This week’s top three summaries: R v Tessier, 2022 SCC 35: voluntariness and #police caution, R v Nahanee, 2022 SCC 37: Crown position at #sentencing, and R v Royal, 2022 ABCA 330: #contempt jurisdiction.

This week's top case deals the admissibility of statements by an accused. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

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By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace

The first treatise to provide a truly practical and comprehensive guide to criminal evidence law in Canada. This casebook guides readers through evidentiary issues in all components of criminal law, providing indispensable insight from Crown, defence, and judicial perspectives.

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R v Tessier, 2022 SCC 35

[October 14, 2022] Voluntariness: The Police Caution and Suspect Status [Majority Reasons by Kasirer J. with Wagner CJ, Moldavia, Karakatsanis, Côté, Rowe and Jamal JJ, Concurring]

AUTHOR’S NOTE: This case marginally moves the law forward to prevent police from utilising the ignorance of rights by targets of their investigations to obtain confessions. The main two positive differences are: 1. A recognition that once a person ought reasonably be a suspect (ie. to the ken of a reasonably competent investigator) then the failure to provide a police caution will render the subsequent statement prima facie involuntary, 2. that this protection does not require the person to be detained. Consequently, there is an extension of protection from a police caution beyond the point of detention. Voluntariness litigation will now have to focus on the point at which a reasonably competent investigator would have know the interviewee was implicated in the criminal offence being investigated. 

I. Overview

[1] When questioned at a police station in connection with a murder investigation, Russell Steven Tessier was not told that he had the right to remain silent. He was not cautioned that, if he did speak to the authorities, what he said could be taken down and used as evidence in court. While he did not confess, Mr. Tessier’s answers to police questions included comments that the prosecution sought to introduce at trial to show that he committed the crime. At the time of the interviews, Mr. Tessier was not under arrest and he was not physically detained. The parties disagree whether he had become a suspect over the course of the interviews and whether he had been psychologically detained by reason of the police conduct at the station.

[8] As part of its persuasive burden to prove voluntariness beyond a reasonable doubt at trial, the Crown must, in my view, 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. It is an important factor that must be addressed by the Crown by pointing in particular to circumstances that prove beyond a reasonable doubt that the suspect possessed an operating mind and voluntariness was not otherwise impugned....

...Where the police do not provide a caution in the circumstances in which, as Charron J. says, they would be well advised to do so, the Crown must show further that the police conduct did not unfairly frustrate the suspect’s ability to understand that what they were saying could be used in evidence, that they were not subject to police trickery and that there were no circumstances that would otherwise cast doubt on voluntariness.

[9] Drawing on scholarly commentary on the burden of proof relating to the operating mind dimension of voluntariness, I would recognize 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 circumstances in which the accused has raised credible evidence that their status at the time of questioning was that of a suspect, the presence or absence of a caution takes on meaningful significance. Where the accused further puts the lack of a caution and their increased legal jeopardy into evidence — by cross-examining Crown witnesses or otherwise — they have met their evidentiary burden that raises the issue as to whether their statements were freely given. It then falls to the Crown to discharge its persuasive burden by proving either that the accused was not in legal jeopardy, in that they were a mere witness and not a suspect, or that the absence of a caution was without consequence and that the statements were, beyond a reasonable doubt and in view of the context as a whole, voluntary. This would give substance to the recommendation formulated by Charron J. in Singh for trial judges seeking to weigh the importance of a lack of caution. [PJM Emphasis]

[10] Beyond merely showing that the person questioned had an operating mind, there may also be circumstances in which the absence of a caution is in point of fact a willful failure by the police to give a caution. This might reflect a deliberate tactic by the police to manipulate the individual into thinking that they are a mere witness and not a suspect so that, in making a statement, their jeopardy is not at risk. Where the failure to caution a suspect amounts to trickery, the effect of the police conduct may have an impact on voluntariness and should be analyzed in that light (see Oickle, at paras. 67 and 91).

[11] As Charron J. observed in Singh on the question of voluntariness, “the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will” (para. 36). If the Crown cannot prove that the absence of a caution had no impact on voluntariness, the prima facie evidence of involuntariness raised by the absence of a caution will lead to a conclusion of inadmissibility. The absence of a caution weighs heavily because, where unaddressed, it represents prima facie evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot be considered voluntary. This does not displace the ultimate burden on the Crown to prove voluntariness beyond a reasonable doubt. Rather, it emphasizes the legal significance of the absence of a caution as a potential sign of involuntariness where a person is a suspect.

[12] ...Where knowledge can be shown, courts have forgiven the lack of caution, but just as the caution is not obligatory, proof of actual knowledge of the right to silence or the consequences of speaking to prove voluntariness is not either. That high standard applied in all cases in the pre-detention phase of an investigation could upset the balance of individual and social interests upon which the confessions rule rests.

[13] ...I agree with the Court of Appeal that some of the trial judge’s explanations of the voluntariness rule were incomplete. However, with the utmost respect, I disagree that these amounted to reviewable legal errors that undermined the finding at trial that Mr. Tessier’s statements to the police were voluntarily made. Even in the absence of a caution, and even if one were to consider Mr. Tessier to have been a suspect at the time of questioning, the record confirms that the trial judge’s determination on voluntariness should not have been disturbed on appeal.

[16] The first interview lasted about 105 minutes. Prior to the meeting, Sgt. White had some information about the victim and his connection to Mr. Tessier....

...He was aware that Mr. Tessier had recently been in the company of Mr. Berdahl and was thought to be the last person to have seen the victim alive. He knew that the tire imprints found at the scene indicated a wheel diameter compatible with several types of vehicle, one of which could have been the make owned by Mr. Tessier. Sgt. White also had learned from the victim’s ex-girlfriend that Mr. Tessier had “a falling out” with Mr. Berdahl about a car and money (A.R., vol. II, at pp. 26-27).

[17] Mr. Tessier was advised that the RCMP was investigating the homicide of Mr. Berdahl. The purpose of the interview, he was told, was to obtain a biography of the victim. Sgt. White did not expressly say that Mr. Tessier was free to leave when he wanted.

[19] About mid-way through the interview, Sgt. White asked Mr. Tessier for a DNA sample so the police could compare it to any DNA found at the crime scene which, he said, was a technique used as a matter of course to eliminate people from investigation....

...Sgt. White asked Mr. Tessier if he killed Mr. Berdahl. “No I didn’t”, Mr. Tessier responded (p. 127). Sgt. White asked if Mr. Tessier could “prove” he did not do it (p. 127). Sgt. White again requested a DNA sample. Mr. Tessier stated, “Why wouldn’t I?” (p. 129). Mr. Tessier then asked to go outside for a smoke, which he did unattended. While outside, Mr. Tessier consulted with his friend, who advised him not to provide the sample. He was observed by an officer while outside. Upon returning, Mr. Tessier declined to provide the sample as he did not want to be “painted into a corner” (p. 130). He explained, “I’m the only person that you guys got and that’s not good. . . . [T]his is bothering me” (p. 130). Mr. Tessier did allow Sgt. White to take a photograph of the sole of his shoe.

[21] Soon after the first interview, Mr. Tessier called Sgt. White and left him several voice messages, seeking to provide him with additional information. Receiving no response, Mr. Tessier returned that same day to the Didsbury detachment at about 5:10 p.m. looking for Sgt. White. A second interview began. Sgt. White informed Mr. Tessier that he was turning the recorder on again. Mr. Tessier said that he had recently retrieved a firearm from a shooting range, and he wanted a police officer to come to his apartment in Calgary to confirm that it was still in his bedroom closet....

[22] Mr. Tessier was charged with first degree murder in 2015 when his DNA was matched to a cigarette butt found near the scene.

[52] Respectfully, the cases do not support the Court of Appeal’s wider interpretation of the operating mind doctrine. In the context of a detained or arrested suspect, the cases that employ the language of “choice” use it as a shorthand for voluntariness, to speak to the idea that a voluntary statement reflects an exercise of free choice which choice may be frustrated by the conduct of police (Boudreau, at pp.269-71; Whittle, at pp.932 and939; Hebert, at p.181; see also Oickle, at paras. 24-26; Singh, at paras. 35 and 53). The terms variously used in these cases, including “free”, “active” and “meaningful” choice, are not predicated on any normative difference existing between them. All have been invoked in the jurisprudence to convey that the choice is voluntarily exercised when it is the product of an operating mind, as well as the absence of other factors as the context indicates, including police tricks, that would otherwise impugn voluntariness....

[54] On my reading, however, the Court of Appeal introduced a level of subjective knowledge beyond what the cases require when it held that “an operating mind is not the only mental element required for a statement to be voluntary” and that a meaningful choice requires “knowing that [one is] not required to answer police questions, or that anything [said] would be taken down and could be used in evidence” (paras. 29 and 54). I agree with the Crown that the standard as described by the court would effectively require proof of actual knowledge that the accused did not have to say anything to the police and that anything said could be taken down in evidence, which, as a practical matter, would oblige the Crown to prove that a police caution was given and properly understood.

[61] I accept the argument that the trial judge committed palpable errors in concluding that Mr. Tessier was not a suspect....

...First, at the start of the interview, when the police observed that Mr. Tessier did not arrive at the station in his own vehicle, another officer, Cst. Heidi Van Steelandt, was tasked with going to the place where he was staying in Didsbury to examine Mr. Tessier’s Ford pickup. It was confirmed that the tires of that vehicle could match the traces observed at the scene of the homicide. This information was relayed to the detachment while Mr. Tessier was still at the station. The trial judge noted that the police knew there were tire tracks at the scene and what kind of truck Mr. Tessier drove (para. 50). But as Mr. Tessier argued before us, the trial judge made no mention that the police learned that the tire tracks matched the make of Mr. Tessier’s truck. Second, following the interview, a surveillance team was put in place to observe Mr. Tessier. Despite Cst. Van Steelandt’s testimony on this, the trial judge accepted Sgt. White’s statement that Mr. Tessier was not a suspect without addressing these points. The trial judge’s omission to consider the fact that the surveillance team had been put in place was also a palpable error in that it was a plain sign that suggests Mr. Tessier was suspected by police. In light of these two omissions, I am of the respectful view that the judge further underestimated the significance of the pointed questions posed by Sgt. White, including the direct suggestion that Mr. Tessier was culpably involved in the homicide, as a sign, viewed objectively, that Mr. Tessier was a suspect. These factual errors suggest strongly that the trial judge misapplied the objective test for determining whether Mr. Tessier was a suspect, or at least became a suspect, at the time of the interviews.

[62] ...The trial judge continued, as an alternative and in the event that he was mistaken, to assess the circumstances as though Mr. Tessier were a suspect, and concluded that the absence of the caution would not have been fatal in this context. Even where a person is a suspect, the cases are clear that there is no bright-line rule that a caution is required and that its absence renders a statement involuntary...

[63] In summary, while the trial judge was imprecise in some of his exposition of the law relating to the confessions rule, I am of the view that the Court of Appeal wrongly characterized these as errors of law and that, in themselves, these imprecisions had no material impact on the trial judge’s analysis. When his reasons are read as a whole, it is plain that the trial judge’s understanding of the law was not erroneous, even acknowledging that Mr. Tessier was likely a suspect. Given the trial judge’s palpable errors of fact, however, and the relevance to the analysis of the caution, it is necessary to apply the law afresh to explain why the judge’s errors are not overriding. I will return to that question after discussing the impact of the absence of a caution on voluntariness in the pre-detention phase.

B. In the Pre-detention Phase of the Criminal Investigation, How Does the Absence of a Caution During Police Questioning of Mr. Tessier Affect the Voluntariness of His Statements?

[68] The law relating to the modern confessions rule in Canada is settled. A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness (Oickle, at para. 68). 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 (Singh, at para. 35; R. v. Kelly, 2019 NLCA 23, 374 C.C.C. (3d) 360, at para. 40). It involves consideration of “the making of threats or promises, oppression, the operating mind doctrine and police trickery” (R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 12). These factors are not a checklist: ultimately, a trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority (Parent, at pp. 26-27; Vauclair and Desjardins, at No. 38.28).

[69] ...Justice mandates a recognition that the rights of the accused are important but not without limit; it also insists that the police be given leeway in order to solve crimes but that their conduct not be unchecked...

...In seeking this balance, the law imposes the heavy burden on the Crown to prove voluntariness beyond a reasonable doubt, which serves as substantial protection for the accused at all stages of a criminal investigation. Unlike the burden under the Charter, where the accused must establish a breach on a balance of probabilities, the confessions rule begins from a place of heightened protection for the accused because the rigorous task of showing voluntariness lies with the Crown.

[70] The rule is animated by both reliability and fairness concerns, and it operates differently depending on context. As Iacobucci J. explained in Oickle, while the doctrines of oppression and inducement are primarily concerned with reliability, other aspects of the confessions rule, such as the presence of threats or promises, the operating mind requirement, or police trickery, may all unfairly deny the accused’s right to silence (paras. 69-71; Rothman v. The Queen, [1981] 1 S.C.R. 640, at pp. 682-83 and 688, per Lamer J.; Hebert, at pp. 171-73; Whittle, at p. 932; R. v. Hodgson, [1998] 2 S.C.R. 449, at paras. 21-22; Singh, at para. 34). A statement may be excluded as involuntary because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence, whatever the context indicates. It may be excluded if it was extracted by police conduct [TRANSLATION] “[that] is not in keeping with the socio-moral values at the very foundation of the criminal justice system” (J. Fortin, Preuve pénale (1984), at No. 900).

[71] Even if reliability and fairness concerns are often tightly intertwined, the police caution is typically understood as speaking to fairness, as the case of Morrison, cited here by the trial judge, has emphasized....

...In most cases, however, it speaks to fairness, in the sense that the absence of a caution may unfairly deprive someone of being able to make a free and meaningful choice to speak to police when, as a suspect, they are at a risk of legal jeopardy.

[72] ...The confessions rule is also about protecting innocent defendants from false confessions and protecting suspects from abusive police tactics, which are distinct purposes reflected in their own ways in the threats or inducements, oppression and trickery factors. These concerns persist even where a caution has been properly delivered and understood. Contextual analysis is required to extend adequate protections to suspects beyond what the caution provides on its own, a point recognized in Boudreau.

[74] To make the absence of a police caution determinative of voluntariness would risk inhibiting legitimate investigative techniques while ignoring the other protections provided by the rule. As one author put it, “[t]o strive for equality of knowledge . . . is to strive to eliminate confessions” (Grano, at p. 914)....

[75] That said, there is no doubt that a caution can contribute to ensuring that an investigation is conducted fairly, especially where a suspect is detained and in a state more prone to making involuntary statements....

...The fact of detention alone may cause a person to feel compelled to make a statement (para. 32; see Grant, at paras. 22 and 39; Hebert, at pp. 179-80). The caution is required to attenuate the informational deficit in the face of heightened risk and vulnerability. Even if one acknowledges that many encounters with the police can be daunting, fairness considerations are unlikely to arise in the same way where the person is not suspected of being involved in the crime under investigation. Fairness concerns are manifest once an individual is targeted by the state. There is nothing inherently unfair, for instance, about police questioning a person standing on the street corner without providing a caution while gathering information regarding the potential witnessing of a crime.

[76] Yet in the specific context where a mere witness or an 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. Questioning at a police station is, to be sure, qualitatively different if the circumstances suggest that the interviewee brought or summoned for questioning is, on an objective basis, a suspect deserving of a caution....

...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. It is preferable to allow courts to take measure of the true circumstances of the police encounter flexibly. In the spirit of Charron J.’s suggestion in Singh, courts should pay particular attention to whether the absence of a caution has had a material impact on voluntariness in a manner which would warrant exclusion of the statement.

[77] As a suspect who was not detained, Mr. Tessier’s circumstances lie between these extremes. Contrary to the Crown’s suggestion, there are fairness reasons why the caution may take on greater importance once a person becomes a suspect. A person in Mr. Tessier’s situation may also experience heightened vulnerability, but to a lesser degree than someone who, arrested and detained, is more fully under the control of the state....

...Conversely, even with an operating mind, conduct of the police may unfairly deny them that choice. All of this to say that the totality of the circumstances will be important in determining whether a statement made by a suspect who is not detained has been unfairly obtained.

(2) Consequences of the Absence of a Caution

[78] I agree with the Attorney General of New Brunswick that the weight to be given to the absence of a caution will fall on a spectrum. At one end, the significance attached to the failure to caution an uninvolved individual — such as the person on the street corner — will typically be negligible....

[79] At the other end of the spectrum, the vulnerability and legal jeopardy faced by detainees cement the need for a police caution. Fairness commands that they know of their right to counsel and, by extension, of their right to remain silent so that they can make an “informed choice” whether or not to participate in the investigation (I borrow the expression “informed choice” from Singh, at para. 33)....

The weight attached to the absence of a caution in these circumstances, while not determinative of the question of voluntariness owing to the contextual analysis required, will be at the highest end (see Singh, at para. 33).

[80] In circumstances in between, where police interview a suspect who is not detained and do not provide a caution, I agree with the longstanding view that the lack of caution is not fatal, but that it is an important factor in determining voluntariness (see generally Kaufman, at pp. 142-46)....

...This builds incrementally on Charron J.’s helpful reasons on this point in Singh. The heightened jeopardy and consequential vulnerability faced by a suspect, as opposed to an uninvolved individual, warrants special consideration in the final analysis to ensure adequate and principled protections under the confessions rule. Although encounters between police and citizens sometimes mean the status of a person may change over the course of an interview, investigators are well accustomed to signs that raise their suspicions. This would be the proper moment to caution the interviewee to prevent the potential exclusion of the statement at trial.

[81] The first step in assessing the importance of the absence of a police caution is therefore to identify whether or not the person was a suspect.... The test is as proposed by the Attorney General of New Brunswick: 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 is implicated in the criminal offence being investigated (see Morrison, at para. 50; Oland, at paras. 43-46; Smyth, at pp. 34-36; Wong, at para. 64; Merritt, at para. 39; Higham, at paras. 5-7). [PJM Emphasis]

[82] The test is objective, and includes both an assessment of the objectively discernable facts known at the time and the interaction between police and the interviewee. Pointed questions, particularly where they suggest the culpable involvement of the individual being questioned, may indicate that the person is a suspect, but pointed questions may have other legitimate ends, depending on the circumstances. A trial judge is best positioned to determine whether the police were simply seeking to gauge a person’s reaction to certain lines of questioning, or whether the questioning is more consistent with the interrogation of a true suspect....

[83] Once 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. [PJM Emphasis]

[84] This adjustment should be understood in light of the allocation of the evidential and persuasive burdens of proof which, for the operating mind test, is explained as follows by authors Lederman, Fuerst and Stewart, at ¶8.119, citing Ward, at p. 41, and R. v. Lapointe and Sicotte (1983), 9 C.C.C. (3d) 366 (Ont. C.A.), at p. 383, aff’d [1987] 1 S.C.R. 1253:

A final consideration under the operating mind test is the allocation of the evidential burden and [the] persuasive (legal) burdens of proof. Inasmuch as the accused may be the only person who has knowledge of these subjective matters, the evidentiary burden to adduce sufficient evidence to raise the issue should be allocated to the accused. . . . Once the accused has adduced sufficient evidence to make it a live issue, the Crown must then satisfy the trial judge beyond a reasonable doubt that the statement was voluntary.

[85] ...I propose to recognize that the absence of a caution to a suspect constitutes prima facie evidence that an accused was unfairly denied their choice to speak to the police. This is sufficient to render the absence of a caution a live issue that the Crown must dispel in order to establish the voluntary character of the statement beyond reasonable doubt.

(3) Legal Framework

[86] In the course of cross-examination of police witnesses or upon hearing the accused’s own testimony, it may come to light that the accused was in a situation of heightened vulnerability and risk, either because they were detained or a suspect, and were not given a caution despite being suspected of a crime. That is sufficient to cast doubt on whether the interviewee spoke voluntarily as understood in Whittle and Oickle; that is, that the accused had the ability to understand what was being said and that it may be used in evidence, and that there was no other recognized consideration impugning voluntariness. The accused thus has met their evidentiary burden to make the absence of a caution a “live issue”; in keeping with its persuasive burden, the Crown must then satisfy the trial judge beyond a reasonable doubt that the statement was nevertheless voluntary. [PJM Emphasis]

[87] In these circumstances, it is appropriate for the trier of fact to undertake a contextual inquiry to determine whether an unfairness arose that vitiates voluntariness by denying the right to silence. This might arise where there is evidence of police trickery, for example circumstances in which the absence of a caution is the result of a willful failure to give a caution or a deliberate tactic to manipulate the suspect into thinking they have nothing at stake (see, e.g., R. v. Crawford, [1995] 1 S.C.R. 858, at para. 25; R. v. Auclair (2004), 183 C.C.C. (3d) 273 (Que. C.A.), at para. 41; M. (D.), at para. 45; Higham, at para. 22). Impropriety on the part of the police, usually in the form of obscuring the jeopardy faced by the suspect to encourage cooperation, may unfairly deny a suspect their right to silence. Plainly, the statement should be excluded if the police deception shocks the community. But even if it does not rise to that level, deceiving the interviewee into thinking that, as a mere witness, they are in no jeopardy and that their statements will not be used in evidence against them could preclude admissibility at the end of the day. “[T]he ability to make a meaningful choice remains pertinent where trickery is involved”, write Lederman, Fuerst and Stewart, “and exclusion is mandated where there is a reasonable doubt as to the confession’s voluntariness in this regard” (¶8.126). I would note there is a distinction between misleading a person about the extent of their jeopardy and declining to inform a person that they are a suspect....

[88] While not necessary for the Crown to demonstrate, proof that the accused was in fact subjectively aware of their right to silence or aware of the consequences of speaking will be powerful evidence that the absence of a caution did not undermine voluntariness....

...Stated non-exhaustively, indications that a suspect may be aware of the right to silence or the consequences of speaking include awareness of being recorded (R. v. Leblanc (2001), 162 C.C.C. (3d) 74 (Que. C.A.), at para. 17), indications that the suspect is directing conversation (Boothe, at para. 20 (CanLII)), awareness of what the police are investigating and the suspect’s alleged role in the investigation (M. (D.), at para. 45; Leblanc, at para. 26), and exercising the right to silence by declining to answer police questions (M. (D.), at para. 46)....

...where there is evidence that the accused was aware of their right to silence or of the consequences of speaking, the weight attached to the absence of a caution becomes less important because there are other strong indications of voluntariness. An eagerness to talk, as in the case of Pepping (at para. 6), may or may not serve as evidence of voluntariness, depending on the circumstances. A person may appear eager to talk as a result of either a genuine interest in doing so or through a feeling of fear and compulsion.

(4) Summary

[89] ...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.... [PJM Emphasis]

...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.

(5) Application to the Facts

[90] ...I agree with the trial judge’s conclusion that the statements are admissible: Mr. Tessier did exercise a free or meaningful choice to speak to Sgt. White and he was not unfairly denied his right to silence. This is so even taking Mr. Tessier’s argument at its highest by accepting that he was a suspect. I shall assume that Charron J.’s recommendation applies here: Sgt. White should have cautioned Mr. Tessier at the outset of the interview. Given that there was a reasonable basis to consider Mr. Tessier a suspect and in light of the pointed questioning he faced, which was adversarial in nature, the absence of the caution raises prima facie proof that, on its own, satisfies the evidentiary burden that the Crown must address in its legal burden of proving voluntariness. But I am satisfied that the record substantiates the Crown’s argument, accepted by the trial judge, that Mr. Tessier had an operating mind and was not otherwise tricked in the circumstances. There are more decisive indications of voluntariness here, including circumstances that go above and beyond the basic requirements of an operating mind. The record contains strong signs, each of which points to the fact that Mr. Tessier was well aware of the consequences of speaking to Sgt. White. He knew that anything he said could be used as evidence, and knew that he had a choice between alternatives as to whether or not to cooperate with police....

[91] Informed that he was being recorded, Mr. Tessier began the interview anxious to convey information that would lead Sgt. White’s suspicions elsewhere. In particular, he noted at the outset that Mr. Berdahl’s ex-girlfriend “hate[d]” him, that Mr. Berdahl owes a lot of people money, and that when he heard Mr. Berdahl had been involved in a homicide, he thought Mr. Berdahl had been culpably involved....

[92] Mr. Tessier clearly knew that anything he said could be used as evidence. Not only was he advised at the start of the interview that it was being recorded, he made inquiries to ensure the recording was still live. He was told at times to speak up for the purposes of the recording. The obvious inference is that Mr. Tessier was aware that police were recording his statement for investigatory purposes related to the homicide of Mr. Berdahl. The trial judge took note of this (at para. 10); the Court of Appeal made no mention of Mr. Tessier’s awareness that the interview was being recorded and his expression of interest that his narrative was being caught on tape — an indication that he knew what police were investigating and what was at stake. To revert to the operating mind test in Whittle, Mr. Tessier not only had the ability to understand what he was saying but also to comprehend that the evidence may be used as evidence in criminal proceedings. Importantly, as was the case for the interviewee in Pepping, Mr. Tessier understood that the police officer was recording his statement and he sought to ensure that his own version of events would be part of that record.

[93] Mr. Tessier even made positive assertions that he would not cooperate, an indication that he knew his cooperation was voluntary and that when he spoke it reflected a choice between alternatives. After returning from his cigarette break outside the detachment where he freely conversed with his friend, and after Sgt. White confirmed the time for the purpose of the recording, Mr. Tessier then declined to provide his DNA sample,

[94] At other moments, there are indications that Mr. Tessier was attempting to craft an image of concern and selective cooperation, while attempting to find out what police knew. Early on in the exchange, he invited Sgt. White to ask questions about Mr. Berdahl, seemingly confident in the information he could provide. On several occasions Mr. Tessier inquired into what happened to Mr. Berdahl. He invited police to his home to sort through Mr. Berdahl’s possessions. These interactions suggest that Mr. Tessier was well aware that police were investigating the homicide of Mr. Berdahl and that anything he said could be used as evidence, an awareness that he unambiguously displayed when he said to Sgt. White, “I’m the only person that you guys got and that’s not good” (A.R., vol. IV, at p. 130). The exchanges also show an eagerness to talk and a perceived confidence in his ability to control the information provided to Sgt.White, further indications, when the whole of the context is considered, of the voluntariness of his statements. [PJM Emphasis]

[95] While he was not told that he was a suspect, Mr. Tessier was not misled about his jeopardy....

[96] In other words, Mr. Tessier was aware that the police might pursue him in a criminal investigation, and he sought to avoid that outcome by managing the information he conveyed to Sgt. White....

...As in that case, Mr. Tessier was eager to speak with Sgt. White, sought to ensure that his statement was being recorded, and took proactive steps to decline to cooperate when it suited him.

[97] The record makes plain that the trial judge’s conclusion that Mr. Tessier had an operating mind should not be disturbed on appeal. He knew that his statements to police could be used as evidence in criminal proceedings, and the absence of a caution did not give rise to an informational deficit that was unfairly exploited by Sgt. White. His choice to speak to the police was a free or meaningful choice.

[98] ...I note that Mr. Tessier does not argue that he was in some way threatened, tricked, or treated oppressively. At its highest, Mr. Tessier’s claim is that Sgt. White unfairly exploited an informational deficit, in particular through his pointed questions, and should have cautioned him. I have already described why that does not describe the circumstances of this case or decide the question....

[100] ...There is no suggestion here that Sgt. White engaged in even a lesser form of trickery by misleading Mr. Tessier about his jeopardy to encourage cooperation....

[101] And yet it bears recalling that it was during this period of increased jeopardy that Mr. Tessier conclusively showed his statements after the first interview to be voluntary: he repeatedly called Sgt. White and re-attended the detachment in person to look for him. That Mr. Tessier actively sought out Sgt. White to bring him to his home to check if his gun was in its case is an overriding indicator of voluntariness with respect to his statements after the first interview. It also provides general context consistent with his other efforts to cooperate and disclose information selectively.

[102] ...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.

[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.

[110] With respect to his interactions with police after the first interview, it is significant that Mr. Tessier repeatedly called Sgt. White and attended the RCMP detachment of his own volition and on his own terms. Mr. Tessier was initiating contact and could not plausibly claim to feel detained when he returned to the RCMP detachment and accompanied officers to his house.

[111] Given that Mr. Tessier was not psychologically detained, his Charter rights were not triggered. There was no breach of his right to counsel. I would confirm the trial judge’s conclusion on this issue.

[112] For the foregoing reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the conviction ordered at trial.

The following are the reasons delivered by

BROWN AND MARTIN JJ. —

I. Overview

[116] ...As a result, the majority introduces a salutary change to the law: the absence of a warning in this circumstance is “prima facie evidence that [suspects] were unfairly denied their choice to speak to the police” (para. 9; see also paras. 83 and 89). We therefore understand the majority to adopt a presumption of inadmissibility when statements are elicited from suspects without a warning. The rationale underlying the majority’s presumption is that the absence of a caution may unfairly deprive individuals of making a “free and meaningful choice to speak to police” when they are at “risk of legal jeopardy” (para. 71).

R v Nahanee, 2022 SCC 37

[October 27, 2022] Sentencing: Notice Required when Judge Considers Going Above Crown Position [Majority Reasons by Moldaver J. with Wagner C.J., Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring]

AUTHOR’S NOTE: Following on Anthony-Cook, this case defines the parameters of circumscribed power by sentencing judges.  The case establishes that there is only a joint position (per Anthony-Cook) where there is a complete agreement between the parties on all aspects of the sentence and ancillary orders. However, where the Crown sets an upper end of a range or asks for a particular sentence, a sentencing judge is obligated to give notice prior to going above that position. While they are not bound in these circumstances, the extra procedural step allows Crown and defence counsel the opportunity to bring to the court's attention other circumstances that have led to the compromise position or to better substantiate the sentence sought. Where the judge does not give this opportunity, the Court of Appeal will admit such evidence. 

Overview

[1] Where the Crown and the defence propose a specific agreed-upon sentence to a judge in exchange for an accused’s guilty plea, a stringent test, known as the “public interest” test, exists to protect that submission. The test, adopted by this Court in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, instructs judges not to depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise contrary to the public interest. Sentencing judges must not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.

[4] In my opinion, the public interest test adopted by this Court in Anthony- Cook does not, and should not, apply to contested sentencing hearings following a guilty plea, regardless of the amount of prior negotiation between the parties culminating in the plea. In such cases, however, if the sentencing judge is of a mind to impose a harsher sentence, in any respect, than what the Crown has proposed, they should notify the parties and give them an opportunity to make further submissions — failing which, they run the risk of having the harsher sentence overturned on appeal for any one of the following three errors in principle:

(i)  the appellant establishes that there was information they or the Crown could have provided to the sentencing judge that would have impacted the sentence;

(ii)  the sentencing judge failed to provide adequate reasons for imposing the harsher sentence, thereby foreclosing meaningful appellate review; or

2022 SCC 37 (CanLII)

(iii) the sentencing judge provided erroneous or flawed reasons for imposing the harsher sentence.

[5] In the instant case, the sentencing judge imposed a global sentence of eight years on Mr. Nahanee for repeated sexual assaults of his two teenage nieces. This sentence exceeded the upper end of the sentencing range proposed by the Crown by two years. The sentencing judge did not provide notice that she planned to exceed the upper end of the Crown range, nor did she provide an opportunity for further submissions. Nonetheless, in my view, Mr. Nahanee has not shown that there was information he could have provided that would have impacted on the sentence; nor do the reasons of the sentencing judge disclose error. I would accordingly dismiss the appeal.

(1) The Benefits of Joint Submissions Are Significantly Lessened With Contested Sentencings

[31] Contested sentencings are characterized by a lack of agreement on a specific sentence, and therefore cannot offer the same degree of certainty as joint submissions. Joint submissions, which cover off every aspect of the sentence proposed to the court, offer certainty because of agreement in the form of a quid pro quo: the accused agrees to plead guilty in exchange for the Crown agreeing to recommend a specific sentence to the court that both the Crown and the accused find acceptable (Anthony-Cook, at para. 36). Nothing remains to be litigated. By its very nature, the quid pro quo of which I speak does not exist with contested sentencings, regardless of the amount of prior negotiation between the parties culminating in the guilty plea (I.F., Attorney General of Ontario, at para. 7). The proposed sentence is neither fixed nor final. Loose ends remain to be litigated. Even in situations where the Crown and the accused may have resolution discussions prior to a contested sentencing hearing, the fact remains that the Crown is not agreeing to recommend a specific sentence to the court upon which the parties agree.

B. Sentencing Judges Are Required to Notify Parties and Provide an Opportunity for Further Submissions if They Plan to Impose a Harsher Sentence Than What the Crown Has Proposed

[43] Mr. Nahanee and the Crown agree, as do I, that sentencing judges should notify the parties and provide an opportunity for further submissions if they plan to impose a harsher sentence than what the Crown has proposed. The parties diverge on when a failure to provide notice and/or the opportunity for further submissions is an error justifying appellate intervention. Before moving to a discussion of when an error justifies appellate intervention, it might be helpful to provide some guidance on the requirements for notice and the opportunity for further submissions.

(1) Notice Requirement

[44] Sentencing judges should let the parties know as soon as possible if they are concerned that the Crown’s proposed sentence is, or may be, too lenient and they are contemplating exceeding it.

[45] Adequate notice does not require the judge to set out in detail, or with exactitude, what it is that they find troublesome with the Crown’s proposed sentence; they should, however, do so whenever possible. It is enough for a judge to advise the parties that, in their view, the sentence proposed by the Crown appears too lenient, having regard to the seriousness of the offence and/or the degree of responsibility of the accused. Providing comprehensive reasons for this concern may, and often will, prove impossible since the judge’s position at this point is unlikely to be fixed. As indicated, the purpose is simply to put the parties on notice that the judge is considering exceeding the Crown’s proposed sentence. Notifying the parties can be as simple as saying: I am considering imposing a higher sentence than the Crown is seeking due to the seriousness of this offence (see, e.g., R. v. Scott, 2016 NLCA 16, 376 Nfld. & P.E.I.R. 167, at para. 37). While notice need not take a particular form, it must be more than simply asking questions or expressing vague concerns about the parties’ sentencing proposals.

[46] There may be cases where the judge has no thought of imposing a harsher sentence than the Crown has proposed until the sentencing hearing is over and the judge has reserved their decision. When that occurs, the judge should notify the parties as soon as possible and invite further submissions, either orally or in writing. At this juncture, the judge may be able to provide greater detail as to the reasons for their concern.

[49] In appropriate cases, where facets of the plea negotiation are highly relevant to support the reasonableness of the Crown’s proposed sentence — which may at first blush seem very low — the parties are well-advised to reveal the pertinent information in their initial submissions. Although documents and discussions arising out of plea negotiations are subject to settlement privilege (R. v. Shyback, 2018 ABCA 331, 366 C.C.C. (3d) 197, at para. 28), the parties can agree to waive this privilege where it would assist the judge in determining a fit sentence....

...Another way may be for the parties to alert the judge as to the negotiation considerations without getting into details. For example, the Crown can be expected to alert the judge in its submissions that it has considered the strength of its case in proposing its sentencing range, particularly where the range would appear to be too lenient. This is commonly done without the Crown going into detail about the deficiencies of its case. In sum, revealing facets of the plea negotiation will sometimes play an important role in enabling the judge to properly assess the fitness of the competing proposed sentences.

(3) Errors Justifying Appellate Intervention

[59] In my view, where the sentencing judge fails to provide notice and/or an opportunity for further submissions, there are three types of errors in principle that would warrant intervention by the appellate court:

i. If the failure to provide notice and/or further submissions impacts the sentence. The appellant must demonstrate that there was information that they could have provided, if given the opportunity to do so, and it appears to the appellate court that this information would have impacted the sentence. If the appellate court is of the view that there is missing information that would realistically have impacted the sentence, the court can consider the sentence afresh. In assessing impact, the focus should be on whether the missing information is material to the sentence at issue. For example, where both parties propose non-custodial sentences and the judge imposes a period of incarceration without notice, the appellant can establish impact by pointing to something material that they would have presented had they been given notice and the opportunity for further submissions, such as a pertinent authority or important mitigating fact. The Crown should assist the appellate court wherever possible by providing or confirming the information that the sentencing judge did not have.

ii. If the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing the harsher sentence.

iii. If the sentencing judge provided erroneous reasons for imposing the harsher sentence.

[60] An appellant may argue one or more of these three grounds of appeal. In cases where it may be difficult for the appellant to demonstrate impact based on the content of the sentencing judge’s reasons, the latter two grounds of appeal — in addition to the Crown’s obligation to assist the appellate court with respect to information not in front of the sentencing judge — act as safeguards to ensure that the appellant can obtain a remedy where appropriate.

C. Mr. Nahanee’s Sentence Does Not Warrant Intervention

[62] Mr. Nahanee asks this Court for a fresh sentencing hearing on the basis that he was denied procedural fairness at the sentencing hearing. I decline to do so, for reasons I have already explained. Rather, I consider the three possible errors, namely: (1) failure to provide notice and an opportunity for further submissions; (2) failure to provide sufficient reasons for imposing the harsher sentence; and (3) erroneous reasons were provided for imposing the harsher sentence. In addition, while not formally advanced as a ground of appeal before this Court, for the sake of completeness I consider whether Mr. Nahanee’s sentence was demonstrably unfit. I find that none of these alleged errors warrant intervention in this case.

VI. Disposition

[70] I would dismiss Mr. Nahanee’s appeal.

R v Royal, 2022 ABCA 330

[October 11, 2022] Contempt Orders and Provincial Court Jurisdiction [Majority Reasons of Frans Slatter and Thomas W. Wakening JJ.A., Jack Watson J.A. with separate concurring reasons]

AUTHOR’S NOTE: While being held in contempt of court is no one's cup of tea, this case updates some principles and provides a refresher on this area of law. A provincial court judge cannot preside over another judge's contempt accusation. The answer may be having a superior court judge preside over the contempt hearing, but this option is not available in the provincial court. 

[1] The appellant, a practicing barrister, had an exchange with a Provincial Court Judge over the wearing of masks in court during the Covid pandemic. The Provincial Court Judge directed that the appellant show cause why he should not be found in contempt.

[2] The contempt hearing was held by another Provincial Court Judge who found that the appellant had been in contempt: Contempt Citation Re: Peter Royal, 2021 ABPC 302, 34 Alta LR (7th) 310. The appellant has appealed.

[3] A similar situation arose in R. v Doz, [1987] 2 SCR 463, reversing (1985), 37 Alta LR (2nd) 253, 59 AR 185, where the Supreme Court ruled:

BEETZ J. (orally)

1 We are all of the view that the Provincial Court Judge had no jurisdiction to entertain a proceeding for contempt before another judge.

2 The appeal is allowed, the judgment of the Alberta Court of Appeal is set aside and the conviction entered by the trial judge is quashed.

This binding authority, which was not brought to the attention of the Provincial Court Judges, confirms that the second Provincial Court Judge proceeded without jurisdiction.

[4] The dissenting judge of the Court of Appeal in Doz, whose conclusion was upheld, stated:

91 The power and jurisdiction of a judge of the Provincial Court in contempt derives from s. 440 [now s. 484] of the Criminal Code:

440. Every judge or magistrate has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof.

92 Thus it is clear that the power of the Provincial Court judge is restricted to that which is necessary to preserve order in the court “over which he presides”. To interpret this as conferring to a provincial court judge the power to convict on the motion of the Attorney General for contempt in a court over which he is not presiding does violence to the clear words of the section.

[6] ...In some instances the requirements of a fair hearing may compel that outcome. That, however, does not mean that the second judge has to be another provincial court judge; where appropriate the matter can be taken before a superior court judge: Jackson at paras. 50-51.

[9] The respondent has not established any basis to distinguish the ruling in Doz that the second provincial court judge had “no jurisdiction”. The appeal is accordingly allowed, and the citation in contempt is quashed.

MODERN CRIMINAL EVIDENCE

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