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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: R. v. Angootealuk, 2017 NUCJ 17


Date: 20170825
Docket: 08-15-567
Registry: Iqaluit

Crown: Her Majesty the Queen


-and-

Accused: Jackie David (JD) Angootealuk

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): Roman Dzioba


Counsel (Accused): Sara Siebert

Location Heard: Iqaluit, Nunavut


Date Heard: August 25, 2017
Matters: Common law confessions rule; right to silence

REASONS FOR JUDGMENT

(NOTE: This document has been edited for publication)


2

I. INTRODUCTION

[1] The accused, Jackie David (JD) Angootealuk, is charged with


indictable sexual assault. The incident happened in Iqaluit on
November 23, 2015. He was arrested in Iqaluit on November 25,
2015. Later that same evening, he gave a cautioned statement to the
police. That statement is the subject of a voluntariness voir dire at
common-law. A voir dire is a trial within a trial we use to decide
questions dealing with contested evidence. This voir dire is about
whether the statement made by the accused to the police may be
used by the Crown as evidence at the accuseds trial.

[2] In Canada, a person arrested by the police has the right to remain
silent. This constitutional right is a cornerstone of our free and
democratic society. The right to silence is protected by section 7 of
the Canadian Charter of Rights and Freedoms. 1 This right to silence
protects each one of us.

[3] The Defence lawyer, Ms. Sara Siebert, has conceded there is no
evidence of state oppression, inducements, promises or threats made
by the police to get the accused to speak. Defence Counsel also
conceded that the police did not engage in any trickery. Further, the
Defence also concedes that the accused had an operating mind at the
time he provided the statement. The only triable issue, or question I
must decide, is whether the accused understood he had the right to
remain silent. I thank Ms. Siebert for focusing on the only real issue in
this case.

[4] The voir dire was held on August 18, 2017. The Crown called Cpl.
James MacEachern and Cst. Andrew Kerstens who both testified by
videoconference. The accused decided not to call evidence. These
are my reasons for decision.

II. BACKGROUND

[5] The complainant went to the Iqaluit Royal Canadian Mounted Police
detachment on November 23, 2015 to complain that she may have
been 2 sexually assaulted by the accused. Cpl. MacEachern testified
in direct examination he went to arrest the accused around 7:40 p.m.
1
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, s 7.
2
Voir dire transcript, at 4, line 23.
3

two days later. Cpl. MacEachern later said he could not recall
whether Cst. Bjorklund was with him at the time of arrest. He could
not remember if he handcuffed the accused. Nor could he remember
what the accused was wearing at the time he was arrested.

[6] Cpl. MacEachern testified he told the accused he was there to arrest
him and the accused indicated he understood. 3 Cpl. MacEachern
testified he then told the accused that he did not have to say anything
to me but anything he did say could be used as evidence. 4 This
happened inside the residence. Cpl. MacEachern did not tell the
Court if the accused said anything in reply. Cpl. MacEachern testified
that as they walked to the police vehicle, he told the accused he had
the right to speak to a lawyer, and that he could speak to duty counsel
for free. Again, Cpl. MacEachern did not say if the accused said
anything in reply. I will return to this early part of their interaction in a
moment.

[7] Cpl. MacEachern testified he then placed the accused in the rear of
the police vehicle and told the accused he was under arrest for sexual
assault. He read the accused his rights from what he called a
prepared card. Cpl. MacEachern did not have the card with him, so
the Court cannot be sure what, in fact, he said to the accused. Cpl.
MacEachern did not say whether the accused responded in any way
to what had been said to him. In fact, Cpl. MacEacherns only
comment on how the accused appeared or responded during these
critical interactions was thats all I can say, he was co-operative. 5

[8] Cpl. MacEachern testified he took the accused to the detachment. At


7:55 p.m., the accused spoke to Legal Aid duty counsel by telephone.
The telephone consult lasted 17 minutes. The only specific detail
provided by Cpl. MacEachern about his interaction with the accused
came at this point. Cpl. MacEachern testified he asked the accused if
he was satisfied with the legal advice and if he understood it. The
accused is said to have replied yes, he did. Cpl. MacEachern said he
recorded these replies in his notebook. He said he could not
remember having any other interactions that day with the accused.

[9] At the start of the cross-examination, Cpl. MacEachern admitted he


told the prosecutor just the day before that Cst. Bjorklund had been
with him at the arrest. However, he said during the voir dire I am not
3
Ibid at 8, line 15.
4
Ibid at 8, line 17.
5
Ibid at 9, line 24.
4

100 per cent certain. 6 The recording and transcript of the


proceedings will show that Cpl. MacEachern was argumentative and
defensive throughout the rest of the cross-examination.

[10] Cpl. MacEachern stated that the police have a duty to disclose
everything that is relevant to the investigation. 7 He was asked
whether he had had any further interactions with the accused. He
replied my testimony was that I didnt. My testimony is that I didnt
recall any. From what I understand there were but I dont recall
those. 8 He then agreed that the detachments cell logbook recorded
several interactions he had with the accused. However, he had no
memory of them.

[11] Cpl. MacEachern was then challenged by Defence Counsel for not
recording in his notebook any responses made by the accused at the
time of the arrest. The witness acknowledged he did not write down
the replies. He said: I dont think they are relevant. 9 For the first
time, it then was revealed that Cpl. MacEachern had, in fact, made
some notes of what the accused said to him inside the police vehicle.
He had recorded the following exchange: Q1: I understand. Q2: Yes.
PW (police warning) I understand. 10 He did not explain what Q1,
Q2 and PW meant. As I noted earlier, Cpl. MacEachern made no
reference to these replies in his direct evidence.

[12] Cpl. MacEachern was asked if he had any other notes from his part of
the investigation. He said he did not. When asked if he monitored
the interview remotely, Cpl. MacEachern replied: I dont believe so,
no. 11 To the next question, whether he remembered being asked for
help by Cst. Kerstens during the interview, he replied that I dont
recall. 12

[13] Cst. Kerstens told the Court he took a cautioned and video-recorded
statement from the accused later that evening. The interview started
at 9:45 p.m. The interview lasted two hours and 18 minutes. He
stated Cpl. MacEachern monitored the interview. He also testified he
stopped the interview several times to ask Cpl. MacEachern for help.

6
Ibid at 15, line 6.
7
Ibid at 16, line 24.
8
Ibid at 18, line 11.
9
Ibid at 22, line 20.
10
Ibid at 21, line 18.
11
Ibid at 23, line 6.
12
Ibid at 23, line 10.
5

I accept his evidence on all these points.

[14] Cst. Kerstens testified that he was asked to conduct the interview. He
said he had never dealt with the accused before. He did not ask for
an interpreter based on his conversation with the accused, although
he acknowledged the accused had difficulty with his grasp of
concepts. 13 In cross-examination, Cst. Kerstens admitted he did not
know how long the accused had been in cells before the interview.
He also testified he had not reviewed the cell log or spoken to the cell
guard. He believed I would have reviewed the prisoner report
before the interview, but he could not recall having done so. 14 Cst.
Kerstens did not appear to be an experienced interrogator.

[15] The prosecutor played the video statement in court. The following
early questions and answers found in the Crown-prepared transcript
are significant. References to Q record Cst. Kerstens questions.
A refers to the answers given by the accused.

Q. Good okay, so JD were here to talk about something that happened


okay um, before I do that I want to make sure you understand what
youre here for okay, um, so do you understand what youre arrested
for?

A. Um, Im not I dont understand (inaudible).

Q. You dont understand okay um did the officer tell you why youre
arrested?

A. He just said youre sexually assault for I dont know what.

Q. For sexual assault?

A. Whatever I dont know.

Q. Okay do you understand what sexual assault means?

A. No actually.

Q. No?

A. No.

13
Judges trial notes.
14
Ibid.
6

Q. Okay um sexual assault means that its alleged that you assaulted
somebody did something which means physical ah ah physical thing
okay it could be touch it could be a lot of different things but in sexual
manner.

A. Mmm.

Q. Okay?

A. Mmm.

Q. You understand that?

A. Yes.

Q. Did that help you understand?

A. Yes. 15

[16] This exchange was followed very shortly after by the following:

Q. Okay and with that Im going to let you know okay um they have
right to talk to the lawyer did you do that today?

A. Yes I did.

Q. Yeah okay and you remember the name of the lawyer you spoke to?

A. He didnt give me the name.

Q. He didnt give you the name okay did he give you advice?

A. He just got me advice.

Q. He did give you advice?

A. Yes I did.

Q. Yeah?

A. Yes.

Q. Okay thats just what I want to make sure okay and again I dont
need to know that advice was but I want to make sure that you have

15
Statement transcript at 2, line 63.
7

the opportunity to speak the lawyer so like I said your rights are as
important to you as theyre to me so I want to make sure that you got
those rights, okay um so JD the last thing I want to talk about before I
talk about why were here okay, is youre here to speak with me okay
you and I are going to have conversation during the conversation you
dont have to say anything to me, okay and but its important that you
understand anything you say may be used as evidence in court, you
understand that?

A. Yes, I understand.

Q. Yeah okay.

A. I dont want to make a statement though.

Q. Yeah.

A. (inaudible low voice). 16

III. ISSUES

[17] There are two issues, or questions, I must decide:

1. Has the Crown proven the accused understood he had the right to
remain silent while he was being interrogated by the police?

2. Is the statement admissible as evidence against the accused at his


trial?

IV. THE LAW

[18] In our criminal justice system, the Crown cannot as of right lead
evidence that an accused person made a statement to the police. To
do so, the Crown must first prove several things. Among other things,
the Crown must prove the accused gave the statement freely and
voluntarily, and that the accused had an operating mind. The
standard of proof the Crown must meet is extremely high. The Crown
must prove the voluntariness of the statement beyond a reasonable
doubt. This so-called confessions rule has been the law for a very

16
Ibid at 4, line 132.
8

long time. The leading cases from the Supreme Court of Canada are
R v Oickle and R v Singh. 17

[19] In a statement voir dire, a trial judge must look carefully at all the
relevant circumstances and events which led to the statement. I
referred in paragraph three to several factors a trial judge must
consider. The inquiry considers the presence of any oppressive
conduct by the police, or inducements, promises or threats which may
have overborne the will of the accused to remain silent. In this case,
the only issue in dispute is whether the accused understood from his
dealings with police that he had the right to remain silent.

[20] It is a very serious thing for a police officer to arrest someone. The
arrested person immediately loses his freedom. There is a huge
power imbalance between the parties. It is also a very stressful
moment for most people to handle. For these reasons and others,
our law places strict legal duties on the arresting police officer. The
officer must tell the person that he has the right to remain silent. As I
said earlier, this is a fundamental cornerstone of our democracy. The
officer must also tell the person he has the right to speak with a
lawyer, and that there is a publicly funded Legal Aid duty counsel
available to advise him of his rights.

[21] In the interest of crime prevention and investigation, our police are
given considerable leeway when they question an arrested suspect. 18
However, it is sometimes not enough for the officer simply to recite
the persons 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. 19

[22] Three years later, the Supreme Court of Canada in R v Bartle


revisited this point of law. The Court stated that when making an
17
R v Oickle, 2000 SCC 38, [2000] 2 SCR 3; R v Singh, 2007 SCC 48, [2007] 3 SCR 405.
18
R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310; R v McCrimmon 2010 SCC 36, [2010] 2 SCR 402; R v
Willier, 2010 SCC 37, [2010] 2 SCR 429.
19
R v Evans [1991] 1 SCR 869 at 891, 63 CCC (3d) 289 [Evans].
9

arrest, a police officer must explain our constitutional rights clearly


and fully. 20 If the arrested person does not understand his rights, he
will not be able to make an informed or intelligent decision about how
he should exercise those rights. The court in Bartle went on to say
that if the circumstances suggest that a language issue may prevent a
person from understanding his rights, then the police have a duty to
assure that the person fully understands his rights. 21

[23] As I said over a year ago in R v Oroluk, 22 this is a particularly


important issue in Nunavut. In 2011, 86.3 per cent of Nunavuts
population self-identified as Aboriginal. 23 That same year, 55.6 per
cent of school-age children spoke Inuktitut at home. 24 Nunavut has
the lowest literacy and numeracy rates in Canada. 25 Nunavut has the
lowest percentage of students who graduate from high school. 26 In
2014, only 31 per cent of the population had graduated from high
school. 27

[24] The statistics I have cited as not just numbers. Experience in our
Court has shown us that a significant number of Nunavummiut have a
limited grasp of English. It is also very clear that many Nunavummiut
do not understand how our legal system operates, and this includes
repeat offenders. This means that a significant number of Inuit on
arrest will not immediately understand they have the right to remain
silent. Nor will they understand what evidence means, where it is to
be used, for what purpose and to what end. Our constitution requires
the police in Nunavut to be alert for a lack of understanding on part of
an arrested Inuk. Our police must ensure the accused person
understands his rights whenever it is unclear if the person, in fact,
understands. In many, if not most cases, that will require the officer to
do more than simply recite a list of rights by rote.

20
R v Bartle, [1994] 3 SCR 173 at 193, 19 OR (3d) 802 [Bartle].
21
Ibid at 193, 206.This case focused on the right to counsel, however the principle is the same.
22
R v Oroluk (4 December 2015), Iqaluit 14-13-122 (NCJ).
23
Statistics Canada, Literacy and numeracy, average scores and distribution of proficiency levels, by sex
and age group, population aged 16 to 65, Canada, provinces and territories, CANSIM Table 109-0401
(2012).
24
Statistics Canada, Proportion of the school age population, by selected characteristics, Canada,
provinces, territories and in and, out of census metropolitan areas (CMAs), CANSIM Table 477-0094 (2011).
25
Statistics Canada, Literacy and numeracy, average scores and distribution of proficiency levels, by sex
and age group, population aged 16 to 65, Canada, provinces and territories, CANSIM Table 477-0079
(2012).
26
Nunavut Bureau of Statistics, Public School Enrolments StatsUpdate, 2014-2015, Education (Iqaluit: 18
November 2016); Nunavut Bureau of Statistics, Public School Graduates StatsUpdate, 2014-2015,
Education (Iqaluit: 18 November 2016).
27
Statistics Canada, Education Indicators in Canada: An International Perspective 2016, Tourism and the
Centre for Education Statistics, Catalogue No 81-604-X (15 December 2016) at 38.
10

[25] In Canadas north, it has long been recognized that the police have a
duty mandated by law to ensure an arrested Inuk understands his
rights. This reality pre-dates division from the Northwest Territories.
In fact, judges have been making this point for decades. 28 Justice
Marshall of the Supreme Court of the Northwest Territories said the
following in 1985:

I might make some general statements on the taking of statements


in the North, because it is very difficult for the police to satisfy the
traditional rule as to voluntariness and for them to satisfy the
requirements now of the Charter. The reasons for the difficulty are
several, and some, I think, are more subtle than others. First of all,
some of the people in the North are untrained in matters of Canadian
criminal justice, police matters and legal matters. Many of the people
in northern communities, for reasons of culture, a lack of exposure to
the law, education, geographic separation and many other reasons
require a fuller explanation of their rights when taking a statement, an
explanation of their rights and a clearer warning on arrest and
detention. 29 [Emphasis added]

This northern reality as described by Justice Marshall still holds true.


In my respectful view, this statement accords with the law as stated in
Evans 30 and Bartle. 31

[26] The purpose of the confessions rule is to ensure not only that the
accused understood his right to silence; it is also intended to ensure
the accused understood the legal implications of giving up that right.

[27] This is the legal framework I must apply to the facts of this case.

V. THE PARTIES POSITIONS

[28] The Crown prosecutor, Mr. Roman Dzioba, says the Court should be
satisfied that the statement was given freely and voluntarily and while
the accused had an operating mind. He says the accused was a
student at Arctic College at the time and was not unsophisticated.
The accused, he says, understood English well enough to understand
his situation and his rights.

28
R v Kooktook et al, 2006 NUCA 3 at para 130, 210 CCC (3d) 106 Vertes JA [Kooktook].
29
R v Haniliak [1985] NWTR 352 at para 8, 1985 CarswellNWT 29.
30
Evans, supra note 19.
31
Bartle, supra note 20,
11

[29] Defence Counsel says the Crown has not met its onus of proof. She
urged the Court to reject Cpl. MacEacherns evidence because it was
not detailed. She reminded the Court that the statement is not
admissible unless and until the Crown proves its voluntariness
beyond a reasonable doubt. She also reviewed Northwest Territories
and Yukon case law which has considered the right to silence in the
context of northern Aboriginal communities.

VI. ANALYSIS

[30] There is no doubt on the evidence that both police officers recited to
the accused his rights. However, the evidence goes no farther than
that. In my respectful view, it was not enough for Cpl. MacEachern to
tell the accused he did not have to say anything and that that anything
he said could be used as evidence. Nor did Cst. Kerstens provide a
clear explanation of the accuseds rights even though there were
positive indicators the accused had trouble understanding what was
said to him.

[31] Cpl. MacEachern was the arresting officer. He testified he gave the
accused his rights off the top of his head on arrest. In his opinion,
the accused understood what was said to him. However, Cpl.
MacEachern provided no contextual evidence of the details of the
interaction. For example, he did not testify to any facts which led him
to form his opinion that the accused understood the reason for his
arrest. He did not testify to what, if anything, the accused said at any
time. He did not tell the Court what, if anything else, he said to the
accused. He did not testify to how the parties were positioned in
relation to each other at all material times. In short, we know next to
nothing about what really happened at this critical first interaction
between the police and the accused. Nor was his evidence any more
detailed about what had happened as the parties went from the
accuseds residence to the police vehicle.

[32] The same analysis applies to what happened next in the police
vehicle. Cpl. MacEachern testified he read the accused his rights
from a prepared card. He did not bring the card to Court to read into
the record exactly what he said. He did not testify what, if any, reply
was made by the accused. He did not testify about what was
happening while they interacted. It was only in cross-examination that
he mentioned he had recorded some replies from the accused; but
then he did not explain what his notes meant. This vague evidence
12

does not permit the Court to assess the appropriateness of the


corporals conduct or what he said. It does not permit the Court to
assess whether the steps he took were sufficient to give the accused
a clear understanding of his right to remain silent.

[33] I am troubled by Cpl. MacEacherns evidence that he did not record


the accuseds words on arrest because they are not relevant.
Everything said by an accused person on arrest is potentially relevant.
What an accused person says is critically relevant if the Crown seeks
to use his subsequent statement against him. The Crown must prove
voluntariness beyond a reasonable doubt. The reasonable doubt
standard requires a very high level of evidentiary detail. In the context
of a statement voir dire, this proposition was made by Justice Vertes
in the Kooktook case:

Where the evidence adduced by the Crown is exhaustive in respect of


everything that was said to the accused by persons in authority and it
discloses no threats or inducements, then the statement is likely to be
found voluntary. The only way available to the Crown to prove such a
negative proposition is to produce evidence of everything that was said
to or in the presence of the accused and all the circumstances relevant
to the making of the statement. 32 [Emphasis added]

Cpl. MacEacherns evidence failed to meet that exacting


standard. His failure to follow investigative best practices
undermined any chance to have the statement admitted later as
evidence.

[34] I am more troubled by another of Cpl. MacEacherns answers. In


direct examination, he was asked by the prosecutor if he had any
interaction with the accused after the call to duty counsel. Cpl.
MacEachern replied I do not recall any. 33 In cross-examination, his
testimony changed significantly.

[35] This is how Cpl. MacEachern answered the same question in cross-
examination: My testimony was that I didnt. My testimony is that I
didnt recall any. From what I understand there were but I dont recall
those. Cpl. MacEacherns answer in cross-examination was
internally inconsistent threefold. He stated first: my testimony was
that I didnt. That answer was not correct. He then immediately

32
Kooktook, supra note 28 at para 120, citing S Casey Hill, David M Tanovich & Louis P Strezos,
McWilliams Canadian Criminal Evidence, 4th ed (Aurora, ON: Canada Law Books, 2003) at 8-105.
33
Voir dire transcript at 13, line 27.
13

returned to what he had said in direct examination: my testimony is


that I didnt recall any. He then changed his testimony significantly to
the following: from what I understand there were [interactions] but I
dont recall those. 34 Whatever else might be said about this answer
and his evidence generally, it demonstrates Cpl. MacEachern did not
answer the question candidly and fully in direct examination. I find
Cpl. MacEacherns evidence to be vague and unreliable. I can give it
very little weight.

[36] Cst. Kerstens testified about his role in taking the statement. He
presented both in court and on the video as conscientious and well-
meaning. He testified he stopped the interrogation and left the room a
few times to seek help. In fact, the video of the interrogation shows
he left the room five times. In a significant answer in direct
examination, he said the accused had a grasp of the English
language, but not of concepts. 35 This frank admission by the
constable goes to the very heart of the issue before this Court.

[37] It should have been immediately obvious to Cst. Kerstens at the start
of the interaction that he would have to make an extra effort to make
sure the accused understood his rights. Only a minute or so into the
interrogation, Cst. Kerstens asked the accused if he knew why he had
been arrested. I agree with Ms. Siebert that the following exchange
ought to have been a red flag for the constable:

A. Um, Im not I dont understand (inaudible).


Q. You dont understand okay um did the officer tell you why youre
arrested?

A. He just said youre sexually assault for I dont know what.


Q. For sexual assault?
A. Whatever I dont know.
Q. Okay do you understand what sexual assault means?
A. No actually.
Q. No?
A. No.

34
Ibid at 18, line 11.
35
Trial judges notes.
14

[38] The Court often sees video evidence where the investigator follows a
detailed written script to assist him with this important part of the
interrogation. In this case, Cst. Kerstens attempted to explain to the
accused his rights off the top of his head. Having been told by the
accused that he did not understand why he was arrested, the
constable continued by defining sexual assault as follows:

Q. Okay um sexual assault means that its alleged that you assaulted
somebody did something which means physical ah ah physical thing
okay it could be touch it could be a lot of different things but in sexual
manner.

[39] I have no reason to doubt the young constable tried to do his best
when he defined sexual assault in the way he did. However, as a
legal definition, it was incomplete and very hard to understand. I had
to read it several times to try to understand it. As a result, I can only
infer that the accused did not understand it either, despite the fact he
said he did.

[40] Cst. Kerstens next exchange with the accused was also problematic:

Q. Okay and with that Im going to let you know okay um they have
right to talk to the lawyer did you do that today?

A. Yes I did.

Q. Yeah okay and you remember the name of the lawyer you spoke to?

A. He didnt give me the name.

Q. He didnt give you the name okay did he give you advice?

A. He just got me advice.

Q. He did give you advice?

A. Yes I did.

[41] I understand Cst. Kerstens to have tried to say that an accused


person has the right on arrest to speak to a lawyer, to get legal advice
about his situation. Again, his off the top of his head explanation was
only partly accurate and somewhat confusing. This was followed
immediately with the constables question he did give you advice?,
and the accuseds reply was Yes, I did. The answer was a clear
15

sign the accused was having trouble following what was being said to
him. The accused had but a basic command of English. Yet, Cst.
Kerstens missed the cue and simply carried on.

[42] Cst. Kerstens moved on to advising the accused of his right to remain
silent. Because this right is the focus of the voir dire, this exchange
bears repeating:

Q. Okay thats just what I want to make sure okay and again I dont
need to know that advice was but I want to make sure that you have
the opportunity to speak the lawyer (sic) so like I said your rights are
as important to you as theyre to me so I want to make sure that you
got those rights, okay um so JD the last thing I want to talk about
before I talk about why were here okay, is youre here to speak with
me okay you and I are going to have conversation during the
conversation you dont have to say anything to me, okay and but its
important that you understand anything you say may be used as
evidence in court, you understand that?

A. Yes, I understand.

Q. Yeah okay.

A. I dont want to make a statement though.

[43] Cst. Kerstens explanation of the right to silence was problematic for
several reasons. The reference to the right to silence is swallowed up
in the middle of a lengthy monologue which, frankly, is difficult to
follow and understand. More importantly, just before the accused was
told you dont have to say anything to me, he was told youre here
to speak with me today you and I are going to have a
conversation. These statements not only contradict each other; in
real time, they gave a confusing mixed message. They do not meet
the constitutional requirements in Evans 36 and Bartle 37 that the
explanation be clear and full.

[44] I pause here to make a few observations which ought to have been at
the forefront of Cst. Kerstens mind. According to the Information, the
accused was born on April 20, 1996. He was just 19 years old at the
time of his arrest. He is from Coral Harbour, a tiny geographically
isolated hamlet with a population of 891 in 2016. He had never been
in trouble before with the law. The video shows him using what I
36
Evans, supra note 19.
37
Bartle, supra note 20.
16

would term stilted English. I infer that English is not his first
language. In any event, all these objective facts and signs should
have been positive indications per Justice McLachlin of a real
language comprehension issue. They ought to have alerted the
constable that he was required to take more care and make a greater
effort in explaining to the accused his legal rights.

[45] After Cst. Kerstens finished his attempt at an explanation, he asked


the accused if he understood. The accused said yes. But,
immediately the accused added: I dont want to make a statement
though. 38 I understand the accused as saying essentially: yes, I
understand I have the right not to speak, but I still dont want to talk to
you. This, too, ought to have been a warning sign to the constable
that the accused was having difficulty understanding this crucial
concept. Again, constable missed the cue and carried right along with
the interrogation.

VI. CONCLUSION

[46] In my respectful view, the Crowns evidence does not prove beyond a
reasonable doubt that the accused understood his Charter-protected
right to silence. The evidence also leaves me in considerable doubt
whether the accused understood the legal ramifications of not
exercising that right.

[47] This case highlights the vulnerable position of many Nunavummiut


when dealing with the police. It also highlights the need for our police
to adapt their policies and protocols to respond to the culture and
unique circumstances of the Inuit population they serve. This need is
not simply a matter of cultural sensitivity or political correctness; it is
mandated of them by our constitution. I repeat what I said earlier.
Our police must ensure an accused person understands his rights
where the circumstances suggest he does not. In many, if not most,
cases in Nunavut, this will require the officer to do more than simply
recite a list of rights by rote.

[48] I rule the statement made by Mr. Angootealuk on November 25, 2015
to be inadmissible as evidence, and it may not be tendered or referred
to at his trial.
38
In fact, the accused repeated this assertion six times during the interrogation. The law is clear the police
are not required to stop questioning a suspect if the suspect says he does not wish to speak to them.
However, it is a factor to be considered in the overall context of what happened.