As Levi Cayen, a key witness in a first degree murder trial, took the stand without counsel of his own, the lawyer for his co-accused paused his questioning over concerns that Cayen appeared not to be aware of his rights.
Defence Lawyer John Hale is representing James Thomas, who is on trial in the N.W.T. Supreme Court for murder and robbery in the death of Alex Norwegian near Hay River in 2017.
Cayen is a key witness in Thomas's trial. He faces the same charges in Norwegian's death and has pleaded not guilty, but his trial is not until January, 2022.
"My concern is that you're saying things in court that could affect your own trial," said Hale.
Cayen appeared before the court, at first, without representation. Though his testimony has changed repeatedly since he was first arrested, on Friday he agreed with nearly everything the defence put to him.
During one line of questioning, Hale paused to ask Cayen whether he had been counselled by a lawyer on his rights.
Cayen said he hadn't.
Hale told the court "it's not clear" whether Cayen understood his rights under section 13 of the Charter of Rights and Freedoms, which states that a witness testifying has the right not to give incriminating evidence against themselves.
This right exists in Canada so that the courts can gather witness evidence with the caveat that "incriminating" evidence cannot be used against the witness in other proceedings.
There are exceptions, for a prosecution for perjury or for the giving of contradictory evidence.
Cayen was briefly removed from the courtroom, before a judge decided Cayen had sworn an oath, that his lawyer was aware he was testifying, and that he could continue to provide testimony.
Cayen's statements to police and the courts have been conflicting — first, he said he was never at the portage, then, that he was there with James Thomas, then that it was a lie and he acted alone.
On Friday, Cayen went back on his statement once again, and confirmed during cross-examination and without his own lawyer present, that he arrived by snowmobile with Thomas, opened and closed a gate, and that he "probably" smashed out Norwegian's car windows.
Cayen appeared to agree with nearly every aspect of the defence's theory of what happened that night, despite flip-flopping in earlier testimony.
"The things you've said … have varied significantly over time," Hale said.
"Yeah," replied Cayen.
When asked about an affidavit sworn at his bail hearing, Cayen said he doesn't remember testifying.
Cayen said he's suffered memory loss and neurological problems since being attacked by another inmate at the North Slave Correctional Complex, where he has been held since his arrest.
He went to Stanton Territorial, had staples for his injury and was released shortly after. Cayen said he had no follow up treatment because, based on past experiences being treated for minor injuries at the jail, he's skeptical they would be able to treat a brain injury.
Cayen explained that since the incident, he's been unable to remember certain details and needs reminding.
On Friday Cayen said he had "a little bat" and that he "might have" smashed the windows of Norwegian's vehicle but he "didn't think there was a plan."
Cayen said it was "possible" that he was attacking Norwegian while Thomas searched the vehicle and replied "yup" when asked if he had kicked Norwegian in the head.
He was also "pretty sure" he and Thomas left by snowmobile but wasn't clear if he saw Norwegian get his car stuck in a snowbank, which is where he was eventually found dead.
Hale told Cayen that he was at liberty to disagree with statements he put to him and that the court was interested in finding the truth.
Crown lawyer Duane Praught said that Cayen's first statement to police is "the only … direct evidence of what happened at the portage that night."
That statement is admissible in court.
The trial for James Thomas continues in Yellowknife this week, with further cross-examination of Cayen.