Court upholds admissibility of statements by Levi Cayen

An NWT Supreme Court justice says statements Levi Cayen gave to police once arrested over the death of Alexander Norwegian were admissible in court as they were given freely.

Cayen, who was convicted of manslaughter following a trial last year and pleaded guilty to robbery, had tried to have two statements thrown out, arguing they were not made voluntarily.

In a written decision released this week, Justice Shannon Smallwood detailed her reasons for disagreeing.

During a voir dire – a separate hearing to determine whether evidence is admissible in trial – Cayen’s lawyer, Alan Regel, raised concerns about the conduct of the police officers who interviewed Cayen, the conditions he faced in custody, and the time it took before he saw a justice of the peace.

Crown prosecutors Duane Praught and Steven Straub, however, argued there were “no inducements, oppression or police trickery” that would make Cayen’s statements inadmissible.

Smallwood ruled that factors like Cayen’s cell being cold and a delay in providing him food did not affect the voluntariness of his statement.

“The circumstances surrounding the taking of the statement were not ideal; they rarely are,” she wrote.

“However, I have carefully considered the circumstances surrounding the taking of the statements from Levi Cayen and concluded that there were no inducements or oppressive circumstances that had the effect of overcoming Mr Cayen’s free will to decide whether to speak to the police or not.”

Cayen was initially charged with first-degree murder and robbery and arrested on January 3, 2018. He gave a 14-minute statement to police that night, then a nearly five-and-a-half-hour statement the following day, both of which were recorded on video.

During the second statement, Cayen admitted his involvement – along with co-accused James Thomas – in robbing and beating Norwegian on Kátł’odeeche First Nation’s isolated Wilderness Road early on the morning of December 27, 2017. He admitted they left Norwegian in -30C weather in a vehicle with smashed windows, having taken his parka.

Cayen told police he made an anonymous call from a phone booth, reporting an impaired driver, in an attempt to get Norwegian help.

Norwegian was not found until the following day. A forensic pathologist testified the 25-year-old had died of hypothermia, while a small skull fracture played a significant role in him being unable to drive and seek help.

During the voir dire, Cayen said he was given inadequate clothing and blankets for his cold cell on the night he spent at the Hay River RCMP detachment. He suggested police deliberately made conditions difficult so he would be more inclined to make a statement.

Police said Cayen was given a sweater and pants but they did not have socks and it was late so no stores were open. They said the detachment was out of clean blankets at the time, but they gave Cayen a smock made of the same material.

Smallwood said the alternative was suitable and there was no evidence police were deliberately trying to make Cayen uncomfortable.

Cayen also claimed he was denied food and water before he gave his statement.

Smallwood, however, noted Cayen was given pizza and a bottle of water on the night he was arrested, which he did not eat. She said while it was unfortunate Cayen was not offered breakfast the following morning, that appeared to have been an oversight. She said he was given coffee and a burger after his statement began shortly after noon, which he struggled to eat as he said he did not have much of an appetite.

Cayen also alleged Cst John Keefe was confrontational, implied things would change if he spoke to police, and fabricated evidence during his interview. He said he repeatedly told the officer he did not want to answer questions.

Smallwood found while Keefe was persistent, he was not aggressive or confrontational. She said the officer did not suggest things would get better if Cayen spoke to police, and did not misrepresent evidence.

Smallwood added an accused asserting their right to silence does not require police to stop an interview.

Smallwood pointed out that when Cayen was shown evidence such as a statements by witnesses and photographs, he volunteered information without being asked.

“Ultimately, Mr Cayen chose to make the statement to police because he felt the others involved were trying to place the blame on him,” she wrote. “It was this concern that motivated him to make the statement to police.”

Finally, Smallwood found officers deciding to get a statement from Cayen before taking him to a justice of the peace was not unreasonable.

Under the criminal code, police are required to take an accused before a justice without unreasonable delay and within 24 hours of arrest. Cayen was taken to a justice of the peace about 22 hours after he was arrested.

Cayen was sentenced to 11 years’ imprisonment for manslaughter and given a concurrent seven-year sentence for robbery in June 2022.

Three other people have been convicted and sentenced for their roles in Norwegian’s death.

Thomas was sentenced in December 2021 to life imprisonment for second-degree murder and 10 years for robbery, to be served concurrently. Sasha Cayen was sentenced to 43 months for manslaughter and Tyler Cayen was sentenced to two years less a day for accessory after the fact to manslaughter, both in 2019.

Thomas is appealing his conviction for second-degree murder and sentence for robbery. The Crown is counter-appealing.