Nunatsiaq Online
NEWS: Nunavut September 12, 2017 - 9:00 am

Nunavut judge: cops didn’t explain accused man’s Charter right to remain silent

"This case highlights the vulnerable position of many Nunavummiut when dealing with the police"

JANE GEORGE
Nunavut Justice Paul Bychok has ruled that a statement taken by the RCMP from a Nunavut man can't be entered as evidence because the man's Charter rights were violated. (FILE PHOTO)
Nunavut Justice Paul Bychok has ruled that a statement taken by the RCMP from a Nunavut man can't be entered as evidence because the man's Charter rights were violated. (FILE PHOTO)

A statement given to the RCMP by a Nunavut man arrested for an alleged sexual assault is “inadmissible as evidence, and it may not be tendered or referred to at his trial,” a Nunavut judge has determined.

That’s because the RCMP did not observe his rights, said Nunavut Justice Paul Bychok in the case of JD Angootealuk.

The officer who arrested Angootealuk didn’t adequately explain to Angootealuk that he had the right to remain silent, a right that’s guaranteed under Canada’s Charter of Rights and Freedoms.

Then, the officer who interrogated Angootealuk ignored “red flags,” which showed that Angootealuk didn’t understand what the RCMP member was saying.

“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,”  said Bychok in his judgment, delivered Aug. 25 and released Sept. 11.

After hearing arguments from lawyers for the Crown and defence, Aug. 18 at the Nunavut Court of Justice in Iqaluit, on the admissibility of Angootealuk’s statement as evidence in the sexual assault case, Bychok was tasked with the question of ruling on whether or not Angootealuk had understood that he had the right to remain silent.

Angootealuk had not, Bychok ruled.

The RCMP arrested Angootealuk, 19, a Nunavut Arctic College student from Coral Harbour, and took him into custody, after they received a complaint in November 2013 from a woman that she “may have been sexually assaulted” by Angootealuk.

But, in his judgment, Bychok said the Crown’s evidence, which included Angootealuk’s statement to the RCMP, did not prove beyond a “reasonable doubt that the accused understood his Charter-protected right to silence.”

In Canada, anyone arrested by the police has the right to remain silent.

“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”—which is what the arresting officer, RCMP Cst. MacEachern, said he did, from a “prepared card.”

Bychok also criticized MacEachern for changing his versions of what he did and said, as well as his poor recording of evidence. Bychok said “his failure to follow investigative best practices undermined any chance to have the statement admitted later as evidence.”

After his arrest in November 2013, Angootealuk was passed on to Cst. Kerstens “who did not appear to be an experienced interrogator,” Bychok noted.

Kerstens did not ask for an interpreter during the two-hour-long interrogation. Kerstens also stumbled, for example, when he tried to define what sexual assault is and presented what Bychok called “problematic” and contradictory information about the right to remain silent.

“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 don’t have to say anything to me,’ he was told ‘you’re here to speak with me today … you and I are going to have a conversation,’” Bychok said in his judgment.

“These statements not only contradict each other; in real time, they gave a confusing mixed message.”

The following exchange is revealing and should have been a “red flag” for Kerstens because it shows Angootealuk, whose English was “stilted,” was having trouble understanding Kerstens:

Q. ...You remember the name of the lawyer you spoke to?

A. He didn’t give me the name.

Q. He didn’t 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.

“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,” Bychok said.

“This was followed immediately with the constable’s question ‘he did give you advice?, ‘and the accused’s reply was ‘Yes, I did.’ The answer was a clear 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.”

After listening to the arguments in court about the admissibility of Angootealuk’s statement, Bychok decided that the Crown had not proven that Angootealuk understood that he had the right to remain silent while he was being questioned by police—and for this reason Bychok said Angootealuk’s statement to police could not be admissible as evidence.

  R. v. Angootealuk, 2017 NUCJ 17 by NunatsiaqNews on Scribd

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