Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Tessier, 2022 SCC 35, October 14, 2022, the accused was convicted of the offence of murder.  At his trial, the Crown was allowed to introduce as evidence a statement the accused made to the police at a police station. The accused had not been advised of his right to contact counsel or cautioned by the police that he had the right to remain silent or that his statement could be used in evidence, before providing the statement.

The trial judge concluded that the statement had been provided voluntarily and the accused had not been detained. On appeal, the Alberta Court of Appeal ordered a new trial, holding that the trial judge erred in admitting the statement. The Crown appealed to the Supreme Court of Canada.  

The Supreme Court indicated that the appeal raised “the following two issues” (at paragraph 38):

•       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?

The appeal was allowed and the conviction reinstated.  The Supreme Court held that the accused was not detained and therefore section 10(b) of the Charter was inapplicable.  In addition, the Court held that “failure to provide a caution is not in itself fatal to admissibility”. However, the Court also indicated that the “absence of a caution for a suspect constitutes prima facie evidence that they were unfairly denied their choice to speak to the police”.  In such a circumstance, the Crown must “show that the absence of a caution did not undermine the suspect’s free choice to speak to the police as part of the contextual examination of voluntariness” (at paragraphs 7, 8 and 9).

Absence of a Caution:

The Supreme Court held that if “a court reaches the conclusion that a person was a suspect, the absence of a police caution is not merely one factor among others to be considered. Rather, it 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 (see Oland, at para. 42). It cannot be washed aside in the sea of other considerations. Instead, it serves to impugn the fairness of the statement and must be addressed, by the Crown, in the constellation of circumstances relevant to whether the accused made a free choice to speak. In discharging its burden to prove beyond a reasonable doubt that a statement was voluntary, the Crown will need to overcome this prima facie evidence of unfairness” (at paragraph 83).

The Court summarized the elements of the “confession rule” in the following manner (at paragraph 89):

In summary, the confessions rule always places the ultimate burden on the Crown to prove beyond a reasonable doubt that a statement made by an accused to a person in authority was made voluntarily. When an accused brings a voluntariness claim with respect to police questioning that did not include a caution, the first step is to determine whether or not the accused was a suspect. 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. It is credible evidence of a lack of voluntariness that must be addressed by the court directly. Depending on the circumstances, it is potentially relevant to different Oickle factors as well as any other considerations pertinent to voluntariness. However, the absence of a caution is not conclusive and 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. If the circumstances indicate that there was an informational deficit exploited by police, this will weigh heavily towards a finding of involuntariness. But 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 Case:

The Supreme Court concluded that the “voluntariness issue in this case is about fairness. Mr. Tessier did not argue that any of the statements made to Sgt. White were inaccurate. No reliability concerns arise. Rather, the case is about whether Mr. Tessier was treated unfairly by police such that he was denied a meaningful choice to speak to them. Nothing about the circumstances of his statements suggests this. Mr. Tessier was well aware of the nature of the investigation and sought to manage the information conveyed to Sgt. White in a manner that suited him. There were no threats or police tricks, nor was there an atmosphere of oppression. Accepting that he erred in deciding that Mr. Tessier was not a suspect during the interviews of March 17, 2007, the trial judge’s conclusions that Mr. Tessier’s statements were voluntary and that he exercised a free choice to speak should not be disturbed” (at paragraph 102).


The Supreme Court held that the “psychological detention question in this case is governed by the three factors discussed in Grant and affirmed in Le.  Psychological detention exists 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’” (at paragraph 105).

This Case:

The Supreme Court concluded that in this case, the “three Grant factors weigh against finding that Mr. Tessier was detained” (at paragraph 107):

All three Grant factors weigh against finding that Mr. Tessier was detained. The initial contact was in the form of a general inquiry, and Mr. Tessier would not have felt singled out for a focussed investigation given that he knew others were being interviewed as well. Mr. Tessier attended the detachment through his own means. Although the situation changed when Sgt. White asked a series of pointed questions that suggested police thought Mr. Tessier was culpably involved, a reasonable person in his shoes would not have felt obliged to comply in the circumstances. Mr. Tessier was aware that police were investigating the homicide of his friend and, when challenged, he provided an exculpatory narrative and sought to direct suspicions elsewhere. At no point did Sgt. White state or imply that Mr. Tessier would not be free to go. Instead, after denying his involvement, Mr. Tessier used that moment to relieve the increased pressure on him by going outside for a smoke. Mr. Tessier clearly possessed the agency to leave the interview room and, crucially, he declined to cooperate with the DNA sample upon his return after consulting with his friend.