SCC restores murder conviction: statements accused made prior to police warning were voluntary

The majority and dissent differed in their interpretation of the confessions rule. The majority agreed with the trial judge that when police question someone who is not suspected of involvement in a crime, failing to caution them of their Charter rights is unlikely to raise fairness concerns, and requiring that they do so would unnecessarily inhibit police investigation. In the dissent's view, police should provide a caution at the outset of all interviews, not only those with suspects.

Tessier’s lawyer Pawel Milczarek says the ruling sends a “mixed message to police.” While it reinforces the importance of police cautions, it also suggests that when a person is not yet detained and not provided with a caution, the only way to show unfairness is to prove the police were deceitful. “It places an evidentiary onus on the accused to prove trickery of some sort… that’s the concerning part of it.”

“Ultimately, it leaves much of the law in this in this area intact.”

The aspect of the case most likely to be referred to in the future, says Milczarek, is the agreement between the majority and dissent that where there is reasonable basis to consider a person a suspect at the time of questioning, the lack of a police caution renders their statements prima facie involuntary or presumptively inadmissible. “That’s likely to be the lasting impact of the decision,” he says.

Justices Richard Wagner, Michael Moldaver, Andromache Karakatsanis, Suzanne Côté, Malcolm Rowe, Nicholas Kasirer and Mahmud Jamal comprised the majority. Justices Sheilah Martin and Russell Brown would have dismissed the Crown’s appeal and confirmed the Court of Appeal’s order to set aside the conviction and order a new trial.

The Canadian Civil Liberties Association (CCLA) intervened in the case to encourage the court to "keep fundamental fairness in mind when interpreting the confessions rule," says Samara Secter, who represented the CCLA along with Frank Addario.

"The CCLA took the position that choice is only meaningful when it is informed. Without understanding alternatives and their consequences the concept of choice is illusory."

“This is another illiberal decision by a majority of the court when it comes to civil liberties. The informational imbalance between the state and the citizen about rights and freedoms should not inure to the benefit of the state," she says. "Unfortunately, the majority’s reasoning prioritizes law enforcement concerns over an individual’s right to silence, to privacy, and to be left alone by the state.”

The debate between the parties, and between the majority and the dissent, focused on “what makes a choice to speak to the police meaningful,” says Secter. The majority’s narrow interpretation would admit statements where the accused is unaware that they have a choice of whether to speak to police and unaware of the consequences of doing so. The Crown may only need to show the accused was “cognitively functional,” and that there were no police “threats or inducements,” to demonstrate there was “a meaningful choice,” she says.

“The dissent interprets choice through a fairness lens,” says Secter. For Justices Brown and Martin, “meaningful choice is an informed choice. Interviewees cannot make meaningful choices without knowing the alternatives and their respective consequences.”         

In March 2007, police found Alan Berdahl’s body in a ditch near Carstairs, Alta, with gunshot wounds in his head. While in the days following the murder, police interviewed Tessier, who was a friend and business associate of the deceased, they did not charge him until 2015, and his trial was held in 2018.

After the police found the body, they asked Tessier to come to the station for an interview. They did not caution him that he had the right to remain silent, and that his statements could be used against him as evidence in a murder trial. The police also failed to tell Tessier that he had the right, under s. 10(b) of the Charter, to retain and instruct counsel. During the interview, the investigating officer asked Tessier if he had killed Berdahl, how he could prove he did not, and why his DNA was near the crime scene. The officer also suggested to Tessier that he was lying and invited him to provide physical evidence.

At trial, the Crown did ultimately use Tessier’s statements to show that he had committed the murder.

The trial judge had reasoned that Tessier was not a suspect during these initial interviews, that he had made these statements voluntarily, and his Charter rights were not engaged because he was not “psychologically detained.” The Court of Appeal found that the trial judge failed to address whether Tessier had made “a meaningful choice” to speak with police, misapplying the confessions rule.

According to the confessions rule, a confession is inadmissible if “made under circumstances that raise a reasonable doubt as to voluntariness,” wrote Justice Kasirer in the majority reasons. The confessions rule “strives for a balance” between the accused’s rights to remain silent and against self-incrimination, and “legitimate law enforcement objectives relating to the investigation of crime.” These interests share “a common preoccupation in the repute of the administration of criminal justice,” said Justice Kasirer.

The Crown is required to prove voluntariness beyond a reasonable doubt, whereas an accused is only required to establish a breach of the Charter on a balance of probabilities.

The confessions rule is context-specific and “animated by both reliability and fairness concerns,” said Justice Kasirer. A police caution relates to fairness concerns, as it allows an accused to make a “free and meaningful choice to speak to police” while at risk of legal jeopardy. While it plays an important role, fairness “cannot dominate the analysis to the exclusion of other values.” Concerns about protecting the innocent from false confessions and protecting suspects from abusive police tactics persist even when police deliver a proper caution, he said.

Fairness concerns surrounding an absence of a police caution are unlikely to arise when police are questioning someone who is not suspected of being involved in the crime, said Justice Kasirer. “To call for cautions in all circumstances would unnecessarily inhibit police work.”

The 1949 decision, Boudreau v. The King, found that the absence of a caution was “an important but not a decisive factor” in the voluntariness inquiry, said Justice Kasirer. Boudreau confirmed that the confessions rule should “remain flexible to account for the complex realities of police investigations.”

The majority also confirmed the trial judge’s finding that the accused was not psychologically detained. Psychological detention occurs “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.”

In dissent, Justices Brown and Martin said they were “content to decide this case on the trial judge’s erroneous treatment of the confessions rule.” The trial judge believed it was sufficient that Tessier “had basic cognitive capacity” and that the police did not “threaten, trick, or induce him into making a statement.”

Police should give a warning at the beginning of all interviews, and not only interviews with suspects, said Justices Brown and Martin. They add that when police engage a person for information about a crime, “a rebuttable presumption arises” that unless the police provide a warning, all statements given are involuntary. “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.”