Accused killer's confessions ruled inadmissible because he was denied bathroom break

Explosive confessions made by accused killer Joshua Frank will not be allowed into evidence at the triple first-degree murder trial because RCMP denied him a bathroom break during his interrogation.

Justice Eric Macklin says he has reasonable doubt statements made to police were voluntary

Joshua Frank asked to use the washroom five times before he was finally given a break by RCMP investigators. (RCMP)

Explosive confessions made to RCMP by an accused killer will not be allowed into evidence at his murder trial, because RCMP failed to grant the man a washroom break.

Joshua Frank and Jason Klaus each face three counts of first-degree murder in the December 2013 deaths of Gordon, Sandra and Monica Klaus.

Both men were questioned at length by the RCMP after they were arrested. The videotaped sessions were played during voir-dire hearings in a Red Deer courtroom so that Justice Eric Macklin could determine if the statements were made voluntarily and are therefore admissible.

Klaus's statements were all admitted as evidence.

But on Friday morning, Macklin determined that key portions of Frank's statements were inadmissible ​the RCMP denied him a bathroom break.

No bathroom break

On Aug. 16, 2014, Frank was questioned throughout the day and into the evening by Staff Sgt. Joshua Graham and Cpl. Joaney Paradis.

The third session began at 6:11 p.m. After just over two hours, while Frank was alone in the interview room, he said, 'Oh, I've got pee.' "

Shortly before 9 p.m, Frank asked the officers: "Would it be too much to ask for a pee break?"

Asked if he could "hang on for a sec," Frank said he could.

"It's getting kind of bad again, just because I haven't hardly eaten anything in the last couple days," he told the investigators. "Everything I drink seems to go right through me."

The interview continued. Over the next hour, Frank asked four more times to use the washroom.

During that time, Frank also tearfully revealed to officers he had been sexually abused by Jason Klaus over a three-year period, beginning when he was 14 years old.

Frank confessed he shot Gordon, Sandra and Monica Klaus, but did so with Jason Klaus pointing a gun at him.

All videotaped statements made by accused killer Jason Klaus will be admitted into evidence. (RCMP )

A bathroom break was finally granted shortly before 10 p.m., after Frank made those admissions.

In his seven-page written decision, Macklin called the delay "unreasonable" under the circumstances.

"Reasonable access to a washroom, like provision of food, is a fundamental physical necessity that must be accommodated and arranged by the police for interviewees," he wrote.

Seen holding his stomach

The judge also noted that the videotape showed Frank holding his stomach after making a fourth request to use the washroom. It was a pivotal moment in the interrogation.

"He was questioned on substantive and deeply personal matters" Macklin wrote, "and provided previous undisclosed information. He may have concluded from the delay that access to a washroom was contingent on 'giving something' to the interviewers or agreeing to their leading questions.

"He may have chosen to speak and offered statements in response to sometimes leading questions, simply in order to allow him to get to the washroom as soon as possible."

Macklin said he was left with a reasonable doubt that anything Frank said was voluntary after he was first denied a bathroom break. He determined the videotaped statements Frank made the following day to investigators were also inadmissible.

Next week, Macklin will hear more voir dire evidence gathered during an undercover Mr. Big sting.


Janice Johnston

Court and crime reporter

Janice Johnston is an investigative journalist with CBC Edmonton who has covered Alberta courts and crime for more than three decades. She won a national Radio Television Digital News Association award in 2016 for her coverage of the trial of a 13-year-old Alberta boy who was acquitted of killing his abusive father. You can reach her at janice.johnston@cbc.ca.