A Meaningful Choice: Modifying the Confessions Rule in R v Tessier
Rebecca Rosenberg, 3L, Volume 81 Senior Editor
On October 14, 2022 the Supreme Court of Canada (SCC) released R v Tessier 2022 SCC 35 (Tessier), which dealt with the issue of when police are required to caution individuals about their rights during an investigation. The decision has significant implications for how the common law confessions rule should be applied and to whom, but begs the question: when do we want citizens to know and apply their rights?
The Facts
On March 16, 2007, Alan Berdahl was fatally shot near a rural highway in Alberta. The next day, RCMP contacted Tessier, a close friend and business associate of the deceased, to come for an interview. Tessier agreed. At this time, the Sergeant interviewing Tessier did not caution him of his right to remain silent or his right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms (Charter). This first interview lasted approximately an hour and forty minutes, during which Tessier provided biographic information about the deceased and their relationship. Notably, Tessier denied the Sergeant’s request to take his DNA, and took an unattended smoke break halfway through the interview.
A day later, Tessier returned to the station to provide additional information and told the Sergeant that he recently brought a firearm home from a shooting range which was the same calibre of gun as the one that killed Berdahl. Tessier invited the Sergeant and another officer to his apartment, but when they arrived, the gun case was empty. At this point, Tessier was cautioned, read his rights, and subsequently arrested. In 2015, eight years after his arrest, Tessier was convicted at trial for first degree murder.
The Common Law Confessions Rule
The common law confessions rule, also known as the voluntariness rule, holds that any out-of-court statement made by an accused person to an authoritative figure is inadmissible unless the Crown proves beyond a reasonable doubt that the statement was made voluntarily. The rule addresses concerns of self-incrimination, fair state conduct, and the reliability of confessions made by accused persons to the authorities.
Whether a statement is voluntary depends on four factors outlined in R v Oickle 2000 SCC 38 (Oickle):
Whether any inducements, such as threats or promises, were made to influence an accused’s statements
Whether the circumstances of the interrogation created an environment of oppression
Whether the accused had an operating mind at the time they were questioned; and
Whether the police engaged in misconduct that would “shock the conscience of the public.”
If any of these elements indicate that police overpowered an accused’s will, any statements they made to the police are considered involuntary and thus inadmissible.
R v Tessier—The Litigation
At Tessier’s trial, a voir dire was held on the admissibility of the statements Tessier made during his first two interviews with the RCMP. First, the trial judge considered whether the statements were involuntary under the common law confessions rule. After reviewing the Oickle factors, the trial judge held that the statements were voluntary because there were no inducements by the police, Tessier was of an operating mind, and there was no police misconduct. The trial judge accepted that a suspect should normally be given a caution, but he found that Tessier was not a suspect because, based on the information the RCMP had at the time, it was objectively reasonable that the Sergeant who questioned Tessier did not believe him to be involved in the homicide.
The Alberta Court of Appeal (ABCA) heard Tessier’s appeal and found that the trial judge misstated the modern confessions rule. First, the judge failed to consider whether Tessier understood that he was not obliged to speak to the police, and second, the judge erred in placing undue emphasis on whether the Sergeant subjectively believed Tessier was a suspect. The ABCA therefore ordered a new trial.
The SCC Decision
In a split 7-2 decision, the SCC found that Tessier exercised a free and meaningful choice to speak to the police and was not unfairly denied his right to silence despite not being cautioned.
Notably, the SCC also addressed the issue of whether Tessier was “psychologically detained” by police, thereby triggering his section 9 and 10(b) Charter rights (Tessier at para 103). However, applying the test from R v Grant 2009 SCC 32, the SCC held that Tessier was not detained, and his Charter rights were accordingly not triggered. The Charter issue was ancillary to the majority’s main discussion, which focused on the confessions rule. The dissent just said the Charter issue would not matter since they would have found involuntariness under the common law rule.
Regarding the common law confessions rule, Justice Nicholas Kasirer, writing for the majority, ruled that a failure to provide a suspect with a caution prior to an interview or interrogation is prima facie evidence that any statements that suspect makes is involuntary and thus inadmissible. This does not, however, apply to every individual being questioned by police while they are investigating crimes—only to suspects or detainees. Moreover, the lack of a caution alone might not lead to involuntariness in all circumstances. An analysis of whether the absence of a caution makes an accused’s statement involuntary will depend on the context of the police investigation.
The reasoning applied by the majority is premised on the balance underlying the confessions rule between protecting the rights of the accused—to remain silent and not self-incriminate—and allowing legitimate police tactics during the investigation of crime. The majority ruled that holding the absence of a caution as determinative of an accused’s voluntariness would unduly restrict police tactics during an investigation. The majority noted that “the scales already tip in favour of protecting the rights of the accused by the broad scope of the rule and the heavy burden resting with the Crown” (Tessier at para 74).
The majority went on to explain that situations where police are required to provide a caution fall on a spectrum. On one end are those who are uninvolved and relatively invulnerable to legal action, and at the other end are detainees who are vulnerable to police powers and face legal jeopardy. For circumstances in between, the majority set out a two-stage test:
Identify if the person was a suspect by asking whether the interviewing officer knew of any objectively discernable facts at the time that would lead a reasonably competent investigator to conclude that the interview is implicated in the investigated crime; and
If it is found that the person was a suspect, the absence of a police caution is prima facie evidence of an unfair denial of one’s meaningful right to choose to speak to the police; this evidence is considered “in the constellation of circumstances relevant to whether the accused made a free choice to speak” (Tessier at para 83).
If the Crown can show that none of the Oickle factors were met, or that the accused knew they had a right to remain silent, it can discharge the burden of showing that the statements were voluntary.
In the case at hand, the majority held that Tessier was not unfairly denied his right to silence and that he had made a meaningful choice to speak to the RCMP. The majority found that Tessier was in fact a suspect at the time he was interviewed. However, they inferred that Tessier knew what he said could be used as evidence, as he would have known that the police were recording his statement to use as evidence. Tessier’s refusal to cooperate when asked for a DNA sample also indicated that he knew his cooperation was voluntary. Furthermore, the majority found that none of the Oickle factors applied to Tessier’s situation. For these reasons, they held that Tessier’s statements were voluntary.
Justices Russell Brown and Sheila Martin disagreed with the majority, arguing in favour of the ABCA’s decision. In their dissent, the Justices agreed with the majority’s move to expand the confessions rule by creating a presumption of inadmissibility where a suspect is not cautioned by police. Yet, they claimed that the majority’s conclusion was illogical, arguing that protecting an individual’s meaningful choice to speak to police requires that police give a warning to everyone they interact with during an investigation, not just suspects or detainees.
“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,” the dissent held (Tessier at para 121). An individual is therefore denied a meaningful choice where they are not informed of what they are choosing from in the first place. It cannot be assumed that everyone knows they have a right to remain silent and that their statements can be used against them as evidence.
The dissent would have raised the bar for rebutting the presumption where the person being interviewed is at an objectively higher risk of self-incrimination, such as where an interviewer asks aggressively pointed questions.
On the facts, the dissent held that Tessier was not aware of what was at stake when he spoke with the RCMP. As a result, Tessier was at an objectively increased risk of self-incrimination and the presumption of inadmissibility, according to their framework, represented a higher threshold for the Crown to meet. The Crown failed to meet the threshold and prove beyond a reasonable doubt that Tessier’s statements were voluntary. Having found that the trial judge erroneously applied the confessions rule, the dissent declined to discuss the Charter issues raised.
To Caution, or Not to Caution
The majority’s decision in Tessier may be interpreted as expanding the confessions rule and providing further protection for an accused by adding a presumption of involuntariness where police fail to caution a suspect. However, this new presumption might not translate to concrete change in practice. There are gaps in the majority’s reasoning that deserve interrogation.
Other than this prima facie presumption, the confessions rule remains as it was before Tessier. Police and courts still need to consider the Oickle test, which, as the dissent aptly pointed out, has been used as a simple checklist that the Crown can go through to satisfy its burden (Tessier at para 115).
For context, the accused in Oickle was held for a six-hour interrogation during which he was lied to and induced to confess through promises of food, psychiatric help, and threats that the accused’s girlfriend would be brought in for questioning. Even so, the SCC in that case held that while the police may have employed some manipulative tactics, it was not bad enough to render the accused’s statements inadmissible. So, as the majority argued, does the Oickle test really pose such a heavy burden on the Crown?
In practice, the Oickle factors can present a difficult challenge for an accused to overcome. Moreover, how a court leans on the Oickle test often depends on how the judge or judges read the interview transcript. While the presumption of involuntariness is a step forward in promoting individual rights to remain silent and access counsel when confronted with police powers, leaving the Oickle test intact and refusing to expand the presumption to non-suspects could allow too much flexibility for police to use an array of unfair and manipulative tactics on unsuspecting citizens.
Notably, the majority reasoned that a requirement that police caution every person they address in a criminal investigation would go against societal interests in having crimes investigated reliably. The majority asserts that this kind of requirement is “an unworkable standard” (Tessier at para 78). Do we believe that this is the case? What specific harms would such a requirement cause?
The SCC thus leaves us to question why a requirement that would allow more people to understand and apply their rights is bad. Can police only investigate crimes if they are able to manipulate unsuspecting citizens? Or is getting an arrest so important that we as a society are content with minor (or major) disregard for individual rights?
Whatever the reason, pointing to an unclear and unspecified societal interest deprives us of the justification we might expect in a case involving citizens’ ability to make a meaningful choice to speak when confronted by state authorities.