The Duty to Inform and its Impact on Fairness: R v Tessier and R v Tayo Tompouba

By: P.R.

Introduction

Judges and police officers are held to a higher standard, expected to uphold fairness and apply discretion with integrity. Yet, when they fail to inform individuals of their rights, the fairness of the entire judicial process is called into question.

This tension lies at the core of R v Tessier (2022 SCC 35) and R v Tayo Tompouba (2024 SCC 16). Although these cases arise from different stages of the criminal process–one at the investigative level (a police interview), the other within the courtroom–they converge on the same evidentiary issue: how does a failure to inform affect the fairness of the judicial process?

To explore this question, I will examine the duty to inform through two analytical contexts: (1) the investigative duty to inform, where police are responsible for ensuring that an individual’s decision to speak is voluntary (R v Tessier), and (2) the judicial duty to inform, where judges must ensure that an accused understands their language rights (R v Tayo Tompouba).

Examining both cases through these contexts provides a greater understanding of how the duty to inform - whether by police or by judges - is a guiding principle that sustains fairness at every level of the criminal process.

Investigative Duty to Inform - R v Tessier

In R v Tessier, the Supreme Court of Canada (SCC) examined what happens when police question a suspect without advising them of their rights. The individual, Russell Steven Tessier, voluntarily went to the police station after his friend was found dead and spoke without being cautioned that he had the right to remain silent or that his statements could be used in court.^[i] The key issue was whether his statements were voluntary and therefore admissible under the confessions rule.^[ii]

The SCC affirmed that “statements resulting from police questioning are valuable, provided they are reliable and fairly obtained.”^[iii] Voluntariness remains the confession rule’s “touchstone,” protecting against threats, promises, or “police trickery that unfairly denies the accused’s right to silence.”^[iv] While noting that officers are “well advised to give the police caution” even when no arrest has occurred,^[v] the majority found that the absence of a caution was an important but not a crucial factor.^[vi] This reasoning raises an important fairness concern: if a person does not know they have a right to remain silent, can their choice to speak truly be voluntary? In effect, Tessier suggests that police are not strictly required to give a caution for a statement to be admissible. That approach weakens the investigative duty to inform by transforming what should be a safeguard for the public into a matter of police discretion.

Judicial Duty to Inform - R v Tayo Tompouba

In R v Tayo Tompouba, a bilingual Francophone man was tried and convicted in English without being told that he had the right, under section 530(3) of the Criminal Code, to have his trial in the official language of his choice. The main issue centered on whether the judge’s failure to inform the accused of this right made the proceeding unfair–meaning that it affected the accused’s ability to have equal access to a public service.^[vii] The SCC found that it did. The SCC confirmed that a judge’s duty to inform is not a mere formality but a significant element of ensuring fairness in the proceeding. This was reflected in the majority’s reasoning: judges must ensure an accused person is told about their language rights and, “if they have the slightest doubt,” must take steps to confirm that the person understands them.^[viii] This “informational duty” ensures that an accused person can make a genuine and informed choice about how their trial will proceed.^[ix] Because the trial judge did not meet this duty, the Court presumed that the accused’s right to be tried in the language of his choice had been violated, thus creating a presumption of prejudice.^[x] This so-called presumption of prejudice means the Crown must then prove that the mistake did not in fact cause such prejudice to the accused.^[xi] The Crown could not do so–it could not show that the accused was aware of his right or would have chosen an English trial even if informed.

Tayo appears to strengthen the judicial duty to inform and links it to an idea of fairness. The SCC made it clear that a judge failing to tell an accused about their rights is a serious error that undermines the legitimacy of a trial.

Taken Together: A Comparative Critique of R v Tessier and R v Tayo Tompouba

Although R v Tessier and R v Tayo Tompouba deal with different stages of the criminal process, they both raise the same essential question: how does a failure to inform affect the fairness of the judicial process?

In R v Tessier, the SCC had to decide whether statements made without a police caution could still be considered voluntary. The SCC acknowledged that a statement could still be admissible even if the accused was never told they had the right to stay silent. The problem is that this interpretation weakens what the confessions rule is meant to protect. As R v Oickle reminds us, “voluntariness is the touchstone of the confessions rule,” and the law exists to guard against “police trickery that unfairly denies the accused’s right to silence.”^[xii] The majority in Tessier effectively treated the caution as helpful but not essential–a view that assumes people understand their rights even when they are not told about them. But as R v Singh makes clear, the choice to speak or remain silent only has meaning when the person knows that choice exists.^[xiii] I agree with the dissent in Tessier–it captured this point best, stating that “a meaningful choice is an informed choice.”^[xiv] I believe the police could have avoided any issues by simply throwing in the line: “...by the way, you have the right to remain silent.” That one sentence would have satisfied the duty to inform and reinforced the idea of fairness that our justice system aims to uphold–something that the ruling in Tessier seems to erode.

R v Tayo Tompouba, by contrast, reinforces what Tessier weakens. The SCC made it clear that a duty to inform is essentially non-negotiable. When the judge failed to tell the accused about his right to a trial in French, the SCC found that this tainted the trial court’s judgment. The decision can be read as clarifying how this duty interacts with the presumption that judges are presumed to know the law. Normally, courts assume that trial judges act in accordance with their legal duties. However, the Court in Tayo Tompouba clarified that this presumption cannot excuse a failure to inform. Judges must verify that the accused understands their rights, not merely assume compliance. Where vigilance is absent on the judge’s part, “bilingual status is purely symbolic.”^[xv] This is an important point about how the Court frames judicial responsibility. Earlier cases such as R v Burns noted that “trial judges are presumed to know the law with which they work day in and day out,”^[xvi] but Mazraani v Industrial Alliance clarified that knowledge alone is not enough–judges must take care to ensure that rights are understood^[xvii]

Tayo reflects this understanding, emphasizing that the presumption of judicial knowledge does not replace the need for vigilance. Judges are expected not only to know the law but to actively apply it in a way that ensures rights are communicated, not merely assumed.^[xviii]

Conclusion

R v Tessier and R v Tayo Tompouba both reveal an important principle: rights hold little value if individuals are never made aware of them. Each case, in its own way, demonstrated how the act–or omission–of informing individuals of their rights can affect the idea of fairness within our legal system.

In Tessier, the SCC adopted a more flexible approach, finding that a statement may still be considered voluntary even when a suspect is not expressly told of their right to remain silent. Tayo, by contrast, took a firmer stance, holding that a judge’s failure to inform an accused of their language rights directly affects their access to a fair proceeding. Together, the two cases expose how unevenly the duty to inform is applied, revealing that fairness can be weakened both at the investigative and judicial levels when the duty is not upheld.

Moving forward, the law needs greater consistency. Whether it is during a police interview or in a courtroom, individuals should be clearly informed of their rights and their practical meaning. Tessier and Tayo ultimately remind us that fairness is not achieved by the mere existence of rights, but by ensuring that everyone is fully informed and able to exercise them.

Image Description: A cartoon illustration shows a young man with handcuffs, surrounded by three police officers, highlighting themes of law enforcement and authority.

Endnotes:

^[i] R v Tessier, 2022 SCC 35 at para 1 [Tessier], online:https://canlii.ca/t/jscm0

^[ii] Ibid at para 3.

^[iii] Ibid at para 74.

^[iv] R v Oickle, 2000 SCC 38 at para 69 [Oickle], online: https://canlii.ca/t/525h

^[v] Tessier, supra note i at para 5 quoting R v Singh, 2007 SCC 48 at para 33.

^[vi] Ibid at para 73.

^[vii] R v Tayo Tompouba, 2024 SCC 16 at pars 25–26 [Tayo], online: https://canlii.ca/t/k4f3g

^[viii] Ibid at para 43.

^[ix] Ibid.

^[x] Ibid.

^[xi]Ibid at para 128.

^[xii] Oickle, supra note iv.

^[xiii] R v Singh, 2007 SCC 48 at paras 35–53, online: https://canlii.ca/t/1tf56

^[xiv] Tessier, supra note i at para 140.

^[xv] Mazraani v Industrial Alliance Insurance and Financial Services Inc, 2018 SCC 50 at para 28 [Mazraani], online: https://canlii.ca/t/hw3st

^[xvi] R v Burns, 1994 CanLII 127 (SCC), online: https://canlii.ca/t/1frvk

^[xvii]Mazraani, supra note xv at para 10.

^[xviii] Tayo, supra note vii at para 44.