A Caution-ary Tale: R v Tessier and the Impact of the Absence of Police Cautions on the Admissibility of Statements Under the Confessions Rule

Authors: Kaitlyn Mitchell and Riley O’Hara

Introduction

The admissibility of statements made to police has been widely debated in the legal community. Due to previous police misconduct during interrogations, the Supreme Court of Canada (“SCC”) developed a common law rule to determine the admissibility of these statements to persons of authority, such as the police, called the “confessions rule.” The Court also provided the development of a police caution—a warning given to individuals being interviewed by police informing them of their right to silence and against self-incrimination. However, what happens when police do not caution a suspect before questioning and the Crown subsequently seeks to admit statements made during questioning as evidence for trial?[1] In R v Tessier (“Tessier”), the Court found the absence of a caution prior to questioning as not determinative of the voluntariness—and thus the admissibility—of a statement made by a suspect during questioning, though such absence is not without consequence.[2]

The Court’s rationale that the absence of a police caution should not be determinative when assessing voluntariness under the confessions rule provides crucial guidance to police. It clarifies when a caution should be provided without imposing a bright-line rule requiring a caution in every instance. This decision strikes a balance between respecting the fairness aspect of the confessions rule with the truth-seeking function of a criminal trial. By providing an elevated burden on the Crown in instances where a caution is absent prior to questioning a suspect, the Court emphasized the importance of cautions without placing an unnecessary and significant obstacle in the way of police investigations.

R v Tessier: Fact Summary

Tessier centered around whether it is necessary for police to caution individuals of their right to silence and counsel when questioning them and, when no caution is given, whether statements made as a result can still be admissible.[3] Mr. Tessier’s friend was found dead in 2007 and police requested that Mr. Tessier, along with the victim’s other friends, come to the police station for questioning regarding his death.[4] Mr. Tessier came in willingly and spoke to police, during which he understood that the conversation was being recorded.[5] The police did not, however, caution him of his right to silence or to retain counsel before commencing with questioning.[6] He was asked by police to provide a DNA sample, but he declined.[7] Later, Mr. Tessier returned to the station to provide additional information, informing  police about a gun he had obtained. He requested an officer to accompany him to his apartment to confirm the gun was still in his possession.[8] However, once there, Mr. Tessier showed police the gun case, but the gun itself was missing.[9]

The Confessions Rule

The confession rule acts to prevent the admission of unreliable statements and protect the accused’s rights to silence and counsel. When raising the issue of voluntariness regarding the accused’s statements, the defence must demonstrate evidentiarily that the accused made their statements to an individual they reasonably believed to be a person of authority.[10] Once this evidentiary burden is met, the Crown must prove beyond a reasonable doubt that the accused’s statements were made voluntarily in order for the statement to be admissible in court.[11] The voluntariness of a statement cannot be found where the accused’s will was overborne by circumstances such as inducement via promises or threats, oppressive conditions, a lack of an operating mind, or the use of police trickery at the time the statements were made.[12] 

Threats and Promises

Incriminating statements made by the accused due to promises of leniency or threats of harm cannot be considered voluntary but are instead viewed as a means to seek lenience or self-preservation. Thus, statements made under these conditions are not held to be reliable. To determine if statements have been inappropriately induced to the extent that the statement is involuntary, it is important to “look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.”[13] In Tessier, based on recordings of the questioning conducted by police, the Court determined the statements had not been induced by threats or promises.[14]

Oppression

The oppression portion of the confessions rule refers to the creation of an atmosphere of oppression by way of less overt tactics than threats of violence or promises.[15] Some examples of oppression previously outlined by the SCC in R v Oickle include: (1) depriving a suspect of food, clothing, water, sleep, or medical attention; (2) denying access to counsel, and (3) excessively aggressive, intimidating questions for prolonged periods of time.[16] In Tessier, the Court found that the police had not conducted the interview in an oppressive manner, and thus this factor applied in favour of admissibility.[17]

Operating Mind

For the accused to have an “operating mind” sufficient for their statement to be voluntary under the confessions rule, the accused must have: (1) knowledge of what they are saying, and (2) knowledge that they are saying it to police officers who can use said statement to their detriment.[18] This factor was the primary focus of Tessier. Specifically, whether the absence of a caution from police impacted the accused’s operating mind such that the statement was not made voluntarily.[19] In Tessier, the Court found that the absence of a caution given to a suspect prior to questioning constituted prima facie evidence that the accused was unfairly denied their choice to speak to the police, resulting in a rebuttable presumption that the Crown has the burden of overcoming.[20] 

However, the Court declined to establish a caution as a mandatory requirement in all interrogations, noting that imposing a blanket requirement for a caution in all circumstances would unnecessarily hinder police investigations.[21] The Court also noted that instances where the individual being questioned is a suspect, the absence of a caution should be given greater weight against a finding of voluntariness than if the individual is merely being questioned as a witness.[22] In order to assess whether the absence of a caution was prima facie evidence as mentioned above, the Court found that a determination must be made as to whether the individual being questioned is a suspect or not.[23] In determining whether an individual is a suspect, the court must undertake an objective test which includes both an assessment of the objectively discernable facts known at the time and the interaction between police and the interviewee.[24] 

Once established that an individual is a suspect, the absence of a caution becomes prima facie evidence of an unfair denial of the choice to speak to police.[25] The Crown must then address and overcome the prima facie evidence of unfairness.[26] The Court stated that where the Crown could demonstrate that the accused was in fact subjectively aware of their right to silence or of the consequences of speaking, it is powerful evidence that the absence of a caution did not undermine voluntariness.[27]

Police Trickery

The consideration of police trickery refers to when police engage in conduct to deceive the accused into confessing that is so egregious it shocks the conscience of the community.[28] In Tessier, it was determined that “a deliberate tactic by the police to manipulate the individual into thinking that they are a mere witness and not a suspect so that, in making a statement, their jeopardy is not at risk” would constitute trickery that would impact the voluntariness of the accused’s statements.[29] However, there is a key distinction between misleading an individual about the extent of their jeopardy and intentionally withholding their status as a suspect as a means of strategic deception.[30] In Mr. Tessier’s case, it was determined that an absence of caution from the police was not a strategy to manipulate Mr. Tessier into making incriminating statements and ultimately, the statements he made were voluntary.[31]

Commentary

Through Tessier, the SCC clarified that while the absence of police caution is not ideal, it is not necessarily fatal to the Crown’s case in establishing that an accused’s statements were made voluntarily and are therefore admissible. This finding provides an avenue for police to question individuals without necessarily providing a caution, especially where issuing one may be unduly detrimental to an investigation or where a caution is deemed unnecessary because the individual was not a suspect at the time of questioning. It allows for flexibility in police investigations while protecting the inherent values of fairness and reliability that are integral to the confessions rule. The Court also emphasized that deliberately withholding a caution to manipulate suspects into making incriminating statements raises concerns under the police trickery aspect of the confessions rule.

In their dissent, Justices Brown and Martin argued that the presumption of inadmissibility in the absence of a caution should be extended to apply to any situation in which police initiate contact with an individual to secure information about a crime being investigated, not just where the individual is a suspect.[32] It is the position of Justices Brown and Martin that police must caution anyone to whom they speak about a crime if they wish to avoid a presumption of inadmissibility for the statements elicited.[33] One problem with this position as noted by the Majority is that, by providing guidance that police must caution everyone to whom they speak about a crime, it may inhibit their ability to investigate criminal activity.[34] Another unaddressed problem regarding this approach is its potential impact on an individual’s right against arbitrary detainment. If police provide a caution to an individual who is not legally required to be detained, the caution itself may contribute to a form of psychological detention. This risks placing individuals in arbitrary detention during an investigation, even when detention would not be required. The Majority’s decision to avoid implementing a bright-line rule imposing a caution to all those that interact with police not only avoids such impediments to police investigations, but ensures the analysis of a statement’s voluntariness remains contextual in nature under the confessions rule.[35]

police

[1] R v Singh, 2007 SCC 48, Charron J. [Singh] (“[...] even if the suspect has not formally been arrested and is not obviously under detention, police officers are well advised to give the police caution [...]” at para 32)

[2] R v Tessier, 2022 SCC 35 at para 12 [Tessier].

[3] Ibid at paras 1-2.

[4] Ibid at para 14.

[5] Ibid at para 15.

[6] Ibid.

[7] Ibid at para 19.

[8] Ibid at para 21.

[9] Ibid.

[10] R v Hodgson, [1998] 2 SCR 449 at para 37; for further details regarding who is thought to be a person of authority, see R v Hodgson at para 34.

[11] Ibid.

[12] R v Oickle, 2000 SCC 38 at para 68 [Oickle].

[13] Ibid at para 57.

[14] Supra note 2 at para 26.

[15] Oickle, supra note 12 at paras 27, 58.

[16] Ibid at para 60.

[17] Supra note 2 at para 102.

[18] Oickle, supra note 12 at para 63.

[19] Tessier, supra note 2 at para 8.

[20] Ibid at paras 8-9.

[21] Ibid at para 65.

[22] Ibid at paras 75-76, 80.

[23] Ibid at para 81.

[24] For further details regarding what elements are to be considered in determining whether an individual is a suspect, see Tessier, supra note 2 at para 82.

[25] Ibid at para 83.

[26] Ibid.

[27] Ibid at para 88; For a list of factors considered by the court, see R v Tessier at para 88.

[28] Oickle, supra note 12 at para 66.

[29] Supra note 2 at para 10.

[30] Ibid at para 87.

[31] Ibid at para 90.

[32] Ibid at para 190.

[33] Ibid at para 184.

[34] Ibid at para 65.

[35] Ibid.