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R v Tessier: Police Caution & The Confession Rule - Vicky Liu

R v Tessier: Police Caution & The Confession Rule

The recent case of R v Tessier explored the issue of when the police are required to caution individuals about their right to remain silent and the consequences of speaking to authorities.[1] Unfortunately, in Tessier, the Supreme Court adopted a narrow suspect/non-suspect divide in addressing the issue on caution. The framework adopted in Tessier may give rise to several problems that the court sought to prevent in the first place.

In this blog, I will discuss the decision of the Supreme Court of Canada in R v Tessier, examine the role of police caution in relation to the modern confession rule, and address the dangers associated with the majority’s approach in Tessier.

R v Tessier: The Facts

On March 16, 2007, Allan Berdahl was discovered dead in a ditch. On the following morning, the police contacted Mr. Tessier, who agreed to visit the RCMP station for an interview.[2] The interview was conducted in a room, and Mr. Tessier was not cautioned about his right to remain silent or the possibility that his statements might be used as evidence at trial. Mr. Tessier was advised that the RCMP was investigating Mr. Berdahl’s homicide.[3] During the interview, Mr. Tessier provided biographical information about the victim, his relationship to the victim, and his whereabouts leading up to the victim’s death.[4] Further, the police requested a DNA sample from Mr. Tessier, but Mr. Tessier declined to provide the DNA sample.[5] Following the interview, a police surveillance team was ordered to observe Mr. Tessier.[6]

Soon after the first interview, Mr. Tessier returned to the station to provide additional information.[7] During the second interview, Mr. Tessier informed the officer that he had recently obtained a firearm from a shooting range. Mr. Tessier then invited the officer to visit his apartment to confirm that the firearm was still in his possession. However, the officer did not find any guns inside the gun case at Mr. Tessier’s apartment.[8] At this point, the officer read Mr. Tessier his rights and cautioned him.[9]

Could Mr. Tessier claim that his statements from the initial interviews were involuntary and thus inadmissible at trial on the basis that the police questioned him without first providing caution?[10]

The Modern Confession Rule and R v Oickle

R v Oickle set out the modern confession rule,[11] which held that “a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness.”[12] In R v Oickle, a flexible and contextual approach was adopted in conducting analysis under the confession rule.[13]

R v Oickle recognized four factors that should be considered to determine whether a statement is voluntary:

1. Whether the person in authority made any inducements, such as threats or promises;

2. Whether the person in authority engaged in oppressive conduct;

3. Whether the accused had an operating mind at the time of the police interview; and

4. Whether the person in authority engaged in acts that would “shock the community”[14]

The first three factors – inducement, oppression, and lack of operating mind – are to be considered together in addressing the question of voluntariness.[15] On the other hand, the final factor on police trickery is a distinct category with the objective of “maintaining the integrity of the criminal justice system.”[16] In order for a statement made to a person in authority to be admissible at trial, the Crown must establish beyond reasonable doubt that none of the four factors overwhelmed an accused’s will in making the statement.[17]

R v Tessier: The Decision of the Supreme Court of Canada

In a 7-2 split decision, the SCC held that despite the absence of a police caution, Mr. Tessier’s initial interview statements to the police were voluntary and thus admissible as evidence at trial.[18]

A. Majority Decision

The majority established a framework for addressing the accused’s voluntariness claim in relation to a police caution. First, the court must determine whether the accused was a suspect by asking “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.”[19]

Where the interviewee was found to be a suspect, the absence of a police warning is “prima facie evidence of an unfair denial of the choice to speak to the police.”[20] However, the lack of caution does not automatically result in involuntariness, contextual analysis is required.[21] The Crown may consider the different Oickle factors as well as other considerations on voluntariness, such as the accused’s understanding of their right to silence and the consequences of speaking.[22] The Crown may discharge its burden, if it proved beyond a reasonable doubt that based on the entire context of the case, the accused’s statements were voluntary.[23]

In R v Tessier, the majority determined that it was reasonable to consider Mr. Tessier a suspect at the time of the initial interviews[24]. However, the majority held that the Crown has proven beyond a reasonable doubt that the statements made by Mr. Tessier during the initial interviews were voluntary by showing that Mr. Tessier had an operating mind and that there was no inducement, oppression, or trickery from the police. Further, the records also demonstrated that Mr. Tessier was aware of the consequences of speaking.[25]

On the other hand, where the interviewee was not a suspect or a detainee, police caution is typically not required to prove voluntariness.[26]

B. Dissent Decision

The two dissenting justices applauded the majority’s recognition that the absence of a police caution to “suspects” is prima facie evidence that the suspects were unfairly denied their choice to speak to the police.[27] However, the dissent adopted an expansive approach that sought to require the police to caution all individuals at the outset of a police interview, not just the suspects. According to the dissent, in order to truly protect an individual’s meaningful choice to speak, the police are required to provide warning to all individuals at the outset of all interviews.[28] Specifically, at the beginning of all interviews, the police must caution the interviewees that they are “not obliged to say anything, but that anything said can be used in evidence.”[29] This simple warning consists of a single sentence and “sets the necessary foundation for voluntariness and enhances the fairness of the process.”[30]

Implications of R v Tessier: A Failed Attempt to Expand the Confession Rule

On its face, it seems like the majority endorsed a move to expand the confession rule protection for suspects through its claim that “the absence of a caution for a suspect constitutes prima facie evidence that they were unfairly denied their choice to speak to the police.”[31] In reality, the majority’s goal is undermined by the possibility that the Crown may still discharge its burden through the Oickle test where the police fail to warn a suspect. Reserving the Oickle test as a backup solution reduces the Oickle factors to “an exhaustive and determinative checklist for satisfying the Crown’s burden”[32] rather than a protective mechanism for the uninformed suspects. Leaving the Oickle test intact in cases where the police fail to caution a suspect seems to protect the police from their failure to provide caution.

Further, the majority claimed that a requirement that police warn all individuals at the outset of an interview is “an unworkable standard […] would unduly limit the broader societal interest.”[33] This statement is illogical. The requirement that the police provide caution to all interviewees benefits both the interest of society and all individuals involved in a police investigation. It takes the police less than a minute to provide caution, but it takes extensive time and resources for the court to determine the voluntariness of a statement after the fact, thus placing a strain on the justice system. Additionally, the requirement ensures that all interviewees, not just suspects, understand their rights and the consequences of speaking.

It is clear that the majority’s position, while laudable in theory, may not reflect its desired goal in practice.

[1] R v Tessier, 2022 SCC 35 at paras 1-112 [Tessier]. [2] Ibid at para 14. [3] Ibid at paras 15-17. [4] Ibid at paras 17-18. [5] Ibid at para 19. [6] Ibid at para 20. [7] Ibid at para 21. [8] Ibid. [9] Ibid. [10] Ibid at para 38. [11] Joseph F Kenkel, Criminal Lawyers’ Trial Book (Toronto: LexisNexis, 2022) at 4.153. [12] R v Oickle, 2000 SCC 38 at para 68 [Oickle]. [13] See ibid at para 71. See also Sidney N Lederman, Michelle K Fuerst & Hamish C Stewart, The Law of Evidence in Canada, 6th ed (Toronto: LexisNexis, 2022) at 8.04. [14] See Oickle, ibid at paras 47-67. See also David M Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020) at 424-30 [Paciocco]. [15] See Oickle, ibid at para 63. See also Halsbury’s Laws of Canada (online), Evidence, “Statements by the Accused Person: The Confessions Rule: Statements to Person in Authority: The Meaning of Voluntariness: General” (V.3.(4)(a)) at HEV-128 “Overview of Voluntariness” [Halsbury’s Laws of Canada]. [16] See Oickle, ibid at para 65. See also Halsbury’s Laws of Canada, ibid. [17]Paciocco, supra note 14 at 426. [18] Tessier, supra note 1 at para 112. [19] Ibid at para 81. [20] Ibid at para 83. [21] Ibid at paras 72-79. [22] Ibid at para 89. [23] Ibid. [24] Ibid at para 90. [25] Ibid. [26] Ibid at para 78. [27] Ibid at paras 83-89. [28] Ibid at para 140. [29] Ibid at para 121. [30] Ibid. [31] Ibid at para 9. [32] Ibid at para 157. [33] Ibid at para 78.

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