SCC expands confessions rule protection for suspects but doesn’t require cautions for all interviewees

By Cristin Schmitz

Last Updated: Monday, October 17, 2022 @ 11:42 AM

Law360 Canada (October 14, 2022, 4:19 PM EDT) -- The Supreme Court of Canada has ruled that the failure of police to caution a suspect before questioning the suspect during a criminal investigation is prima facie evidence that the suspect’s statements were involuntary and hence inadmissible as evidence — however seven judges declined to go further to require that police investigating crimes provide warnings when questioning all individuals, and not just suspects.

On Oct. 14, the top court divided 7-2 to restore the 2018 first-degree murder conviction of a Calgary man, Russell Steven Tessier, who unsuccessfully argued that his statements to police while they were investigating his friend’s shooting death in 2007 — before police eventually cautioned him and before Tessier was charged with the murder eight years later — were involuntary and therefore should not have been admitted as evidence in his trial: R. v. Tessier 2022 SCC 35.

The split is notable for the judges’ disagreement over the extent to which they should modify the common law confessions rule in the context of police questioning of individuals during crime investigations. The common law confessions rule provides that 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 — i.e., the person had a functioning mind and made the statements without being tricked or threatened — with the Crown bearing the persuasive or legal burden of proving voluntariness beyond a reasonable doubt.

Justice Nicholas Kasirer

Justice Nicholas Kasirer

Justice Nicholas Kasirer’s majority judgment provides lower courts with a framework for analyzing claims by accused that their statements to police were involuntary because police questioned them, without first cautioning them.

The court held that the heightened jeopardy and vulnerability of a suspect warrants special consideration in the analysis to ensure adequate and principled protections under the confessions rule. It went on to create a presumption that the absence of a police caution to a suspect before questioning starts in the context of a criminal investigation constitutes prima facie evidence that the suspect’s statements were involuntary and hence inadmissible as evidence.

In dissent, Justices Russell Brown and Sheila Martin lauded the majority for what they said “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” — which the judges said “can be understood as adopting a presumption of inadmissibility when statements are elicited from suspects without a warning.”

However, Justices Brown and Martin would both have affirmed the decision of the Alberta Court of Appeal below which ordered a new trial for Tessier because, in their view, the Crown failed to adduce clear and compelling evidence demonstrating that the accused spoke to police voluntarily, i.e. with awareness about what was at stake, and thus the Crown had failed to rebut the presumption of involuntariness and consequent inadmissibility that the majority had recognized in its adaption of the confessions rule.

Justices Brown and Martin said they agreed with the rationale underlying the presumption, i.e., that the absence of a police caution may unfairly deprive individuals of making a free and meaningful choice to speak to police when they are at risk of legal jeopardy.

However, “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,” Justices Brown and Martin wrote.

Justice Russell Brown

Justice Russell Brown

“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,” they argued.

The minority’s more expansive approach to the confessions rule reflected a position contended for by the defence and the intervener Canadian Civil Liberties Association (CCLA). The CCLA urged the top court to jettison the “witness/suspect divide” for determining who police are required to caution, arguing that doing so would eliminate “a fraught inquiry into the state of mind of the questioning police officer at the time of the interaction” while ensuring “that individuals who may initially be complainants or witnesses, but could quickly become suspects, are all afforded protection.”

Tessier’s counsel, Pawel Milczarek of Calgary’s Sitar and Milczarek, told The Lawyer’s Daily what is new in the wake of Tessier is the “agreement of the whole court at paras. 9 and 116 that ... where police have a reasonable basis to consider the accused a suspect at the time of questioning, a lack of police caution will mean the statement is presumptively inadmissible,” i.e. prima facie involuntary. Otherwise, the law remains largely the same, he said.

Pawel Milczarek, Sitar and Milczarek

Pawel Milczarek, Sitar and Milczarek

The court’s comments on presumptive inadmissibility might focus attention on police cautions and on ensuring cautions are delivered as soon as police reasonably think a person is a suspect, Milczarek said.

“However, the impact of this is difficult to tell at this point,” he remarked. “It is an incremental increase in protections because people who are detained already have the constitutional protection of a police caution and rights to counsel. Consequently, the increased protection covers those ‘reasonably suspected’ of crime before they are actually detained. How courts interpret reasonable suspicion in this context, and how many people will be able to prove that they fall into this in-between condition of ‘reasonably suspected, but yet not detained’ — which exists only in the mind of police officers — remains to be seen.”

Milczarek suggested the majority’s judgment, in essence, “leaves room for a great swath of the public to remain ignorant of their rights in speaking with the police, and allows police to attempt to weaponize this ignorance to the detriment of the people they are interviewing.”

He added that the minority judgment, reflecting the defence position on appeal, “does an excellent job explaining the murky area that continues to exist at this point. A meaningful choice still depends on all the circumstances of the police interview, but at the ‘pre-reasonable suspicion’ stage, people will still not receive the basic information they need to make a meaningful choice to speak to police or maintain silence.”

The minority’s approach would have been simple for police to use and administer, he added. “The majority’s approach preserves methodological confusion in the test for voluntariness. This arises from two inconsistent inquiries that the court has to undertake. On the one hand, a court has to determine whether a statement by the accused was voluntary, i.e. not induced or coerced through promises, threats, oppressive circumstances, or undertaken where they lacked mental capacity or understanding of their right to maintain silence and, on the other hand, courts still have to ... [address] the weighing of the ‘understanding’ factor in the mind of the accused, based on the level of suspicion in the mind of a police officer,” Milczarek remarked. “Since the test is all about what is in the mind of the accused, it is confusing to affect that somehow on the basis of what is in the mind of a police officer about their level of suspicion of the person. The court is left weighing two separate sets of state of mind with the risk that courts will cut the police a break on the basis of their state of mind, even though that has no impact on whether the person’s statement was actually voluntary or not. In other words, it differentiates the importance of a caution to the state of mind of the accused on the basis of a factor that has nothing to do with actual voluntariness — that is, what a police officer subjectively thought the person’s status was at the time of the interview.”

Crown counsel had not commented by press time.

The CCLA urged, in its factum filed with the court, that “relying on the witness/suspect divide to determine whether a caution is required allows police to speak to individuals who are likely to become suspects based on their answers to questions without ensuring that those individuals know that they can choose not to engage or answer.”

To that argument Justice Kasirer answered for the majority that “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,” he said. “Accordingly, it is preferable to allow courts to take measure of the true circumstances of the police encounter flexibly.”

Justice Sheilah Martin

Justice Sheilah Martin

Justice Kasirer explained that in analyzing claims by accused that their statements to police were involuntary because police questioned them without first cautioning them, 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,” he said.

“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,” he cautioned.

“It is credible evidence of a lack of voluntariness that must be addressed by the court directly,” he continued. “Depending on the circumstances, the denial of choice may be relevant to the voluntariness analysis.”

Justice Kasirer stipulated that the absence of a caution is not conclusive, and that 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,” he wrote. “If the circumstances indicate that there was an informational deficit exploited by police, this will weigh heavily towards a finding of involuntariness.”

Justice Kasirer added that 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,” he stressed. “Rather, it emphasizes the legal significance of the absence of a caution as a potential sign of involuntariness where a person is a suspect.”

Justice Kasirer ruled that the trial judge’s conclusions that Tessier’s statements were voluntary and that the accused had exercised his free choice to speak should not have been disturbed by the Alberta Court of Appeal. The court also confirmed the trial judge’s determination that Tessier was not psychologically detained.

Police questioned Tessier in 2007 about the murder of his friend, who had been shot in the head, and who was discovered in a rural ditch near the town of Carstairs, Alta. Learning that Tessier was the deceased’s friend and business associate, police asked Tessier for an interview with the intent of ascertaining the victim’s last known movements and to establish a victimology.

After voluntarily attending at the police station for the interview, Tessier took the interviewing officer to a truck to retrieve items that belonged to the deceased. Later that day, he returned to the police station and requested a second interview to provide more information. He asked the police to accompany him to his apartment to confirm that his rifle was still there. At the apartment, the rifle was missing. Police then suspected Tessier had done the killing and, for the first time, Tessier was cautioned and told of his right to counsel. He was not charged until 2015, however, after his DNA was matched to a cigarette butt found near the crime scene. Following a voir dire in 2018, the trial judge admitted into evidence the statements Tessier made to the police before he was cautioned. Tessier successfully appealed his conviction for first-degree murder, with the Alberta Court of Appeal ordering a new trial: R. v. Tessier, 2020 ABCA 289.

Photos by Supreme Court of Canada Collection

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