R. v. Tessier, 2022 SCC 35

WHAT YOU NEED TO KNOW

- The absence of a police caution is not necessarily fatal to the voluntariness of a confession, it is just one factor to consider

- The significance of the absence of a police caution exists on a spectrum: less weight is given to the failure to caution for uninvolved individuals, and the highest weight is given to the failure to caution detained individuals. The circumstances in between involve the failure to caution a suspect.

- The first step to assess the significance of the failure to caution is to identify whether the person was a suspect or not. This is an objective test.

- If the trial judge concludes a person is a suspect, the absence of a caution is prima facie evidence of an unfair denial of the choice to speak to police but is not dispositive of the voluntariness issue. Crown must discharge its burden, beyond a reasonable doubt, that despite the unfairness occasioned by the failure to caution, taking all of the circumstances into account, the statement was still given voluntarily.

BACKGROUND

Allan Berdahl was found dead in a ditch in rural Alberta in March 2007. The police interviewed a number of people connected to the deceased to assist in their investigation as to who killed Mr. Berdahl. One of these people was the respondent in this appeal, Mr. Tessier, a friend of the deceased. Mr. Tessier attended the police station to be interviewed by Sergeant White. Sgt. White did not caution Mr. Tessier that he had the right to remain silent or that his statements could be used in evidence. Nor did he speak of the right to retain and instruct counsel under s. 10(b) of the Charter. He was similarly not advised that he was free to leave if and when he wanted. Over the course of his 105-minute interview, Mr. Tessier provided details about the victim, his relationship to him and his own movements in the days leading up to the death. Mr. Tessier gave a second interview with police later that same day. While he did not expressly confess to Mr. Berdahl’s murder, his answers to various questions included incriminating comments. Mr. Tessier was eventually charged with the first degree murder of Mr. Berdahl. He was later convicted by a jury.

RULING(S) BELOW

At trial, the Crown sought to adduce certain comments from Mr. Tessier’s interviews to establish his guilt. A pre-trial voir dire was held to determine the admissibility of Mr. Tessier’s statements. The trial judge concluded that the statements had been made voluntarily and wrre thus admissible. There were no threats, promises or inducements by the police. Mr. Tessier had a sound, operating mind: he was not impaired by drugs or alcohol, nor suffering from a mental disability. Moreover, Mr. Tessier was not a suspect at the time of the interviews, nor was he arrested or detained. The trial judge further concluded that Mr. Tessier had not been psychologically detained and was therefore not entitled to the various protections under s. 10 of the Charter. Ultimately, the trial judge admitted the statements.

Mr. Tessier appealed his conviction to the Alberta Court of Appeal. On appeal, he argued, amongst other things, that the trial judge made legal errors with regards to his application of the confessions rule to Mr. Tessier’s statements. The Court of Appeal agreed, allowed Mr. Tessier’s appeal and ordered a new trial.

ISSUES ON APPEAL

This appeal raises two issues:

(1)    In the pre-detention phase of the investigation, how did the absence of a caution during police questioning affect the voluntariness of Mr. Tessier’s statements under the confessions rule?

(2)    Was Mr. Tessier psychologically detained in breach of his Charter rights, and, if so, what impact did that have on the admissibility of his statements?

This summary is focused on the first issue. In relation to the latter issue, the majority concluded that Mr. Tessier was not psychologically detained and, as a result, his Charter rights were not triggered. There, therefore, could be no breach of his right to counsel.

Majority – Kasirer J.

CONFESSIONS RULE & VOLUNTARINESS

Generally

The confessions rule protects the right to silence at all times during an investigation, regardless of whether the individual is being detained. A confession is not admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness: R. v. Oickle. The Crown bears the burden of proving the voluntariness of a statement beyond a reasonable doubt. This inquiry is contextual and fact-specific; it requires the trial judge to consider, amongst other things, the making of threats or promises, oppression, the operating mind doctrine and police trickery. Ultimately, the trial judge must determine whether the statements made by an accused were reliable, and whether the conduct of the state in any way unfairly deprived the accused of their choice to speak to a person in authority.

This rule essentially strives to balance the rights of an accused to remain silent and not self-incriminate, and the legitimate law enforcement objectives of the investigation of crime. The rule is also animated by reliability and fairness concerns. A statement may be excluded as involuntary because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence.

The Significance of the Absence of a Caution

Police should generally caution suspects during investigative questioning as to their right to silence so they can make a meaningful choice as to whether to speak to police. However, this is not a bright line rule.  The absence of a caution is not determinative of whether a statement is voluntary but is an important factor to consider amongst many. The absence of a caution does not in itself raise concerns that the statement or confession is unreliable. Rather, the lack of caution generally speaks to fairness concerns, in the sense that the absence of a caution may unfairly deprive someone of being able to make a free and meaningful choice to speak to police when, as a suspect, they are at risk of legal jeopardy.

The majority expressly rejects the position that the absence of a police caution should be determinative of voluntariness as this would risk inhibiting legitimate investigative techniques. Even in the absence of a caution, the circumstances of a particular confession may nevertheless indicate that a person has freely chosen to speak to police.

Rather, the significance attached to the failure to caution will fall on a spectrum:

• At one end, the failure to caution an uninvolved individual in an investigation will typically carry negligible weight.

• At the other end, the failure to caution a detained individual will carry significant consequences given the vulnerability and jeopardy faced by detainees. Fairness in these situations commands they be cautioned of their right to counsel and their right to remain silence so they can make an informed decision as to whether or not to participate in the investigation. While the absence of a caution of a detained person is not determinative of voluntariness, the weight attached to the failure to caution will be at the highest end.

• In the circumstances in between, namely where police do not caution a suspect who is not detained, the lack of caution is not necessarily fatal but an important factor in determining voluntariness. The weight this factor carries will depend on the circumstances of the particular statement.

Determining Whether an Individual being Questioned is a Suspect

The first step in assessing the significance of the absence of a police caution is therefore to identify whether or not a person was a suspect.

To determine whether the individual being questioned is a suspect, the trial judge must determine:

“whether there were objectively discernable facts known to the interviewing officer at the time of the interview which would lead a reasonably competent investigator to conclude that the interviewee is implicated in the criminal offence being investigated.”

Once the trial judge concludes that a person was a suspect, the absence of a caution is prima facie evidence of an unfair denial of the choice to speak to police but is not dispositive of the ultimate issue of voluntariness. In order to meet its burden to prove beyond a reasonable doubt that a statement was voluntary, the Crown will need to overcome this prima facie evidence of unfairness to establish the statement was given voluntarily. 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, 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.

Application to the Facts of this Case

Mr. Tessier was clearly a suspect: he faced pointed, adversarial questioning by police. The failure of Sgt. White to caution Mr. Tessier raises prima facie proof of unfairness. As a result, the Crown had to satisfy the court that the statement remained nonetheless voluntary. The majority concluded that Mr. Tessier had an operating mind and was not otherwise tricked into answering police questioning. He knew that the interview was being recorded, that what he said could be used as evidence, and that he could choose not to cooperate with police. For example, he made a number of positive assertions during the interview that he would not cooperate.

As a result, the majority concluded that Mr. Tessier’s statements were voluntary and therefore admissible: Mr. Tessier exercised a free choice to speak to Sgt. White and was not unfairly denied his right to silence.

Dissent – Brown and Martin JJ.

In the dissent’s view, in order to ensure that individuals are making a free and meaningful choice to speak to police, police should provide a caution at the outset of all interviews, not just interviews of suspects or detainees. It cannot be assumed that people interacting with police know that they may remain silent or that what they say can be used in evidence.

Any interview conducted without a caution should be deemed presumptively involuntary, and the presumption should be more difficult to rebut where the individual is a suspect or detained (i.e. where the interviewee’s risk of self-incrimination is heightened). The Crown may rebut this presumption by establishing that interviewees otherwise knew they had a right to remain silent and that anything they said could be used in evidence.

Requiring a caution for all interviews corrects any informational imbalance between the individual and police and allows interviewees to make an informed, meaningful choice as to whether they want to speak to police. It also provides police with a clear, bright-line rule which requires officers to consider the status of the interviewee at various points of time (i.e. uninvolved versus suspect versus detainee). Providing a basic caution at the outset allows authorities to proceed without fear that an interview will yield involuntary and therefore inadmissible statements.

As to the application to the facts of this case, the dissent concluded that Mr. Tessier’s statements were not voluntary. He was not provided a caution. The police initiated contact with Mr. Tessier to secure information about a homicide investigation. He was subjected to pointed, adversarial questioning as a suspect. A caution was required in the circumstances and the Crown failed to adduce any compelling evidence demonstrating that Mr. Tessier was aware of his right to remain silent or in a position to make a meaningful choice about whether or not to speak to police.

Read the full decision here.

For more information on the voluntariness of confessions, check out Emond’s Modern Criminal Evidence, chapter 10, Confessions and Self-Incrimination.