R. v. Tessier

R. v. Tessier
Collection
Supreme Court Judgments
Date
2022-10-14
Neutral citation
2022 SCC 35
Case number
39350
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Alberta
Subjects
Constitutional law
Criminal law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Tessier, 2022 SCC 35
Appeal Heard: December 6, 2021 Judgment Rendered: October 14, 2022 Docket: 39350
Between:
His Majesty The King Appellant
and
Russell Steven Tessier Respondent
- and -
Attorney General of Ontario, Attorney General of New Brunswick and Canadian Civil Liberties Association Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 112)
Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe and Jamal JJ. concurring)
Joint Dissenting Reasons: (paras. 113 to 214)
Brown and Martin JJ.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
His Majesty The King Appellant
v.
Russell Steven Tessier Respondent
and
Attorney General of Ontario,
Attorney General of New Brunswick and
Canadian Civil Liberties Association Interveners
Indexed as: R. v. Tessier
2022 SCC 35
File No.: 39350.
2021: December 6; 2022: October 14.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal of alberta
Criminal law — Evidence — Admissibility — Confessions rule — Voluntariness — Caution — Police not cautioning individual during interviews in connection with murder investigation about right to remain silent and consequences of speaking to authorities — Individual later charged with first degree murder and seeking exclusion of statements made to police as involuntary — Trial judge admitting statements as voluntary despite lack of caution — Whether absence of caution during police questioning of individual affected voluntariness of statements under confessions rule — Whether statements admissible at trial.
Constitutional law — Charter of Rights — Detention — Right to counsel — Police questioning individual at police station in connection with murder investigation — Police not informing individual of right to obtain and instruct counsel without delay — Individual claiming psychological detention and seeking exclusion of statements at first degree murder trial as having been obtained in violation of right to counsel — Whether individual was psychologically detained such that statements should be excluded at trial — Canadian Charter of Rights and Freedoms, s. 10(b) .
When the victim was found dead in a ditch by a rural road, the police immediately sought out several individuals connected to him for interviews, including his friend, the accused, who agreed to come to the station. The police did not caution the accused that he had the right to remain silent or that his statements could be used in evidence, nor was he informed of the right to retain and instruct counsel under s. 10(b) of the Charter . Over the course of the interview, the accused provided details about the victim, his relationship to him, and his own movements in the days leading up to the death. During a second interview later that same day, the accused revealed having recently retrieved a firearm from a shooting range. The accused asked the police to come to his apartment to confirm that the firearm was still in his bedroom closet, but the police found that it was not and the accused was read his rights and cautioned. He was eventually charged with first degree murder. While he did not confess, his answers to police questions included comments that the Crown sought to introduce at trial to show that he committed the crime.
A pre‑trial voir dire was held to determine whether the accused’s statements were voluntary and thus admissible under the common law confessions rule, and whether the police had breached his Charter rights to silence and to counsel such that the evidence should be excluded. The trial judge found that the accused was not a suspect when he was interviewed by the police, and that his statements were made voluntarily. Moreover, his Charter rights were not engaged as he was not psychologically detained by the police. He accordingly held that the statements were admissible at trial. The Court of Appeal observed that the trial judge made legal errors with respect to the confessions rule. It found that the trial judge did not address whether the accused made a meaningful choice to speak to the police as a condition of voluntariness, and therefore ordered a new trial. It did not resolve the psychological detention issue.
Held (Brown and Martin JJ. dissenting): The appeal should be allowed and the conviction restored.
Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Kasirer and Jamal JJ.: Despite the absence of a caution, the accused’s statements to the police were voluntary under the confessions rule. The accused exercised a free or meaningful choice to speak to the police and was not unfairly denied his right to silence. Given that there was a reasonable basis to consider the accused a suspect at the time of questioning, the absence of a caution raised prima facie evidence that the accused’s statements were involuntary. However, the Crown discharged its burden by proving that the absence of a caution was without consequence and that the statements were, beyond a reasonable doubt and in view of the context as a whole, voluntary. Further, the accused was not psychologically detained, such that his Charter rights were not triggered. There was accordingly no breach of his right to counsel.
In accordance with the modern confessions rule, a statement will not be admissible if it is made under circumstances that raise a reasonable doubt as to whether the statement was given voluntarily. The Crown bears the persuasive or legal burden of proving voluntariness beyond a reasonable doubt. The inquiry is to be contextual and fact-specific, requiring a trial judge to weigh the relevant factors of the particular case. It involves consideration of the making of threats or promises, oppression, the operating mind doctrine, and police trickery. The operating mind consideration, for instance, requires proof that the accused was capable of making a meaningful choice to speak to the police and that the choice was not improperly influenced by state action. The language of meaningful, free or active choice emphasizes the overall voluntariness of the statement, rather than a minimum level of actual subjective knowledge that the accused did not have to say anything to the police and that anything said could be taken down in evidence. These factors are not a checklist: ultimately, a trial judge must determine, based on the whole context of the case, whether the statements made by an 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.
The confessions rule strives for a balance between the rights of the accused to remain silent and against self‑incrimination and the legitimate law enforcement objectives of the state relating to the investigation of crime. These interests share a common preoccupation in the repute of the administration of criminal justice. Justice mandates a recognition that the rights of the accused are important but not without limit; it also insists that the police be given leeway in order to solve crimes but that their conduct not be unchecked. In seeking this balance, the law imposes the heavy burden on the Crown to prove voluntariness beyond a reasonable doubt, which serves as substantial protection for the accused at all stages of a criminal investigation.
The confessions rule is animated by both reliability and fairness concerns, and it operates differently depending on context. The police caution is typically understood as speaking to fairness, as the absence of a caution may unfairly deprive someone of being able to make a free and meaningful choice to speak to police when they are at risk of legal jeopardy. However, the caution does not resolve all of the concerns addressed by the confessions rule. The absence of a caution is an important but not a decisive factor in the voluntariness inquiry. A caution is designed to rectify an informational imbalance when a detained or arrested individual is in a state of heightened vulnerability, whereas voluntariness extends to a broader complex of values animated by both reliability and fairness. Though fairness plays an important role in the modern rule, it cannot dominate the analysis to the exclusion of other values. The confessions rule is also about protecting innocent defendants from false confessions and protecting suspects from abusive police tactics, which are distinct purposes reflected in their own ways in the threats or inducements, oppression and trickery factors. These concerns persist even where a caution has been properly delivered and understood. Contextual analysis is thus required to extend adequate protections to suspects beyond what the caution provides on its own.
In deciding that the absence of a caution is an important but not a decisive factor in the voluntariness inquiry, the Court in Boudreau v. The King, [1949] S.C.R. 262, confirmed that the confessions rule should also remain flexible to account for the complex realities of police investigations. To make the absence of a police caution determinative of voluntariness by way of a bright‑line rule would risk inhibiting legitimate investigative techniques while ignoring the other protections provided by the rule. The confessions rule accepts in its design that statements resulting from police questioning are valuable, provided they are reliable and fairly obtained; accordingly, even where a caution is not given, the circumstances may nevertheless indicate that a person has freely chosen to speak and no fairness concerns arise.
Furthermore, although a caution can contribute to ensuring that an investigation is conducted fairly, fairness considerations are unlikely to arise in the same way where the person is not suspected of being involved in the crime under investigation. Fairness concerns only really manifest once an individual is targeted by the state; where a mere witness or uninvolved individual is questioned, introducing a caution requirement as a condition of voluntariness could exact a cost on the administration of justice, notwithstanding the fact that no unfairness has arisen in obtaining the statement. To call for cautions in all circumstances would unnecessarily inhibit police work, and could even chill investigations where a person faces no apparent legal jeopardy and the intentions of police are merely to gather information. Accordingly, it is preferable to allow courts to take measure of the true circumstances of the police encounter flexibly.
The weight to be given to the absence of a caution falls on a spectrum. At one end, the significance attached to the failure to caution an uninvolved individual will typically be negligible. The relative lack of vulnerability of an uninvolved individual or witness who is questioned by police means that a caution is generally not necessary to show that the statements were voluntary. At the other end of the spectrum, the vulnerability and legal jeopardy faced by detainees cement the need for a police caution. Fairness commands that they know of their right to counsel and, by extension, of their right to remain silent so that they can make an informed choice whether to participate in the investigation. The weight attached to the absence of a caution in these circumstances will be at the highest end. In between these two extremes, where police interview a suspect who is not detained and do not provide a caution, the lack of caution is not fatal but is an important factor in determining voluntariness.
The heightened jeopardy and consequential vulnerability faced by a suspect thus warrants special consideration in the analysis to ensure adequate and principled protections under the confessions rule. 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. The test is 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 was implicated in the criminal offence being investigated. 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. Depending on the circumstances, the denial of choice may be relevant to the voluntariness analysis. 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. This framework does not displace the ultimate burden on the Crown to prove voluntariness beyond a reasonable doubt. Rather, it emphasizes the legal significance of the absence of a caution as a potential sign of involuntariness where a person is a suspect.
In the instant case, the trial judge’s statements of the law relating to confessions did not reflect legal errors that warranted appellate intervention. A finding of voluntariness calls for deference unless it can be shown that it represents a palpable and overriding error. Although the trial judge committed errors in concluding that the accused was not a suspect, they were not overriding mistakes. The trial judge’s conclusions that the accused’s statements were voluntary and that he exercised a free choice to speak should not have been disturbed.
Furthermore, the trial judge’s conclusion that the accused was not psychologically detained should be confirmed. Psychological detention exists where an individual is legally required to comply with a direction or demand by the police, or where a reasonable person in that individual’s position would feel so obligated and would conclude that he or she was not free to go. Three factors are to be considered and balanced: first, the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; second, the nature of the police conduct; and third, the particular characteristics or circumstances of the individual where relevant. In the instant case, the factors weigh against finding that the accused was detained.
Per Brown and Martin JJ. (dissenting): The appeal should be dismissed and the Court of Appeal’s order of a new trial confirmed. The statements made by the accused during the two police interviews should have been excluded at trial.
The majority introduces a salutary change to the law by stating that the absence of a warning to suspects speaking to police is prima facie evidence that they were unfairly denied their choice to speak to the police. The majority can be understood as adopting a presumption of inadmissibility when statements are elicited from suspects without a warning. The rationale underlying the majority’s presumption is that the absence of a caution may unfairly deprive individuals of making a free and meaningful choice to speak to police when they are at risk of legal jeopardy. There is agreement with this rationale, but the majority falls short by failing to carry it to its logical conclusion: that is, in order to ensure that individuals are making a free and meaningful choice to speak to police, police should provide a warning at the outset of all interviews — and not just interviews of suspects.
Such a rule follows from the Court’s jurisprudence, which has progressed beyond a negative inquiry into police inducements, trickery, and oppression. Since at least the Court’s decision in R. v. Hebert, [1990] 2 S.C.R. 151, confirmed more recently in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, it has been clear that voluntariness exists only where the accused made a meaningful choice to speak with police. This reflects the confessions rule’s concern for a person’s right to choose whether to speak to police, a concern that underlies the privilege against self‑incrimination and the right to silence. Voluntariness requires the court to scrutinize whether the accused was denied the right to silence under the Charter or the common law. The inquiry focuses predominantly on the accused’s ability to make a meaningful choice whether to speak with police. A meaningful choice is an informed choice. The modern conception of meaningful choice goes beyond an operating mind. The operating mind doctrine does inquire into an accused’s cognitive capacity, but an accused’s cognitive capacity to choose between alternatives is meaningless without information about those alternatives. Interviewees cannot make a meaningful choice without knowing that the choice is between speaking and not speaking with police and knowing of the consequences of choosing to speak.
Voluntariness is therefore premised on the assumption that the interviewee should have actual knowledge of the legally available options. It cannot merely be assumed that people interacting with the police know that they may remain silent and that whatever they say can be used in evidence. Accordingly, unlike what is proposed by the majority, the importance of a warning should not be limited to circumstances where an accused is a suspect or detainee. A warning should be given at the outset of all interviews, and its importance increases with the objective risk of self‑incrimination.
The role of a warning in the voluntariness analysis requires greater clarity, brighter lines and increased protection for individuals. The Court’s approach to a warning, stated in Boudreau, has not been reviewed to account for later recognition by the Court of the need for an informed choice. Furthermore, the instruction in Boudreau that a failure to warn a suspect is “a factor and, in many cases, an important one” in assessing the voluntariness of the suspect’s statement has led to little consistency in how courts approach the failure to warn a suspect. The Court should therefore adopt a new approach to warnings. The complex of values guiding the notions of fairness and the administration of justice has evolved since Boudreau in 1949. A more stringent approach to a warning is needed in the voluntariness analysis, one that better upholds the confession rule’s modern protections for the common law right to silence and the principle against self‑incrimination.
Since the voluntariness inquiry focuses on whether the accused made a meaningful (and therefore informed) choice to speak to police, it follows that the Crown carries a burden to prove an informed choice. The Crown must show that police warned an interviewee of the right to silence and the consequences of speaking where the police initiate contact with a person to secure information about a crime they were investigating. Absent that warning, a presumption of involuntariness arises which, if not rebutted, renders any statement inadmissible, since police cannot assume interviewees understand their rights or their risks. The Crown may rebut the presumption by establishing, based on some other objective source of information, that interviewees otherwise knew they had a right to remain silent and that anything they said could be used in evidence. The presumption will be more difficult to rebut where the risk of self‑incrimination is objectively heightened whether or not the investigating officer subjectively views the individual being questioned as a witness, suspect, or detainee. The risk is objectively heightened, for instance, when a person is invited to conduct a recorded interview at the police station, when the police take an adversarial approach during an interview, or when there is information that, objectively viewed, would raise a reasonable suspicion that the individual was involved in the crime. The presumption will not arise whenever an accused makes a statement to a person in authority, or to every interaction that an individual has with police; it arises only where police investigate a crime and initiate contact with a person to secure information about the crime.
A warning — one simple sentence — by the authorities at the outset of an interview — that the person is not obliged to say anything, but that anything said can be used in evidence, sets the necessary foundation for voluntariness and enhances the fairness of the process. Replacing the dubious assumption of universal knowledge with a simple and direct communication corrects any informational asymmetry to the benefit of all concerned. First, interviewees, having been informed of their choice, understand that they may lawfully remain silent. Secondly, police are given a clear, bright‑line rule which does not rely on a cumbersome framework directing them to consider the perceived status of the interviewee at any particular point in time. Interviews are so dynamic and fluid that it has proven exceedingly difficult to pinpoint with any confidence when an interviewee becomes a potential suspect, a person of interest, a real suspect, or a detainee. Providing basic and necessary information from the outset, which is when the voluntariness requirement arises, allows authorities to proceed without fear that an interviewee’s misunderstanding about whether to speak or not will result in their carefully conducted interviews yielding involuntary (and therefore inadmissible) statements. Finally, it follows that the Crown will benefit from such information having been given to the accused at the outset, since it can therefore more easily establish the meaningful choice at the heart of the voluntariness inquiry.
This approach promotes the confessions rule’s animating concern with fairness and the administration of justice, provides a strong incentive for police to warn individuals before questioning them, and helps alleviate the informational deficit and coercive element inherent in police interrogations. It will not unduly interfere with police investigations. An approach that effectively invites police to exploit the murky lines around psychological detention and rely on individuals’ ignorance of their rights to extract statements where they are at risk of incriminating themselves should not be endorsed.
Applying this restated test in the instant case, the accused did not speak to police voluntarily with awareness about what was at stake. The Court of Appeal was correct in holding that the trial judge made legal errors in assessing the voluntariness of the accused’s statements. The police initiated contact with the accused to secure information about a homicide investigation. This alone triggered the need for a warning. The Crown therefore had to demonstrate that the accused made an informed choice to speak to the police. Since the police warned the accused only upon seeing that his firearm was missing, the accused’s prior statements were presumptively inadmissible. With the police’s questioning turning adversarial and the accused becoming a suspect partway through the first interview, the risk of self‑incrimination was objectively heightened, making the presumption of inadmissibility more difficult to rebut. The Crown failed to adduce clear and compelling evidence demonstrating that the accused’s statements were voluntary and thus failed to rebut the presumption of involuntariness.
Cases Cited
By Kasirer J.
Applied: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; Boudreau v. The King, [1949] S.C.R. 262; R. v. Whittle, [1994] 2 S.C.R. 914; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; considered: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; R. v. Hebert, [1990] 2 S.C.R. 151; referred to: R. v. Morrison, [2000] O.J. No. 5733 (QL), 2000 CarswellOnt 5811 (WL); R. v. Worrall, [2002] O.J. No. 2711 (QL), 2002 CarswellOnt 5171 (WL); R. v. Timm (1998), 131 C.C.C. (3d) 306; R. v. Ewert, [1992] 3 S.C.R. 161; Ward v. The Queen, [1979] 2 S.C.R. 30; Mom v. R., 2018 QCCA 1381; Legault v. R., 2017 QCCA 1769; R. v. D.N., 2018 BCCA 18, 358 C.C.C. (3d) 471; R. v. Cunningham, 2017 ABCA 169, 349 C.C.C. (3d) 82; Schwartz v. Canada, [1996] 1 S.C.R. 254; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Burns, [1994] 1 S.C.R. 656; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; Horvath v. The Queen, [1979] 2 S.C.R. 376; R. v. Love, 2020 ABQB 689, 21 Alta. L.R. (7th) 248; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. MacDonald‑Pelrine, 2014 NSCA 6, 339 N.S.R. (2d) 277; Yergeau v. R., 2021 QCCA 1827; R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18; R. v. Ponace, 2019 MBCA 99, [2020] 3 W.W.R. 657; R. v. Lambert, 2018 NLCA 39, 363 C.C.C. (3d) 397; R. v. Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227; R. v. M. (D.), 2012 ONCA 894, 295 C.C.C. (3d) 159; R. v. Pepping, 2016 ONCA 809; R. v. Oland, 2018 NBQB 255; R. v. Smyth, 2006 CanLII 52358; R. v. Wong, 2017 ONSC 1501; R. v. Merritt, 2016 ONSC 7009; R. v. Higham, 2007 CanLII 20104; Prosko v. The King (1922), 63 S.C.R. 226; R. v. Perry (1993), 140 N.B.R. (2d) 133; R. v. Peterson, 2013 MBCA 104, 299 Man. R. (2d) 236; R. v. Pearson, 2017 ONCA 389, 348 C.C.C. (3d) 277; R. v. Joseph, 2020 ONCA 73, 385 C.C.C. (3d) 514; Bernard v. R., 2019 QCCA 1227; R. v. Kelly, 2019 NLCA 23, 374 C.C.C. (3d) 360; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Hodgson, [1998] 2 S.C.R. 449; Gach v. The King, [1943] S.C.R. 250; R. v. Lapointe and Sicotte (1983), 9 C.C.C. (3d) 366, aff’d [1987] 1 S.C.R. 1253; R. v. Crawford, [1995] 1 S.C.R. 858; R. v. Auclair (2004), 183 C.C.C. (3d) 273; R. v. Campbell, 2018 ONCA 837, 366 C.C.C. (3d) 346; R. v. Boothe, 2016 ONCA 987; R. v. Blackmore, 2017 BCSC 2682; R. v. Leblanc (2001), 162 C.C.C. (3d) 74; R. v. Moran (1987), 36 C.C.C. (3d) 225; R. v. Seagull, 2015 BCCA 164, 323 C.C.C. (3d) 361; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Pomeroy, 2008 ONCA 521, 91 O.R. (3d) 261; R. v. Hawkins, [1993] 2 S.C.R. 157, rev’g (1992), 102 Nfld. & P.E.I.R. 91.
By Brown and Martin JJ. (dissenting)
R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; Boudreau v. The King, [1949] S.C.R. 262; Gach v. The King, [1943] S.C.R. 250; Piché v. The Queen, [1971] S.C.R. 23; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; Ibrahim v. The King, [1914] A.C. 599; R. v. Warickshall (1783), 1 Leach 263, 168 E.R. 234; R. v. K.P.L.F., 2010 NSCA 45, 290 N.S.R. (2d) 387; R. v. Voisin, [1918] 1 K.B. 531; Practice Note (Judges’ Rules), [1964] 1 W.L.R. 152; Prosko v. The King (1922), 63 S.C.R. 226; R. v. Whittle, [1994] 2 S.C.R. 914; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Fitton, [1956] S.C.R. 958; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. Oickle (1998), 164 N.S.R. (2d) 342; R. v. Whittle (1992), 78 C.C.C. (3d) 49; R. v. Singh, 2003 BCSC 2013; R. v. Worrall, [2002] O.J. No. 2711 (QL), 2002 CarswellOnt 5171 (WL); R. v. Higham, 2007 CanLII 20104; R. v. Garnier, 2017 NSSC 338; R. v. Morrison, [2000] O.J. No. 5733 (QL), 2000 CarswellOnt 5811 (WL); R. v. Randall, 2003 CanLII 2205; R. v. Joseph, 2020 ONCA 73, 385 C.C.C. (3d) 514; R. v. Pearson, 2017 ONCA 389, 348 C.C.C. (3d) 277; R. v. Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227; R. v. Al‑Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; R. v. Lourenco, 2011 ONCA 782, 286 O.A.C. 187; R. v. Dunstan, 2017 ONCA 432, 348 C.C.C. (3d) 436; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Crawford, [1995] 1 S.C.R. 858; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519; R. v. M. (D.), 2012 ONCA 894, 295 C.C.C. (3d) 159; R. v. Engel, 2016 ABCA 48, 616 A.R. 181.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 7 , 9 , 10 , 24(2) .
Youth Criminal Justice Act , S.C. 2002, c. 1, s. 146(2) .
Authors Cited
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Stuart, Don. “Oickle: The Supreme Court’s Recipe for Coercive Interrogation” (2001), 36 C.R. (5th) 188.
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Vauclair, Martin, et Tristan Desjardins, avec la collaboration de Pauline Lachance. Traité général de preuve et de procédure pénales 2022, 29e éd. Montréal: Yvon Blais, 2022.
APPEAL from a judgment of the Alberta Court of Appeal (Schutz, Khullar and Antonio JJ.A.), 2020 ABCA 289, 12 Alta. L.R. (7th) 55, 390 C.C.C. (3d) 491, 468 C.R.R. (2d) 1, [2020] 11 W.W.R. 444, [2020] A.J. No. 826 (QL), 2020 CarswellAlta 1432 (WL), setting aside the conviction of the accused for first degree murder and ordering a new trial. Appeal allowed, Brown and Martin JJ. dissenting.
Matthew W. Griener, for the appellant.
Pawel J. Milczarek and Kelsey Sitar, for the respondent.
Frank Au and James V. Palangio, for the intervener the Attorney General of Ontario.
Patrick McGuinty, for the intervener the Attorney General of New Brunswick.
Samara Secter, for the intervener the Canadian Civil Liberties Association.
The judgment of Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Kasirer and Jamal JJ. was delivered by
Kasirer J. —
I. Overview
[1] When questioned at a police station in connection with a murder investigation, Russell Steven Tessier was not told that he had the right to remain silent. He was not cautioned that, if he did speak to the authorities, what he said could be taken down and used as evidence in court. While he did not confess, Mr. Tessier’s answers to police questions included comments that the prosecution sought to introduce at trial to show that he committed the crime. At the time of the interviews, Mr. Tessier was not under arrest and he was not physically detained. The parties disagree whether he had become a suspect over the course of the interviews and whether he had been psychologically detained by reason of the police conduct at the station.
[2] The statements were admitted after a voir dire at trial. Mr. Tessier was later convicted of first degree murder. The Court of Appeal decided that the trial judge committed legal errors when considering whether the statements had been made voluntarily, in particular by misapprehending the fairness rationale of the confessions rule, the operating mind doctrine associated with voluntariness and the proper test for determining whether Mr. Tessier was a suspect at the time. The conviction was set aside and a new trial ordered.
[3] The principal issue raised on appeal to the Court is whether the Crown met its heavy burden to show, beyond a reasonable doubt, that Mr. Tessier’s statements were voluntary pursuant to the common law confessions rule. The Court of Appeal said the trial judge failed to address the key question in this case: whether, in the absence of a caution, Mr. Tessier had been denied a meaningful choice to speak to the police “knowing that he was not required to answer police questions, or that anything he did say would be taken down and could be used in evidence” (2020 ABCA 289, 12 Alta. L.R. (7th) 55, at para. 54 (emphasis in original)). The appeal bears upon two related doctrinal questions under the confessions rule: first, the requirements of the operating mind doctrine and, second, the impact of the absence of a caution on voluntariness prior to detention or arrest.
[4] It has often been said that the proper application of the confessions rule aspires to strike the right balance between the individual and societal interests at play in police questioning: on the one hand, protecting the accused from improper interrogation by the police and, on the other, providing the authorities with the latitude they need to ask difficult questions to investigate and solve crime (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 33). Understanding the impact of the absence of a caution on voluntariness in the pre-detention phase, and in particular on the fairness considerations that underlie the confessions rule, is integral to that balance.
[5] In R. v. Singh, 2007 SCC 48 [2007] 3 S.C.R. 405, Charron J. provided helpful guidance for persons in authority undertaking criminal investigations: “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 . . .” (para. 33). One understands Charron J.’s sensible intuition. While a proper caution will not guarantee that statements given thereafter are voluntary, it stands to reason that proving the accused made a free choice to speak to the authorities will be easier for the Crown if a caution is given. Because a suspect is more vulnerable to making involuntary statements than a mere witness or a person not involved in the crime, the presence or absence of a police caution is an “important” factor in answering the question of voluntariness upon which the admissibility of statements will turn (Boudreau v. The King, [1949] S.C.R. 262, at p. 267).
[6] What happens when the police question a suspect without providing the caution recommended in Singh? Mr. Tessier argues here that the trial judge should have recognized that he was subject to a degree of control by the authorities that mandated a caution to guard against an unfair denial of his free and meaningful choice to speak to the police.
[7] Charron J. was careful to say only that the police are “well advised” or should provide suspects with a caution; her remark was not in the order of a bright-line mandatory rule which, one infers, she sensed would upset the balance struck by the confessions rule. The failure to provide a caution is not in itself fatal to admissibility (see M. Vauclair and T. Desjardins, in collaboration with P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022), at No. 38.28). But that this Court took the step to recommend a caution for suspects in Singh is an indication at common law that this lack of a caution is not without consequence on the type of proof required of the Crown to establish the voluntariness of the statements given.
[8] As part of its persuasive burden to prove voluntariness beyond a reasonable doubt at trial, the Crown must, in my view, show that the absence of a caution did not undermine the suspect’s free choice to speak to the police as part of the contextual examination of voluntariness. It is an important factor that must be addressed by the Crown by pointing in particular to circumstances that prove beyond a reasonable doubt that the suspect possessed an operating mind and voluntariness was not otherwise impugned. Generally, the operating mind doctrine requires the Crown to show that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend that the statement might be used as evidence in criminal proceedings (R. v. Whittle, [1994] 2 S.C.R. 914, at p. 939). Where the police do not provide a caution in the circumstances in which, as Charron J. says, they would be well advised to do so, the Crown must show further that the police conduct did not unfairly frustrate the suspect’s ability to understand that what they were saying could be used in evidence, that they were not subject to police trickery and that there were no circumstances that would otherwise cast doubt on voluntariness.
[9] Drawing on scholarly commentary on the burden of proof relating to the operating mind dimension of voluntariness, I would recognize 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 (see S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶8.119). In circumstances in which the accused has raised credible evidence that their status at the time of questioning was that of a suspect, the presence or absence of a caution takes on meaningful significance. Where the accused further puts the lack of a caution and their increased legal jeopardy into evidence — by cross‑examining Crown witnesses or otherwise — they have met their evidentiary burden that raises the issue as to whether their statements were freely given. It then falls to the Crown to discharge its persuasive burden by proving either that the accused was not in legal jeopardy, in that they were a mere witness and not a suspect, or that the absence of a caution was without consequence and that the statements were, beyond a reasonable doubt and in view of the context as a whole, voluntary. This would give substance to the recommendation formulated by Charron J. in Singh for trial judges seeking to weigh the importance of a lack of caution.
[10] Beyond merely showing that the person questioned had an operating mind, there may also be circumstances in which the absence of a caution is in point of fact a willful failure by the police to give a caution. This might reflect 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 sta