The evidence satisfies me that the accused made the statements he did to officers Manders and Halverson on the evening of October 24 freely and voluntarily (subject to what I shall say shortly about the accused later refusing to answer further questions).

24  There was noting improper in the police conduct of questioning the accused in the absence of his lawyer after he had had an opportunity to consult his lawyer.  Hebert, per McLachlin J at p. 41.  And as I have stated earlier in these reasons, I am satisfied that the accused did, at the commencement of the video taped statement, fully understand that he had the choice to speak to the police or not.  This belief is fortified by the fact that the accused, part way through the interview, indicated to the police that he did not want to answer any more questions.  That confirms to me that he knew he could answer the questions or refuse to answer the questions.

25  Although the accused stated clearly that he did not want to answer any further questions, the two police officers continued with their interrogation.  In doing so, as state authorities, they were failing to respect his right to remain silent and his freedom to choose whether to answer or not.  In doing so they breached his constitutional rights under s.7 and in a flagrant way, given his expressed decision not to answer further questions.  He was entitled to change his mind at any point in the interview.  He made an informed choice and they ignored it.  In these circumstances the criminal justice system would be brought into disrepute if the state authorities are then permitted to use any subsequent answers in that interview as evidence against him at his trial.

26  In the course of the videotaped interview on the evening of October 24, then, it is clear that the accused reversed his decision about giving a statement to police.  In the course of the following day, October 25, it is equally clear that the accused was ignoring the advice of his lawyers.

27  Although there was no direct evidence on the voir dire of any lawyer-client communications, there are clear inferences that both Mr. Sharkey and Mr. Foldats were advising the accused not to speak further to the police, and not to agree to go to Broughton Island for a re-enactment.  Notwithstanding that advice, the accused agreed to the police requests.  An accused person is entitled to ignore the advice of counsel.  After Mr. Sharkey's intervention, and before proceeding with the Broughton Island trip, Cpl. Manders again gave the police caution and confirmed that the accused understood it.  After Mr. Foldats' intervention and before continuing with the trip, the corporal once again cautioned the accused and the accused confirmed his agreement subject only to the proviso that he would not speak with the police officers resident in Broughton Island.  I am satisfied that the accused was making an informed choice to speak to Cpl. Manders and Cst. Halverson, and he did so freely and voluntarily.  This finding is strengthened by a viewing of the videotape of the interview on site at Broughton Island.  It shows clearly that the accused was alert and was cooperative with the police.  At the time he had been afforded his right to counsel and he in fact exercised that right.  He also had been repeatedly reminded of his right to remain silent and he made an informed choice to cooperate with the police.  I note that on this occasion when the accused stated that he did not want to answer any more questions, the officer immediately concluded the interview.

28  Thus far, then, I find that the following evidence is admissible evidence at the accused's trial:  (a) the spontaneous utterance to Eldon Bossin; (b) the videotaped statement of October 24 (up to the point where the accused stated he did not want to answer questions); and (c) the videotaped statement of October 25.  I find that the Crown have shown beyond a reasonable doubt that each of these statements was made by the accused freely and voluntarily and with an operating mind, and I am satisfied beyond a reasonable doubt that the accused made the two statements to the police officers with the knowledge that he had the choice to speak to them or not.

29  I turn now to the various statements and utterances made to or overheard by prison guards.  Three of the guards - Pauloosie Nuyalia, Andrew Crout and Dale Wouters -elicited information from the accused by asking questions of him.  Each of them was a person in authority at the time the questions were asked.  The accused had a fundamental right to choose not to answer their questions.  Was he aware of that?  Did he make an informed choice to answer their questions?  At no time was he told, or reminded, by any of these guards that he did not have to answer their questions.  The guards may have been acting innocently and in good faith at the time and may not have been consciously collecting evidence; however, today the state authorities want to use his answers against him at his trial.

30  There is no rigid rule which requires that an accused person be reminded of his right to remain silent every time a person in authority speaks to him.  The necessity and frequency of such a caution will depend on the circumstances of the particular situation.  Boudreau vs. The King (1949) 94 C.C.C. 1 (S.C.C.).  Here, in the present case, I am concerned that this accused Leo Keyookta would indeed need a reminder in order to make an informed choice.  The cautions that were repeatedly given to him on October 24 and  October 25 were made in the context of having the right to refuse to speak to the police (not guards per se).  I am not satisfied that he would necessarily understand that caution to include questions asked by guards.  Because of his sub-normal intellect, I find that in these circumstances it was necessary for any person in authority to caution him at the beginning of any new interview/discussion if the state wished (or later wishes) to present his answers as evidence against him at his trial.  Fairness, and justice, requires it.

31  The statements of the accused arising out of these informal question-and-answer sessions with guards Pauloosie Nuyalik, Andrew Crout and Dale Wouters are inadmissible, therefore, for the reason that I am not satisfied that the accused made an informed choice whether to answer the questions or not.

32  Other statements/utterances overheard by persons in authority (prison guards), and repeated in their testimony on the voir dire, were not made by the accused in response to any question or prompting from any person in authority but were merely stated by him on his own initiative.  Notwithstanding that these utterances were made without prompting, I have some difficulty in rendering them admissible at the instance of the prosecutorial authorities.  This young man of limited intellect with a mental disorder is being detained in cells, in isolation, awaiting trial on three murder charges.  He is overheard by one guard muttering to himself incomprehensibly.  He engages other guards in conversation during a short cigarette break or exercise period by telling them why he is there in custody.  Can it be said that he knows that they will make note of his every word and repeat them at his trial?  Is he consciously deciding to speak to the authorities at that moment?  Is he carefully and deliberately making an admission?  I think not.  Not this accused.  When the state confines an accused suspect in prison, the state necessarily controls the group of persons from among which the prisoner might select someone in whom to confide on the very subject matter which is weighing most heavily on the prisoner's mind, i.e., the pending charges against him.  In my view to allow the prosecution to adduce self-incriminating evidence gathered in this fashion from this particular accused would bring the justice system into disrepute.  In my view there is a huge difference between gathering evidence from this prisoner (Leo Keyookta) in this fashion and gathering evidence by bringing the same prisoner into an interview room, affording him his right to counsel, and advising him of his right to remain silent and then eliciting the same information with his conscious agreement.  I exercise the discretion of presiding judge (the existence of which is confirmed by Hebert) to exclude this evidence.

33  Finally, there is the warned statement taken by Cst. Lew Philip at the Baffin Correctional Centre on January 23, 1992.  I accept the evidence of prison guard Tommy Inookie as to the circumstances preceding this statement.  The police and prison authorities ignored the accused's expressed refusal to speak to the police.  This constituted a breach of his right to remain silent.  In addition, the warden's comforting assertion to the accused that "everything's going to be all right" was an apparent inducement for the accused to give a statement.  The ensuing statement was thus not "free in volition from the compulsions or inducements of authority".  Boudreau v. The King (1949) 94 C.C.C. 1 (S.C.C.), R v. Fitton (1956) 116 C.C.C. 1 (S.C.C.).  I remind myself that a prisoner can be more vulnerable to a warden's inducement, an inducement which may appear trivial to others who are not in the same predicament.  In these circumstances, I am not satisfied that the Crown have established the admissibility of this statement.

34  With the foregoing rulings it remains only to formally consider the accused's application under s.24(2) of the Charter to exclude the evidence of his statements to Mr. Bossin and his two videotaped statements to officers Manders and Halverson.  His counsel argues that the accused's s.7 rights (right to remain silent and the freedom to choose whether to speak to the authorities) were breached at the time of the statement to Mr. Bossin.  Further, it is argued that these s.7 rights and also his s.10(b) rights (to retain and instruct counsel without delay and to be informed of that right) were breached by the police at the time of the two videotaped statements.

35  As indicated earlier in these reasons, I find that the accused's constitutional rights, under s.7 or otherwise, did not arise until after his disclosure to Mr. Bossin and Mr. Bossin realized the seriousness of the disclosure.  For this reason there is simply no basis upon which to assert that the authorities denied or infringed the accused's constitutional rights or freedoms at that time, and thus no foundation for a s.24(2) application.

36  With respect to the Charter arguments urging exclusion of the two videotaped statements, I have already made findings sufficient to dispose of this application.  There was no denial of the accused's constitutional rights or freedoms at the time of either statement (save as to the last portion of the October 24 statement).  Defence counsel submits that the accused's "waiver" of his right to counsel was not a true waiver, citing R v. Clarkson, (1986) 25 C.C.C. (3d) 207 (S.C.C.), Evans vs. The Queen (1991) 63 C.C.C. (3d) 289 (S.C.C.).  With respect, the notion of "waiver" does not come into play here.  The accused did not waive his right to counsel; he in fact exercised it.  He consulted extensively with his lawyers on October 24 and 25.  He was given ample opportunity by the police authorities "to retain and instruct counsel".  Further, as stated earlier, the accused's right to remain silent, and freedom to choose whether to speak or not, were not infringed or denied by the police officers (save as to the last portion of the October 24 statement).  For these reasons I find no merit in the s.24(2) application.

37  In summary, I make the following rulings with respect to each of the twelve statements enumerated at the commencement of these reasons:

(1) admissible
 (2) inadmissible
 (3) inadmissible
(4) admissible - up to the point where the accused stated he did not want to answer further questions (line 14, page 141 of the Exhibit F).
 (5) inadmissible
 (6) inadmissible
 (7) admissible
 (8) inadmissible
 (9) inadmissible
 (10) inadmissible
 (11) inadmissible
(12) inadmissible

38  Before concluding these reasons, I should respond to the submissions of defence counsel as to the alleged prejudice to the accused of any "editing" of statement (4) above.  It is submitted that if any portion of this statement is ruled inadmissible, then the entire statement should be excluded.  It is argued that allowing the jury to see and hear only a portion of the statement is unfair to the accused, as the jury would fail to see any internal inconsistencies within the statement.

39  Firstly, upon a careful review of the two portions of the statement (i.e., before and after line 14, pg. 141, Ex. F) I do not see any significant inconsistencies to give support to this theory and in any event I do not agree that the solution to any such perceived difficulty is to exclude what is otherwise admissible evidence (i.e., the first portion of the statement).  Also, I take the view that the Court's ruling on the inadmissibility of the last portion of the statement does not preclude defence counsel, on cross-examination of the police officer who took the statement, eliciting from the witness the fact that the accused gave, at another moment during the same interview, an answer at variance with an earlier answer of some significance.





   J. E. Richard
       J.S.C.