In R v Tessier, 2022 SCC 35, the Supreme Court of Canada restored a murder conviction, clarifying two aspects of the confessions rule and holding the absence of a police caution does not necessarily foreclose the admission of statements made by an accused at trial.
A homicide victim was found dead in a ditch by a rural road, and 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 accused was questioned twice. He was not told that he had the right to remain silent, nor was he cautioned that, if he did speak to authorities, what he said could be taken down and used as evidence in court. Prior to the first interview, the investigating officer had received information that might implicate the accused, including that tire tracks found at the scene indicated a wheel diameter compatible with several types of vehicle, one of which could have been the make owned by the accused. While the accused did not confess, his answers included comments the prosecution sought to introduce at trial to show that he committed a crime. At the time of the interviews, the accused was not under arrest and was not physically detained.
The trial court found the accused was not a suspect at the time of his interview, and that his statements were made voluntarily. Further, the trial court determined the accused had not been psychologically detained, with the result that his Charter rights to silence and counsel had not been engaged, and proceeded to admit the statements at trial. The accused was then convicted of first-degree murder.
The Alberta Court of Appeal set aside the conviction and ordered a new trial, concluding the trial court erred in deciding the statements were made voluntarily. Specifically, the Court of Appeal held the accused was denied a meaningful choice to speak to police, since the absence of a police caution affected the accused’s subjective knowledge that he was free not to answer police questions.
The Supreme Court revisited the common law confessions rule, which requires the Crown to prove beyond a reasonable doubt that statements made by an accused to persons in authority were voluntary. Where they are not, the statements are inadmissible as against the accused. In so doing, the Supreme Court analyzed 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.
REQUIREMENTS OF THE OPERATING MIND DOCTRINE
The Supreme Court reviewed jurisprudence on the operating mind doctrine, holding that it simply requires the Crown to show that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend the statement might be used as evidence in criminal proceedings.
The Supreme Court held the Court of Appeal had improperly widened the scope of the operating mind doctrine, by not confining its application to simply require the limited cognitive ability described above but also requiring the accused to possess a subjective awareness of what is at stake when making a statement to a person in authority.
The Supreme Court held the default assumption is that, absent a cognitive impairment, an operating mind exists. Beyond that basic assumption, the Crown has a burden to prove the statement was voluntary considering the broader contextual analysis. In short, an operating mind is a necessary, but not sufficient, condition for voluntariness.
IMPACT OF THE ABSENCE OF A CAUTION ON VOLUNTARINESS
First, the Supreme Court determined that the Court of Appeal erred in deciding the “suspect rule of thumb” was not a legal test. The suspect rule of thumb is an analytical tool which helps assess the impact of a failure to caution on the voluntariness of a statement. Where the accused is not a suspect (as the trial judge found here), the failure to provide a caution will weigh less on the determination of whether a statement was given voluntarily.
The Supreme Court agreed with the trial judge’s statement of the test, which defines a suspect as “a person who, through information that the police collect during an investigation, viewed objectively, tends to implicate that person in a crime”.
Justice Kasirer, writing for the majority, determined the trial judge committed a palpable error in concluding the accused was not a suspect for the purposes of the confessions rule, by neglecting to consider two critical facts. First, the interviewing officers were aware that tire tracks left at the scene of the homicide could potentially match those of the accused’s truck. Second, following the interview, a surveillance team was put in place to observe the accused. However, the Supreme Court determined these palpable errors were not material to the accused’s conviction, as the trial judge had properly considered the context of the accused’s statements as though he were a suspect.
Finally, the Supreme Court sought to balance the accused’s interests with the social interest of properly investigating crime. Requiring a caution in every circumstance where individuals provide statements to police, irrespective of whether they are suspects or detained, would “disturb the balance struck by the confessions rule by excluding reliable and fairly-obtained statements”, and “unduly limit the broader societal interest in investigating crime”.
To strike the balance properly, the Supreme Court describes the proper approach to assessing the impact of the absence of a caution on voluntariness. First, the court must identify whether the accused was a suspect, as the suspect test is a useful way of determining whether an accused may have been unfairly denied their right to silence. To determine whether an individual is a suspect, an objective test is applied. The test requires the presence of discernable facts known to the interviewing officer at the time of the interview that would lead a reasonably competent investigator to conclude the interviewee is implicated in the criminal offence being investigated.
Once a court determines the accused was a suspect, the absence of a police caution is prima facie evidence of an unfair denial of the choice to speak to police, and courts must explicitly address whether the failure created an unfairness in the circumstances. Where there is proof the accused was subjectively aware of their right to silence, this will serve as powerful evidence the absence of a caution did not undermine voluntariness.
However, the Crown is not required to adduce that proof, nor does it displace the settled test for an operating mind. Even where the police exploit an informational deficit, the Crown may nevertheless discharge their burden to prove voluntariness by showing there were no signs of threats or inducements, oppression, police trickery or lack of operating mind.
The Supreme Court in Tessier sought to clarify the application of the voluntariness component of the common-law confessions rule by giving effect to competing interests: the social interest of prosecuting crime with the personal interest of an accused’s avoidance of self-incrimination and preservation of liberty. Courts must assess the totality of the circumstances. The Crown still faces an onerous burden to prove, beyond any reasonable doubt, the accused’s statements were voluntary, but the burden does not extend to requiring proof the accused subjectively understood the right to silence and the consequences of speaking.
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