A pivotal confession from accused killer Joshua Frank may not be allowed into evidence at a triple first-degree murder trial because RCMP ignored repeated requests from Frank to use the washroom.
Frank and Jason Klaus are charged with three counts of first-degree murder in the Dec. 8, 2013 deaths of Gordon, Sandra and Monica Klaus.
Both men were arrested on Aug. 15, 2014 and interrogated for days in separate rooms at the Red Deer RCMP detachment.
The interview with Frank reached an emotional and evidentiary climax towards the end of the second day of questioning.
- Accused confessed to Red Deer triple-murder charges, claims he was sexually coerced by co-accused
- Accused killer admits on tape he planned murders of parents, sister
Frank tearfully revealed to RCMP that Klaus had sexually abused him for three years, beginning when he was 14.
Frank's lawyer, Andrea Urquhart, told the court: "He's visibly, emotionally distraught. He's there and he's crying and he's inconsolable."
The revelation about the sexual abuse led directly into another confession from Frank: He admitted he shot the three victims in the head.
Urquhart thinks RCMP took advantage of Frank's fragile emotional state.
"It's during those times police put to him that he is the shooter in this case," Urquhart said.
"Police are trying to capitalize on that emotional distress to elicit evidence that he's the trigger man."
During the final Saturday night interview, Frank asked RCMP five times to use the washroom.
His repeated requests were not answered for two hours.
"There's no break being afforded to Mr. Frank," Urquhart told the court. "It was psychological pressure along with physical pressure not allowing Mr. Frank to use the bathroom."
Urquhart suggested those conditions could elicit a false confession.
Judge to decide if confession admissible
The videotaped interviews with Frank were viewed by the court during a voir dire — that is, a trial within a trial, held in some cases to determine the admissibility of evidence.
The onus is on the prosecutor to prove beyond a reasonable doubt that Frank made those statements voluntarily.
Frank's lawyer argued Wednesday afternoon that Justice Eric Macklin should not allow the key confessions into evidence because of the psychological and physical pressure her client was under.
"Those statements were made in the context of oppression," she said. "If it was oppressive, then the statements should be excluded."
In response, prosecutor Douglas Taylor said, "He wasn't squirming." But he acknowledged there was a delay in allowing Frank to use the washroom.
"That's an understatement, isn't it?" Macklin responded.
The judge noted Frank's five requests to use the washroom.
"It's not so much the number of times, it's the length of time," Macklin said. "A two-hour wait is a long time for anybody to wait to go to the washroom."
The judge, who is hearing the case alone without a jury, responded: "I'll have to consider that."
Macklin reserved his decision on the interrogation video, without any indication of when he would hand down a ruling.
"Police have to treat him properly," Macklin said. "I'm going to have to think about things."
Last week, Macklin admitted into evidence all the RCMP interviews with co-accused Jason Klaus. Klaus's lawyer did not challenge the voluntariness of those statements.