Sudden confession by North Bay, Ont., murder suspect was legal, judge rules

A North Bay judge has rejected a defence argument that a North Bay murder suspect’s confession to police is inadmissible because he was going through fentanyl withdrawal. (File)

A North Bay judge has rejected a defence argument that a North Bay murder suspect’s confession to police is inadmissible because he was going through fentanyl withdrawal.

Brandon Nakogee was 29 when he was charged with second-degree murder in the Dec. 17, 2022, stabbing death of Tristan Ayers, who was 33.

The Crown contends that Nakogee and co-accused Trevor Goulais entered an alleyway in North Bay early that morning, where Ayers and a witness were huddled by a fire to keep warm.

After a physical altercation with Ayers, the Crown said Nakogee and Goulais told the witness to leave the area, after which they beat and stabbed Ayers to death.

The witness later asked police to make a wellness check on Ayers, and discovered him on his back in the alleyway, “bleeding profusely.”

“He was transported to hospital where he succumbed to his injuries,” the court decision said.

Nakogee was arrested the morning of Dec. 23 and charged with second-degree murder. He was informed of his right to stay silent and to contact a lawyer.

Around 1:16 p.m., he was able to speak to a lawyer over the phone. By 10 p.m., Nakogee began answering questions from a police investigator about his role in what happened to Ayers.

The entire interview was recorded

Both his arrest and his statements were recorded and became part of the evidence in the case.

Nakogee told police that he had taken fentanyl the morning he was arrested. His interview with the officer began at 10:06 p.m. and ended at 11:03 p.m., by which time he was showing signs of withdrawal.

As his interview began, he was reminded that he had the right to counsel and told that he didn’t have to speak to the officer. Nakogee said he was feeling the effects of not taking fentanyl – specifically that his back was sore.

At first, he wasn’t responsive. The investigator told him if he didn’t want to talk, he would be taken back to his cell.

“It was then that the accused began to disclose about what happened,” the court decision said.

“At some point, he said that his back was sore, but he continued to answer numerous questions.”

The police officer kept asking questions and he kept answering, but began to say he wanted to go back to his cell because the back pain was becoming more severe.

“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 … After initially responding ‘no,’ he said, ‘sorry,’” the court decision said.

“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.’”

His defence lawyer argued that Nakogee made the statements “under oppressive circumstances” caused by his fentanyl withdrawal.

Withdrawal symptoms

“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,” the court said.

“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 …”

The defence argued the yawning was evidence of sleep deprivation and that the police officer taking his statement sat in a way that “added to the atmosphere of oppression.”

The defence also argued that he may not have understood when he was told he didn’t have to speak to police, because he had taken fentanyl the morning of his arrest.

“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,” the court said.

“That, the defence submitted, is a factor in determining voluntariness.”

Reminded of his rights

But the Crown argued Nakogee was informed of his rights when he was arrested, and by all appearances, he understood what he had been told.

And before she took his statements, the officer confirmed with him that he knew what he had been charged with, that he had a right to counsel and that anything he said could be used as evidence.

She also explained he didn’t have to speak with her, that their interview was being recorded and that anything he said was voluntary and that she wasn’t offering him anything in exchange for speaking with her.

There is no evidence that he failed to understand due to fentanyl use or otherwise, or that he lacked “an operating mind,” Superior Court Justice James Wilcox wrote in his decision.

“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.”

Read the full decision here.