R v Tessier : The Supreme Court modifies the Confessions Rule
Should the police be allowed to conduct interviews without warning people that what they said could be used against them in court? In a landmark and controversial decision (R v Tessier, 2022 SCC 35), the Supreme Court engaged in a deep analysis and modification of the common-law confessions rule.
Facts and History of the Case
Allan Berdhall was found dead on March 16, 2007. The police thereafter questioned several individuals, including Mr. Tessier, who was friends with Mr. Berdhall (Tessier, para 14). During this questioning, Mr. Tessier was not informed that he had the right to remain silent, or that his statements could be used against him as evidence in a court of law. He was also not informed of his right under s. 10(b) of the Canadian Charter of Rights and Freedoms (“Charter”) to retain counsel (Tessier, para 15).
A second interview was conducted shortly after the first, during which Mr. Tessier was again not informed of his rights. The police then followed Mr. Tessier to his home, where he showed them a number of items. It was only then that he was informed of his rights, as enumerated above (Tessier, para 21).
Mr. Tessier was charged with first-degree murder in 2015. A question arose as to whether the statements that he had made during his first and second interviews, prior to being informed of his rights, were admissible in court. Mr. Tessier claimed that he had been “psychologically detained” at the time of the interviews, and as a result, the failure to caution him about his rights constituted a violation of the Charter (Tessier, para 30). At a pre-trial voir dire (preliminary examination), the trial judge held that the statements had been made voluntarily (Tessier, paras 22-24). Mr. Tessier was convicted.
On appeal, the Alberta Court of Appeal (“ABCA”) found that the trial judge had made legal errors with respect to the common law Confessions Rule, and allowed Mr. Tessier’s appeal (Tessier, para 32). The Crown chose to appeal to the Supreme Court of Canada (“SCC”).
Two issues were raised on appeal:
“Firstly, in the pre-detention phase of the criminal investigation, how did the absence of a caution during police questioning affect the voluntariness of Mr. Tessier’s statements under the confessions rule? Was he unfairly denied a meaningful choice to speak to police such that his statements must be considered as involuntary and thus inadmissible?
Secondly, was Mr. Tessier psychologically detained in breach of his Charter rights, and if so, what impact did that have on the admissibility of his statements? In particular, should attendance at a police station for an officer-requested meeting be treated as a detention, absent steps taken by the police to communicate the contrary?” (Tessier, para 38)
This article primarily focuses on the court’s analysis of the common law confessions rule.
The Confessions Rule
At issue in this case is the confessions rule, which has been discussed in much depth by both the majority and the dissent. The SCC defined the confessions rule as follows:
“A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. 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 (emphasis added).” (Tessier, para 68)
The Supreme Court’s Judgement
The Majority’s Judgement
Justice Kasirer wrote for the majority in this case. Holding that the ABCA had erred in its analysis, the majority upheld the trial judge’s decision and restored Mr. Tessier’s conviction.
In the course of its analysis, the majority considered the ambit of the confessions rule. They noted that past case law indicated that although the SCC generally favoured the police cautioning suspects during investigative questioning, there was no bright line rule to this effect. The case law had long established that the absence of caution, although relevant, was not determinative of the existence of voluntariness. Nevertheless, cautioning was considered an “important” factor (Tessier, para 64).
In determining whether the terms of the confessions rule were met, the courts had to consider a number of factors, including “the making of threats or promises, oppression, the operating mind doctrine and police trickery” (Tessier, para 68). However, these factors were not dependent in and of themselves, but had to be assessed by the trial judge in the context of the overarching circumstances in the case.
Relying on past case law, the majority noted that the confessions rule sought to balance two competing policy objectives: firstly, the right to silence and against self-incrimination, and secondly, the state’s objective of law enforcement and criminal investigation (Tessier, para 69). In line with the principle of the presumption of innocence, the burden lay with the Crown to prove beyond a reasonable doubt that the voluntariness existed at the time of making the statement. In this sense, the standard of the common-law confessions rule was far higher than that articulated in the Charter, as under the latter, the accused faces the burden of establishing the breach on a balance of probabilities (Tessier, para 69).
The primary concerns at the time of assessing the rule included the general evidentiary preoccupation with both reliability and fairness (Tessier, para 70). What weight, however, would the absence of a caution carry? When it comes to police cautions, however, the overarching concern relates to fairness (Tessier, para 71). Although cautions are not determinative in themselves, they do form a part of the larger contextual analysis. The general importance attached to confessions as a tool of investigation underlies policy considerations for not making cautions determinative (Tessier, paras 72-74). As a result, case law has generally encouraged weighing the absence of cautions as one part of an otherwise contextual analysis of the whole case while determining whether the confessions rule was violated (Tessier, para 72).
Justice Kasirer stated that cautions, however, take on a new importance when the person being so questioned was detained. Quoting Justice Charron in R v Singh (2007 SCC 48), the majority noted that a detainee was in a far more vulnerable position as compared to an ordinary person being questioned. “The fact of detention alone may cause a person to feel compelled to make a statement” (Tessier, para 75). In these circumstances, the absence of a caution would carry far greater weight.
In the absence of the person being detained, however, the majority recommended that a far lower degree of importance be attached to such cautions. In essence, they articulated a “spectrum” of danger – where an accused was detained, they would be under greater strain, and therefore the absence of a caution would be of greater importance there. But in other circumstances, the “danger” did not quite exist (Tessier, paras 78-79). In such situations, the “totality of the circumstances” would be of greater importance (Tessier, para 77).
“To call for cautions in all circumstances would unnecessarily inhibit police work. Where a person faces no apparent legal jeopardy and the intentions of police are merely to gather information, an imposed caution could even chill investigations. Effective law enforcement is also highly dependent on the cooperation of members of the public… Where a contextual analysis reveals that no unfairness has arisen and no Charter protections were engaged, a bright-line rule to caution everyone could disturb the balance struck by the confessions rule by excluding reliable and fairly-obtained statements.” (Tessier, para 76).
The majority then went on to articulate a test for assessing the weight to be placed on the absence of a police caution. Firstly, the court must consider whether or not the person was a suspect. This was to be determined on the basis of an objective test: “Whether there were objectively discernible facts known to the interviewing officer at the time of the interview, which would lead a reasonably competent investigator to conclude that the interviewee is implicated in the criminal offence being investigated” (Tessier, para 82-83).
Once the court determines that a person was a suspect, the absence of a police caution was prima facie evidence of “an unfair denial of the choice to speak to police.” (Tessier, para 83). The Crown faces the burden of proof when it comes to overcoming this prima facie evidence. This is a heavy burden, but if the Crown is able to “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.” (Tessier, para 89)
In this case, the majority held that Mr. Tessier was not physically or psychologically detained at the time of his interviews, and further that he was aware that his statements could be used as evidence in a future trial despite the absence of a police caution (Tessier, paras 95-97). The majority, therefore, held that his statements were voluntary, and therefore were not vitiated by the confessions rule. Mr. Tessier’s conviction was restored.
Justices Brown and Martin dissented. Noting that the majority had made a ‘salutory change’ in the law, they went on to say that the majority essentially presumed that the absence of a caution where suspects were concerned would “unfairly deprive individuals of making a ‘free and meaningful choice to speak to police’ when they are at ‘risk of legal jeopardy’” (Tessier, para 116).
The dissenting judges agreed with the principle, but not with the limitations on its applications. They argued that in order to truly fulfil the objective of ensuring such ‘free and meaningful choice’, such a warning must be provided prior to all interviews, not just those of suspects. “In our view, any interview conducted without a warning is presumptively involuntary, and the presumption should be more difficult to rebut where the interviewee’s risk of self-incrimination was objectively heightened.” (Tessier, para 117). The Crown would face the burden of rebutting this presumption in all cases, and would face a heightened burden of rebuttal when it came to suspects, or where there was an objective rise in the risk of self-incrimination. This would apply regardless of whether or not the investigating officer subjectively viewed the individual being questioned through that lens (Tessier, para 120).
Relying on case law, the dissent noted that voluntariness necessarily required a meaningful choice, and that a meaningful choice must necessarily be an informed one (Tessier, paras 140, 118). There could not be a presumption that people were pre-emptively aware of their rights; this could lead to the grave danger of self-incrimination (Tessier, para 119). As a result, in order for such a meaningful choice to exist, the interviewee must have “actual knowledge of the legally available options” (Tessier, para 118).
The dissent justified this position on two grounds. They noted that firstly, if the interviewees were made aware of their legal options, they would necessarily make an informed choice (Tessier, para 122). Secondly, the police would have a clear bright-line rule which could be easily implemented without any blurring of lines (Tessier, para 123). The judges noted that it is not always easy to demarcate clear lines between an ordinary interview and that of a suspect; sometimes, a person becomes a suspect in the course of a conversation (Tessier, para 123).
Lastly, the court noted that the implementation of such a standard would also allow the Crown to more easily meet the voluntariness inquiry inherent in the confessions rule, as “meaningful choice” would be established.
Applying this test to the circumstances in the case, the dissent held that the failure of the police to give Mr. Tessier adequate caution amounted to fulfilling the requirements of the confessions rule – it was made in circumstances where there was a reasonable doubt with regard to voluntariness. As such, they held that they would dismiss the appeal and uphold the appellate judgement in setting aside the conviction and ordering a new trial.
When it comes to choosing between the rights of the accused versus the objectives of the State in exercising its law-enforcement function, the courts have generally overwhelmingly sided with the former as a result of the presumption of innocence. In recent times, with increasing awareness of policing overreach, it becomes ever more important to ensure that there are clearly defined lines around what the police are allowed to do.
The majority’s judgement muddies the waters; indeed, the dissent notes as much when it states “Contrary to… the majority’s reasons, it will not unduly interfere with police investigations [to require that caution be provided before all interviews]. Nor can we endorse 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.” (Tessier, para 125).
The key principle running through criminal law is the presumption of innocence. One of the most visible forms of the way the presumption is formulated is through the safeguards against self-incrimination. This is the ill that the confessions rule attempts to remedy. The majority’s view – that ordinary interviews do not require a caution as to the possible use of those words as evidence against their speaker – is based on the presumption that it is relatively easy to distinguish between suspects and other interviewees. In reality, the dissent has it right in noting that these distinctions are often very fluid, and indeed that a person can evolve from one to the other in the course of a single conversation. When that happens, it becomes difficult to delineate at what point the caution ought to have been given. Having a universal standard would allow not only the interviewees, but also the police, more clarity.
It also leads to a complicated interpretation of the law in situations such as Mr. Tessier’s. Mr. Tessier was physically present in a police station, where he was interviewed by multiple police officers on more than one occasion. The police followed him to his home, and where he showed them his gun cabinet before receiving a caution. In these circumstances, can his statements truly be said to be voluntary in nature?
The majority’s judgement also contains a cognitive dissonance, for surely, suspects in cases are not always suspects, but indeed become so due to some action or evidence to that effect. At the time of Mr. Tessier’s interviews, for example, he was not considered a suspect, and as a result, was considered as having some sense of knowledge regarding the fact that his statements could be used against him. As soon as he became a suspect, he is, under the new rule, effectively held to lose this knowledge; a bizarre turn of the law that does not align with the principles associated with the common law confession rule.
The confessions rule has always been a delicate balancing act between the right against self-incrimination and policing objectives in general. However, the latter cannot be allowed to muddy the former, which is a constitutionally protected right that forms part of the very framework of evidence and criminal law. The Supreme Court’s decision is only likely to cause more confusion in the future.