R v Tomah, 2005 NBPC 23

This case was heard in the New Brunswick Provincial Court.

The Defendant, Jamie Kyle Tomah, an Indigenous person, was charged with night hunting, violating section 109(2) of the New Brunswick Fish and Wildlife Act. The issue brought before the Provincial Court by the government was a request for a statement that had been written by the Defendant to be admitted in evidence. The Defendant argued the statement was not made voluntarily and so should not be admitted. 

The Court applied the voluntariness test set out in R. v. Tessier, [2002] 1 SCR. That case established that in order to prove that a statement was given to officials voluntarily, a court must consider the circumstances surrounding the giving of the statement. The Court found that in these circumstances, while the Defendant may not have been directly threatened by the officers, he was under the impression that if he did as they said he could go home and sleep (it was late at night and very cold out at the time of the incident). Further, the statement made by the Defendant was not recorded or taped. Another relevant precedent established that whether a statement was videotaped or recorded should be considered when evaluating the voluntariness of a statement and its admissibility. The rationale is that, in those formats, the state of the Defendant can be observed, making voluntariness easier to be determined. In this case, the statement was neither videotaped or recorded, making it difficult to establish whether it was given voluntarily. Because of this, the Court held that the statement was inadmissible. 

This matter came before the court again in R. v. Tomah, 2005 NBPC 39.

View the Decision on CanLII: www.canlii.org/en/nb/nbpc/doc/2005/2005nbpc23/2005nbpc23.html

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