For the want of a bathroom break a confession was lost.
A judge has ruled inadmissible a step-by-step description by accused triple-murderer Joshua Frank of how he shot three members of a Castor family to death in their beds in December 2013.
In a ruling released on Friday, Red Deer Court of Queen’s Bench Justice Eric Macklin says RCMP interviewers waited too long to grant Frank, 32, a bathroom break despite his repeated requests.
Frank and co-accused Jason Klaus have been accused of killing Klaus’s parents and sister and burning the family farmhouse down on Dec. 8, 2013.
They were arrested and each charged with three counts of first-degree murder on Aug. 15, 2014. Both men were interviewed for hours at a time by police in separate rooms at the Red Deer RCMP detachment.
The day after his arrest, Frank was two hours into an interview when he mentioned he needed to “pee.” But it would be four hours before he got his bathroom break.
Macklin says the delays in allowing Frank to relieve himself “may have led him to believe that he had no option but to co-operate further in the interview if he wanted a washroom break.
“Reasonable access to a washroom, like provision of food is a fundamental physical necessity that must be accommodated and arranged by police for interviewees,” he says.
As a result, the Crown has not established beyond a reasonable doubt that any statements Frank made after his second bathroom request three hours and 14 minutes into the interview were made voluntarily, says Macklin in his seven-page judgment.
In a videotaped interview the day after his arrest Frank tearfully told police he pulled the trigger and shot Gordon, Sandra and Monica Klaus to death in their beds on Dec. 8, 2013.
He said his co-accused Jason Klaus had sexually abused him when he was a teen and had threatened him with further abuse and death if he did not participate in the murders at the Klaus farmhouse just outside Castor.
However, defence lawyers for Frank argued that RCMP interviewers had created an “atmosphere of oppression” in the interviews and Frank’s statements should be ruled inadmissible.
In his ruling, Macklin focused on the third interview with Frank after his arrest. It began shortly after 6 p.m. and lasted more than four hours.
Macklin notes that during the third interview Frank asked to go to the bathroom on seven separate occasions — at one point he was holding his stomach —before he finally got a bathroom break after three hours.
Macklin’s ruling means Frank’s dramatic statements about how he was coerced into the shootings can not be used as evidence in his trial.
A fourth interview, on Aug. 17 is also inadmissible because it arose out of Frank’s previous day’s statements, the justice ruled.
The decision was part of a voir dire, a trial within a trial, to determine the admissibility of evidence.
A similar voir dire was held for the statements Klaus made to police after his Aug. 15, 2014 arrest. Macklin ruled those statements admissible earlier in the trial.
Next week, a voir dire will take place on the evidence collected during an RCMP Mr. Big undercover operation in 2014 that led to the arrests of Klaus and Frank.
pcowley@reddeeradvocate.com
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