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.
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
...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]
[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.
...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).
...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.
...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...
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?
[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.
...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.
...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.
...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.
...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....
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).
...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]
[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]
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]
...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....
[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]
...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.
[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.
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
(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.
(1) The Benefits of Joint Submissions Are Significantly Lessened With Contested Sentencings
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
(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.
...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
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
VI. Disposition
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.
[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.
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.