R. v. Nakogee

Citation: 2025 ONSC 4969

Court File No.: CR-24-69

Date: August 29, 2025

Ontario Superior Court of Justice

Parties

Between:

His Majesty the King, Plaintiff

and

Brandon Nakogee, Defendant

Counsel and Court

Counsel:

• L. Rock and M. Crystal, for the Crown
• L. Galway, for the Accused

Heard: June 11, 12, and 13, 2025

Before: Wilcox, J.

Decision Re. Voluntariness

Introduction

[1] Brandon Nakogee stands charged with the second-degree murder of Tristan Ayers on or about December 17, 2022, to which charge he pleaded not guilty. He was arrested and gave a statement on December 23, 2022. The Crown seeks a ruling on the voluntariness of that statement.

Overview

[2] The Crown alleges that, in the early morning of December 17, 2022, Tristan Ayers and a witness walked into an alleyway in North Bay, to make a small fire to keep warm. Shortly thereafter, Brandon Nakogee and a co-accused, Trevor Goulais attended the alleyway and engaged in a physical altercation with Mr. Ayers. The witness was instructed by both defendants to leave the area, which she did. Mr. Ayers was assaulted and stabbed repeatedly with a knife. Both defendants fled the scene. At 2:18 a.m., a North Bay Police Service officer on general patrol was requested by the witness to check on Mr. Ayers. Mr. Ayers was located by the officer, lying on his back and bleeding profusely. He was transported to hospital where he succumbed to his injuries.

[3] On December 23, 2022, at approximately 10:50 a.m., Constable Vietmeier of the North Bay Police Service arrested the Respondent for second-degree murder. Constable Weber assisted with the arrest and read the Respondent his rights to counsel and caution. Constable MacPherson (nee White) and Constable Vietmeier transported the Respondent to the North Bay Police Services Headquarters for processing.

[4] A telephone call was made to duty counsel by police at approximately 11:32 a.m., where a voicemail was left. At approximately 1:16 p.m., Constable Pinheiro removed the Respondent from his cell into a booth to speak with duty counsel over the phone.

[5] At approximately 10:06 p.m., the Respondent provided a statement to Detective Constable Pemberton. The entirety of the statement was audio/video recorded from the interview room at the North Bay Police Service Headquarters. Upon completion of the interview, Special Constable Murphy removed the Respondent from the interview room and returned him back to the cell.

[6] The Crown brought an application for a ruling that the statement was made voluntarily and is admissible in evidence at the accused's trial. The defence opposed that.

[7] In support of the application, the Crown filed a factum, a copy of the indictment, a transcript of the statement and a two-volume book of authorities.

[8] At the hearing, the Crown's witnesses were the arresting officers, Constables Vietmeier and Weber and the interviewing officer, Constable Pemberton. The accused did not testify, called no witnesses and filed no documents.

[9] Officer Vietmeier testified that, on December 23, 2022, he was provided reasonable grounds for the accused's arrest and attended with Officer Weber at the accused's residence where the accused's father said the accused was not home. Not believing that, the police watched from a distance in a surveillance vehicle and observed the accused leave the residence on foot. The officers approached him and Vietmeier exited the vehicle and told him that he was under arrest for second degree murder. Once Vietmeier was no longer actively engaged with arresting the accused, he was able to start an audio recording on his work cellphone. He estimated that it missed about one minute of his conversation with the accused in which, as outlined in his notes, he identified himself, told the accused what he was under arrest for, had him remove a backpack, handcuffed him, and escorted him to the vehicle. The audio recording was played in court. It records Officer Weber giving the accused his rights to counsel and caution.

[10] Officer White arrived in a marked cruiser and transported Vietmeier and the accused to police headquarters. The audio recording continued through the drive to headquarters then through the booking process to the lodging of the accused in cell number ten where Vietmeier confirmed that the accused wanted to speak with legal aid as he had previously indicated when asked. The audio recording ended then because Vietmeier's interaction with the accused was complete. It became exhibit 1.1. Vietmeier went and placed a call to legal aid from another room and left a message on an automated recording system, and notified the investigating officer of that, concluding his involvement with the accused.

[11] A series of video recordings were played in court. Vietmeier identified the first, exhibit 1.2, as showing Officer White's vehicle arriving in the security garage at the police station and Vietmeier walking with the accused to the booking room. Exhibit 1.3 was identified by Vietmeier as the same video from a different angle. Next, exhibits 1.4 and 1.5 were videos from different angles of the booking room area. They show the booking officer asking questions of the accused while other officers were around, after which Vietmeier uncuffed and searched the accused and had him remove extra clothing items. The last video, exhibit 1.6, Vietmeier said showed him then walking the accused from the booking area to cell number ten, conversing with the accused, and then pulling out his cellphone to end the audio recording. There was no time between arriving at the police station and lodging the accused in the cell that Vietmeier was with the accused but not on camera. There would be video of another officer getting the accused from cell number 10 and taking him to the telephone room.

[12] Vietmeier's observations of the accused were that:

a) He seemed fine. Nothing seemed out of the ordinary. His responses to questions seemed appropriate. He was calm, cooperative and coherent. He appeared sober. There was no doubt that the accused understood what was going on and why he was under arrest.

b) He did not require any physical assistance. He was not unsteady on his feet. His movements seemed normal. He did not ask to lie down.

c) His only request was to speak with counsel in response to a standard question.

d) The accused told the booking officer that he had used fentanyl that day.

[13] Vietmeier denied that:

a) He had ever threatened the accused.

b) He had ever said that it would be better if the accused confessed.

c) He had ever promised anything such as bail if he confessed.

d) He had ever suggested that a lighter sentence would follow a confession.

e) He had ever laid hands on the accused other than to grab his arm on arresting him.

f) He had struck or threatened the accused.

g) That he or anyone had ignored a request of the accused.

h) That anyone in his presence had done any of these things.

[14] Veitmeier acknowledged that there are withdrawal symptoms associated with fentanyl, that they could be quite severe and that they could include a lot of pain, which can be quite distracting. He could not say how long after use the effects would last and withdrawal would begin.

[15] Officer Weber testified, as had Veitmeier, that they had arrested the accused. Weber had provided his rights to counsel and a caution to the accused, just after Veitmeier had started the audio recording. After White and Veitmeier left with the accused in White's marked police cruiser, Weber had returned in his unmarked car to the police station. He was with the accused for about five minutes. Over that time:

a) The accused was cooperative and seemed to understand why police were there.

b) Weber had no concerns about the accused's understanding of his rights to counsel and he was satisfied with the accused's response.

c) Everything seemed okay. There was nothing out of the ordinary.

d) Weber was not aware that the accused was under the influence of any drugs or alcohol.

[16] Weber denied:

a) Making any threats or promises to the accused.

b) That he had said it would be better if the accused gave a confession or that one would get him bail or a lighter sentence.

c) Touching the accused other than helping to handcuff him.

d) Physically striking or threatening the accused.

e) That anyone in his presence did any such things.

f) That he ignored any request by the accused.

[17] He denied seeing the accused at the station afterward.

The Accused's Statement

[18] The accused gave a statement to Officer Pemberton. It was audio and video recorded, which recording was played in court. He was escorted into the interview room at 22:06:55. Officer Pemberton entered at 22:12:09 and left and re-entered on four occasions, leaving finally at 23:03:04. The accused was ushered out seconds later. So, the accused was in the room for about 56 minutes and was being questioned for less time than that.

[19] Watching the recording, various observations were made:

1. The accused was dressed in an ill-fitting, too small jumpsuit that he could not close properly over his chest as it appeared that the Velcro fastener had failed.

2. He was barefoot.

3. He spoke of being cold.

4. He exhibited discomfort and spoke of feeling pain in his back.

5. He was yawning.

6. At times, he was twisting in his chair, bent over putting his head on the table, or trying to curl up in the chair.

7. When Pemberton was out of the room, he stood and walked about.

[20] At the start of his statement, the accused acknowledged that, when he was arrested:

1. He was informed of the charge.

2. He was given his rights to counsel and cautioned.

[21] He was told and acknowledged that he did not have to talk to Pemberton. He confirmed that no one had made any promises to him about him getting anything in return for giving information. He said that he had been treated "okay". He denied having any injuries.

[22] He did say that he had taken fentanyl at about 6 or 7 a.m. and, at 10:00 p.m., was not feeling the effects, but was feeling the lack of fentanyl, specifically that his back was sore.

[23] Officer Pemberton began to ask questions relating to the murder under investigation. The accused's answers were "mm-hmm," head shakes and a few words. Initially, he denied knowing why he was in the interview, who it was in regard to, or anything about the situation. Then, he became practically unresponsive to the officer's questioning.

[24] Consequently, the officer said that he would be put back in his cell as he did not want to talk and exited the room at 22:45:42. She re-entered about one-and-one-half minutes later telling the accused they were going to get him back to his cell. However, she told him that he could still tell his side of the story but, if he chose not to, she had an officer to take him back to the cells. It was then that the accused began to disclose about what happened. At some point, he said that his back was sore, but he continued to answer numerous questions. He refused to sit up at one point because it hurt. Eventually, he stated that his back was killing him, answered a few more questions, then said that he can't talk. The officer asked more questions, which the accused answered before saying he had to go to the cell because his back was too sore. After three more questions, which the accused answered, an offer of another bottle of water was made, which he refused. The officer then left the room for less than a minute. Re-entering, she acknowledged his request to go to the cells, but said that she had one more question. He essentially invited her to ask it, which she did and he answered. She then asked if there was anything else that he wanted to say to the court or to the deceased's family before returning to the cells and, after initially responding "no", he said "sorry". She left to get someone to take him to the cells. Another officer opened the door for that about 10 seconds later. While briefly alone in the interview room, the accused said to the camera, "Sorry. So sorry."

Law

[25] The law to do with the voluntariness of statements was well summarized by Stothart J. in R. v. Tyler Campbell and Nadine Melvaer in a March 25, 2024, decision:

The Relevant Legal Principles

Voluntariness

(17) The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary: R. v. Oickle, 2000 SCC 38 at paras. 20 and 68; R. v. Beaver, 2022 SCC 54 at para. 45.

(18) The voluntariness rule has at its core, the twin goals of protecting an accused's rights without unduly limiting society's need to investigate and solve crimes. The rule is animated by both reliability and fairness concerns, and it operates differently depending on the context: R. v. Oickle, at paras. 32-33; R. v. Singh, 2007 SCC 48 at paras. 1, 21, 27-28, 31 and 34; R. v. Tessier, 2022 SCC 35 at para. 70.

(19) The concept to voluntariness includes a complex of values engaging policy concerns related to not only the reliability of a confession, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system: R. v. Beaver, at para. 47.

(20) In R. v. Oickle, the Supreme Court identified four areas of concern in cases where an accused has provided a statement to the police: (1) where offers or inducements have been made to obtain the statement; (2) where the police have engaged in oppressive conduct; (3) where an accused lacks an operating mind; and (4) where the police have resorted to tricks in order to obtain a statement.

(21) More recently, the Supreme Court of Canada has added the absence or presence of a police caution as a relevant area of concern: R. v. Tessier; at paras. 78-79; R. v. Beaver, at para. 51.

(22) These factors are not a checklist. Ultimately a trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority: R. v. Tessier, at para. 68.

Inducements

(23) Some kind of inducement will often be offered to obtain a confession. An inducement becomes improper when the inducement, standing alone, or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. The key is whether the inducement makes the statement involuntary: R. v. Oickle, at para. 57.

(24) A legitimate means of persuasion is permissible when the police question a suspect. The police are not obliged to cease questioning when an accused asserts their right to silence. However, the continued questioning in the fact of an accused's declaration of his/her unwillingness to speak and right to silence might, depending on the circumstances amount to a denial of a meaningful choice to remain silent: R. v. Singh, paras. 47-53.

Oppressive Circumstances

(25) Oppressive conduct by the police may result in a statement that is unreliable. As such, the court must examine the circumstances under which a statement is provided to determine whether the conditions were so oppressive that they could have impacted the reliability of the statement.

(26) Examples of oppressive circumstances recognized by the courts include depriving the suspect of food, water, clothing, sleep or medical attention. It includes denying access to counsel and excessively aggressive, intimidating questioning for a prolonged period of time. Further, depending on the circumstances, the use of false evidence in a manner that would lead the suspect to believe their protestations of innocence are futile: R. v. Oickle, at para. 60.

Operating Mind

(27) When assessing whether an accused has an operating mind, the court must be satisfied, beyond a reasonable doubt, that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend that the evidence might be used in criminal proceedings: R. v. Whittle, [1994] 2 S.C.R. 914 at p. 939; R. v. Tessier, at para. 8.

(28) The default assumption is that, absent cognitive impairment, an operating mind exists: R. v. Tessier, at para. 52.

(29) Whether an accused had an operating mind at the time they provided a statement is not a discrete inquiry, divorced from the rest of the confessions rule. It must be considered within the context of all of the circumstances surrounding the taking of the statement: R. v. Oickle at para. 63.

Police Trickery

(30) Unlike the previous three headings, the doctrine of police trickery is a distinct inquiry. Its objective is to maintain the integrity of the criminal justice system. This area of inquiry is concerned with the conduct of a person in authority with respect to the taking of a statement: R. v. Oickle at para. 65.

(31) The police are entitled to use tactics, including trickery, in order to investigate crime. What the court should be concerned with is police conduct that is so appalling as to shock the community: R. v. Oickle at para. 67.

Lack of Police Caution

(32) The confessions rule protects the right to silence at all times during an investigation, whether or not the interviewee is in detention. While a proper caution will not guarantee that a statement given thereafter is voluntary, it does assist the Crown in demonstrating that the accused made a free choice to speak to the authorities. R. v. Tessier, at para. 5.

(33) The weight to given to the absence of a caution falls on a spectrum. On one end of the spectrum are circumstances where the police interview uninvolved witnesses. In those circumstances, the absence of a caution is negligible. At the other end of the spectrum are circumstances where the police interview detained suspects. In those circumstances, given the detainee's vulnerability and legal jeopardy, fairness commands that a caution be provided: R. v. Tessier, at para. 78-79.

(38) If the Crown cannot prove that the absence of a caution had no impact on the voluntariness, the prima facie evidence of involuntariness raised by the absence of a caution will lead to a conclusion of inadmissibility. The absence of a caution weighs heavily because, where unaddressed, it represents prima facie evidence that the suspect has been unfairly denied of their choice to speak to the police and therefore their statement cannot be considered voluntary: R. v. Tessier, at para. 11.

(39) A police caution informs a suspect of his/her right to silence. It may be provided in plain language. The caution informs the suspect that they are not obliged to say anything unless they wish to do so, but whatever they do say may be given in evidence. R. v. Singh, at para. 31; R. v. Beaver, at para. 59.

Submissions

[26] The defence did not raise any concerns about inducements such as threats or promises.

[27] The defence's position was that the Crown had not proved beyond a reasonable doubt that the statement was voluntary. The focus was on oppressive circumstances, operating mind, and the caution. The submission was that an accumulation of factors created an atmosphere of oppression that would affect the operating mind, the fairness of the situation and the reliability of the statement.

[28] The defence submitted that the oppression was caused by the accused's withdrawal symptoms. The police knew from him that he had taken fentanyl around 6 or 7 a.m. that day. They had given evidence regarding what the withdrawal symptoms could include. They chose to delay the interview for about 11 hours. The defence raised the possibility that the police knew that the accused would be experiencing withdrawal symptoms and purposely delayed the interview to take advantage of that. She pointed out that the accused had exhibited some of what could be withdrawal symptoms, including discomfort or even pain in his back, which the police had not addressed, feeling cold, sniffling and yawning, and that Officers Vietmeier and Pemberton had testified that that could affect the mind of an accused who is being questioned.

[29] The Crown replied that the defence had filed no case law suggesting that police questioning during withdrawal amounted to oppression. Secondly, the defence had not led an evidentiary record about the accused's fentanyl use, whether he was in fact exhibiting withdrawal symptoms or the degree of his discomfort. The evidence in this regard involves speculation as to what might be occurring, by officers without expertise on the topic.

[30] The defence also submitted that the accused's yawning was an indication of possible sleep deprivation and that no officer had asked him during the interview when he had last slept.

[31] The Crown replied that the accused was arrested in the morning and interviewed about 10 hours later. He spent most of his time in between in the cells. There was no evidence as to whether he napped, nor that the police had kept him up. So, he might have been tired but he was not sleep deprived in a fashion that would be oppressive.

[32] The defence submitted that Officer Pemberton's positioning – in the physical space of the accused during questioning - added to the atmosphere of oppression. In the interview room, the accused was seated at the long side of the table. Officer Pemberton sat at the end of the table, closer to him than if she had been seated across the table from him. At times, she leaned forward, resting her forearms on the table, moving even closer. She acknowledged that she would not typically get that close to have a conversation with a stranger. She characterized it as an effort to remove barriers, not to intimidate.

[33] The Crown replied that the audio/video recording of the statement showed that Pemberton is not a large person compared to the accused and, furthermore, was not loud nor aggressive in her questioning.

[34] On a further point, as noted above, the accused was initially largely unresponsive to questioning. Pemberton indicated to him that, as he did not want to talk, he would be put back into his cell. She left, returning in about one-and-one-half minutes, repeating that, but offering a further opportunity to talk, whereupon he gave the inculpatory part of the statement. He then said his back was sore and that he would like a bottle of water, which Pemberton leaves briefly to get. After that, he continued to answer questions before again complaining of pain in his back and that it hurt to sit up. Nevertheless, he continued to be asked and to answer questions before complaining again of his back and wanting to go to the cell. He was asked and answered a few more questions before Pemberton left, returning in less than a minute. Upon her return, she acknowledged that he was hurting but said she had one more question, about where the knife went, which he said he did not know. Pemberton then asked if, before going back to the cells, if he had anything else to say to which he answered "no". She asked, if he was to see the deceased's family, what he would say to them. He answered "sorry" but declined her suggestion that he say that to the camera. Pemberton then said that she would get someone to take him to the cells and left, upon which the accused did say "Sorry. So sorry" to the camera before another officer removed him to the cells two seconds later. Referring to this sequence of events, the defence submitted that the message being sent to the accused was that he was not going to get to his cell until the officer had completed her questioning. Even on the occasion before the accused first began to give the inculpatory part of his statement, defence submitted, Pemberton never intended to have the accused taken back to his cell, as she would not have an officer with her to do so when she returned to the interview room.

[35] The Crown replied that, here, the defence is alleging police trickery. The Crown submitted that, even if Pemberton was misstating her intentions, that is an acceptable level of trickery.

[36] I do not agree with the defence's characterization of that situation. As the statement shows, when Pemberton eventually had the accused return to the cells, she left the interview room and shortly thereafter another officer escorted the accused out. That the escorting officer did not enter with Pemberton at the point in question does not show that she had no intention of returning the accused to the cells before he began to inculpate himself. For all we know, the escorting officer might have been waiting outside the door but was not required because the accused began to talk. Even if it did, the accused would not have known that in order to infer that he was not getting back to his cell until he answered all of the questions. Furthermore, even if it was police trickery, it is not shocking.

Re. The Caution

[37] The defence submitted that there was an issue about the caution. Although given the caution upon his arrest, it was subsequently learned from the accused that he had taken fentanyl that morning, leading the defence to question whether the accused understood the caution. The defence contended that, at the start of the interview, the accused was not really cautioned and told that he had a right not to speak to the police. That, the defence submitted, is a factor in determining voluntariness.

[38] The Crown's position was that there was a proper caution but, even if there was not, the absence of a caution is not fatal to a confession.

[39] Both the Crown and the defence relied on R. v. Beaver's explanation of the law on this point. In summary, a police caution is an important factor in answering the question about voluntariness. Its absence is prima facie evidence that the accused has been unfairly denied their choice to speak to police and, therefore, the statement cannot be considered to be voluntary. However, a caution is not a necessary condition of voluntariness. The Crown may show that the accused understood the right to silence or the consequence of speaking to the police.

[40] In this case, the accused was cautioned by Officer Weber upon his arrest. Weber was satisfied that he understood. There is no evidence that he did not, whether due to fentanyl use or other reasons. Even if he did not understand the caution given upon arrest, we have the evidence of officer Pemberton about the accused's understanding.

[41] At the beginning of the interview, after introducing herself to the accused, Constable Pemberton confirmed with him that:

1. He knew that he was arrested for second degree murder.

2. He had been given his rights to counsel.

3. He had had the opportunity to speak with a lawyer.

4. He had been cautioned that anything he said could be used in evidence.

[42] She went on at some length to explain that:

1. The police were gathering information about the offence.

2. That that included what people said to the police.

3. That their interview was being recorded.

4. That he did not have to speak with her.

5. That anything he said to her should be voluntary.

[43] She confirmed that nobody had made promises to him in return for giving information, and that he understood. She also elicited that he was not feeling the effects of taking fentanyl that morning. To her question, was he feeling the effects of a lack of fentanyl, all he identified was a sore back.

Conclusion

[44] In conclusion, I find that the Crown has proven beyond a reasonable doubt that the statement was voluntary and is admissible into evidence. I have heard the evidence of the police involved, including their cross-examinations. I have also heard the audio recording done by Officer Vietmeier and viewed the video recordings, all submitted by the Crown. No evidence was proffered by the defence. The evidence is that there were no offers nor inducements made to obtain the statement. As for oppressive conduct, although the accused was uncomfortable and even experiencing some pain, the circumstances did not amount to oppression. Even if they had, the accused was on the verge of being returned to his cell when he began to inculpate himself. That there was oppression or any lack of an operating mind due to fentanyl use is speculative. If there was any police trickery as alleged, it is far from being so appalling as to shock the community. Finally, the accused had been cautioned upon arrest and appeared then to understand. He confirmed that to Officer Pemberton at outset of the interview. She, in effect, re-cautioned him and again confirmed that he understood. There is no evidence that he failed to understand due to fentanyl use or otherwise, or that he lacked an operating mind. Indeed, he effectively remained silent until the interview was about to be terminated for that reason. He clearly made the choice to confess. Overall, there is nothing in the evidence that creates concern about the fairness of the situation to the accused or about the reliability of the statement.

Wilcox, J.

Released: August 29, 2025