For a statement by an accused to a person in authority to be admissible the statement must be voluntary. What if the police mislead an accused? That may eliminate voluntariness. R v Arnakalla 2014 NUCJ 12:
 The police next show him a video of his common-law spouse, in which she begs him to tell the truth. The questions become much more pointed. His lack of memory is repeatedly challenged. All of this is within acceptable bounds, but the accused is obviously becoming frustrated and worn down by this process. He actually asks the investigator if they want him to lie, to pretend to remember what he does not. Eventually, he asks on a number of occasions, to be returned to his cell. At this point Constable MacDonald refuses to allow this. He tells the accused, in no uncertain terms, that the interview will end when the police decide it ends and that he is not free to leave the room. The following exchange is informative (Warned Statement of Ruben Arnakallak (November 25, 2011), at 95):
ARNAKALLAK: I thought you said I can go to my cell anytime I want? MacDONALD: Yeah well, you're under arrest, so you have to listen to the police and I'm the police and right now, we're gonna talk about what happened between you and your brother.
ARNAKKALAK: I should start lying(?).
MacDONALD: No, I don't want you to lie. I want you to tell the truth. ARNAKALLAK: I am telling the truth. I've been telling the truth.
 What follows in the Transcript of the Accused's statement, is 88 pages of highly suspect speculation by the Accused about what might have occurred. It adds nothing to the case against him, and any detail found in those pages which might found the basis for questions in cross-examination would have extremely limited weight. The fact that the police initially misled the accused about their willingness to allow him to return to his cell is an important factor in determining the impact that the subsequent change in tactic had on the ability of the accused to exercise his free will. The combination of the Accused's emotional state and this tactic, which would have left him with the understanding that the interview was going to continue until he told them what they wanted to hear, render any subsequent comments by the Accused involuntary and unreliable.
Wednesday, October 22, 2014
Monday, October 20, 2014
R. v. Olumide, 2014 ONCA 712:
 Section 579 of the Criminal Code gives the Attorney General the authority to direct a stay of proceedings at any time. The discretion to do so is reviewable only in the event of abuse of process. There is a presumption of prosecutorial good faith: see Krieger v. Law Society (Alberta) 2002 SCC 65 and R. v. Nixon 2011 SCC 34. The appellant has the onus of proving an abuse of process in the exercise of prosecutorial discretion.
 Mr. Olumide alleged that the Attorney General is in an inherent conflict of interest and this constitutes an abuse of process. The motion judge found that there was no evidence of abuse of process. Absent proof of an abuse, the discretion is not subject to review by the court: Campbell v. Ontario (A.G.) (1987), 35 C.C.C. (3d) 480 (Ont. C.A.), leave to appeal refused,  S.C.C.A. No. 202. There is no evidence to point to an abuse of process.