Exercise caution: When a statement to police becomes a confession

Can statements to law enforcement made by individuals who have not been informed of their legal rights become a voluntary confession? In R v Tessier¹,  the majority of the Supreme Court of Canada answered this question in the affirmative. 

Individuals and businesses involved in compliance investigations should take note of this important case and understand its consequences – namely, that a lack of caution does not mean the witness is not (or will be) a suspect, nor does it mean the witness’ statement cannot be used in evidence as a voluntary and admissible confession.  

Background

Mr. Tessier was a friend of the victim, who was fatally shot. He voluntarily agreed to an interview with the police, who were interviewing a number of the victim’s friends. The police did not caution Mr. Tessier that he had the right to remain silent, that his statements could be used in evidence, or that he had the right to counsel. During a second interview on the same day, Mr. Tessier revealed he had recently purchased a firearm. Mr. Tessier was later formally accused, read his rights, and cautioned at the time of his arrest.

The issue to be decided by the Supreme Court was whether the accused’s earlier statements were voluntary and therefore admissible under the common law confessions rule.

The common law confessions rule

Under the common law, a statement is inadmissible if there is reasonable doubt as to whether the statement was given voluntarily. Determining whether or not a statement is admissible is a fact-specific inquiry, involving multiple considerations, such as the making of threats or promises and police trickery.

Is a caution necessary when speaking to someone who has not been accused?

A caution is meant to rectify an informational imbalance between the accused, who is in a state of vulnerability, and law enforcement authorities. 

The majority noted that while the absence of a caution is an important factor in deciding whether or not a statement was made voluntarily, it is not decisive. This is especially true in cases where a person who is not a suspect is being questioned. The majority held that fairness considerations arise mainly once a person becomes a target of the state because imposing a caution each time a person is questioned would be burdensome on the administration of justice, if there is no unfairness. 

In contrast, the dissent disagreed that a warning should be limited only to suspects and detainees, but rather, that it should be given at the outset of all interviews. The dissent characterized a caution as “one simple sentence” that “sets the necessary foundation for voluntariness and enhances the fairness of the process.”

When does a witness become a suspect?

The majority of the Supreme Court held that a person will be considered a suspect if “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 was implicated in the criminal offence being investigated.”

The majority reasoned that if a suspect is not cautioned, this is prima facie evidence there was an unfair denial of choice. However, the Crown may still prove that the accused subjectively understood the right to silence and the consequences of speaking. 

In this case, the majority determined Mr. Tessier was a suspect at the time he was questioned. Therefore, the absence of caution raised prima facie evidence that his statement was involuntary. However, the Crown rebutted the presumption by proving that Mr. Tessier freely chose to speak to police and was not unfairly denied his right to silence. Therefore, his statement was deemed voluntary.

Key takeaways

All police interviewees should be mindful of potential self-incrimination – even if they are not a suspect at the time of the interview and even if they have not been cautioned about their right to remain silent, their right to counsel and that their statements may be used in evidence. 

This decision is especially significant to businesses involved in compliance investigations or during dawn raids, whose employees and executives would not typically be considered “suspects” using the definition above. 

Businesses may wish to consider taking additional steps to ensure their employees are aware of their legal rights during an investigation. Businesses involved in compliance investigations may wish to consider hiring independent “pool counsel” during an investigation (who is tasked with ensuring individual witnesses are properly advised of their legal rights). Failing to do so could have serious consequences not only for the company, but also for the witnesses personally.

The author wishes to thank Alexandra Toutant, articling student, for her assistance in preparing this legal update.