R. v. Tessier 2022 SCC 35 - Case Summary

The Supreme Court of Canada considers the common-law confessions rule/voluntariness in the absence of police caution, in the context of persons not yet suspected of an offence.

Who

• In March 2007, police locate a deceased victim in a ditch near a rural Albertan town, later established to have been killed by gunshot wounds to the head.

• Tessier is interviewed by police the same day and makes two statements, including taking an RCMP officer to his home to show them a lawfully owned gun. The gun is discovered missing.

• Tessier is arrested for the murder 8 years later in 2015, after his DNA is found on a cigarette butt near the deceased.

What

• Police do not provide Tessier with a “police caution” - they do not notify him of his right to silence or that his words or actions could be used against him - prior to his statements, on the basis that he was not yet a suspect in the murder.

• Tessier does not make a confession, but he provides information linking himself to the homicide. The trial judge allows the statements to go before the jury, which the Crown uses to cast doubt on his credibility.

Where

• The trial is held in the Alberta Queen’s Bench (ABQB) by judge & jury. The jury finds Tessier guilty of first degree murder.

• Tessier appeals to the Alberta Court of Appeal (ABCA). The Court overturns the conviction and orders a new trial, on the basis that the trial judge did not properly consider if Tessier’s statements were “voluntary”.

• The Crown appeals to the Supreme Court of Canada (SCC). The SCC overturns the ABCA 7-2, and the original conviction is upheld.

Why

• The “common law confessions rule” states:

A statement given to a person in authority, including police, is presumptively inadmissible UNLESS the Crown can prove it was given voluntarily.

• The rule is based on three underlying values:

  • (1) Reliability of statements

    • Involuntary statements are more likely to be unreliable (R v. Oickle, 2008 SCC 38, at para 32)

  • (2) Trial fairness

  • (3) Meaningful choice about whether to respond to police inquiries

    • Protection of the right to silence

• A “police caution” requires the police to inform a suspect of (a) their right to remain silent, and that (b) anything that say or do may be used by the police against them.

  • If no police caution is provided, but a suspect is allowed to speak with legal counsel, it may be enough for a statement to still be found voluntary.

• Absence of a police caution for a suspect, is prima facie evidence of a voluntariness issue with a statement, but does not necessarily mean a statement was involuntary.

  • The Crown must then show that either (a) the accused was only a mere witness and not yet a suspect, and/or (b) that the absence of a caution was “without consequences” (para 9).

The Gist

• Voluntariness asks “whether the statements made by the accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority” (para 68).

• The burden always rests with the Crown to prove, beyond a reasonable doubt, that pre-detention statements were voluntary (para 39).

  • Voluntariness still involves the consideration of “the making of threats or promises, oppression, the operating mind doctrine and policy trickery”

    • These factors are not an exhaustive checklist (para 68)

• The case is boiled down to its basics at para 89:

… When an accused brings a voluntariness claim with respect to police questioning that did not include a caution, the first step is to determine whether or not the accused was a suspect. If the accused was a suspect, the absence of a caution is prima facie evidence of an unfair denial of choice but not dispositive of the matter. It is credible evidence of a lack of voluntariness that must be addressed by the court directly…However, the absence of a caution is not conclusive and the Crown may still discharge its burden, if the totality of the circumstances allow. The Crown need not prove that the accused subjectively understood the right to silence and the consequences of speaking, but, where it can, this will generally prove to be persuasive evidence of voluntariness. If the circumstances indicate that there was an informational deficit exploited by police, this will weigh heavily towards a finding of involuntariness. But if the Crown can prove that the suspect maintained their ability to exercise a free choice because there were no signs of threats or inducements, oppression, lack of an operating mind or police trickery, that will be sufficient to discharge the Crown’s burden that the statement was voluntary and remove the stain brought by the failure to give a caution.

The SCC states that there must a balance between police investigative powers and the rights of the accused. As example, they refer to police talking to bystanders on the street who are possible witnesses to a crime, and state that there is nothing unfair about police talking to these individuals without a police caution.

The issue is worth considering from an alternate perspective of individual privacy: why shouldn’t the police be required to advise everyone of their rights? How does an individual knowing their rights, wrongly interfere with police investigation?