His Majesty The King Appellant v. Russell Steven Tessier, 2022 SCC 35

SUPREME COURT OF CANADA Citation: R. v. Tessier, 2022 SCC 35 Appeal Heard: December 6, 2021 Judgment Rendered: October 14, 2022 Docket: 39350 Between: His Majesty The King Appellant and Russell Steven Tessier Respondent - and - Attorney General of Ontario, Attorney General of New Brunswick and Canadian Civil Liberties Association Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 112) Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe and Jamal JJ. concurring) Joint Dissenting Reasons : (paras. 113 to 214 ) Brown and Martin JJ. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

His Majesty The King Appellant v. Russell Steven Tessier Respondent and Attorney General of Ontario, Attorney General of New Brunswick and Canadian Civil Liberties Association Interveners Indexed as: R. v. Tessier 2022 SCC 35 File No.: 39350. 2021: December 6; 2022: October 14.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal of alberta Criminal law — Evidence — Admissibility — Confessions rule — Voluntariness — Caution — Police not cautioning individual during interviews in connection with murder investigation about right to remain silent and consequences of speaking to authorities — Individual later charged with first degree murder and seeking exclusion of statements made to police as involuntary — Trial judge admitting statements as voluntary despite lack of caution — Whether absence of caution during police questioning of individual affected voluntariness of statements under confessions rule — Whether statements admissible at trial.

Constitutional law — Charter of Rights — Detention — Right to counsel — Police questioning individual at police station in connection with murder investigation — Police not informing individual of right to obtain and instruct counsel without delay — Individual claiming psychological detention and seeking exclusion of statements at first degree murder trial as having been obtained in violation of right to counsel — Whether individual was psychologically detained such that statements should be excluded at trial — Canadian Charter of Rights and Freedoms, s. 10(b) .

When the victim was found dead in a ditch by a rural road, the police immediately sought out several individuals connected to him for interviews, including his friend, the accused, who agreed to come to the station. The police did not caution the accused that he had the right to remain silent or that his statements could be used in evidence, nor was he informed of the right to retain and instruct counsel under s. 10(

b) of the Charter . Over the course of the interview, the accused provided details about the victim, his relationship to him, and his own movements in the days leading up to the death. During a second interview later that same day, the accused revealed having recently retrieved a firearm from a shooting range. The accused asked the police to come to his apartment to confirm that the firearm was still in his bedroom closet, but the police found that it was not and the accused was read his rights and cautioned. He was eventually charged with first degree murder.

While he did not confess, his answers to police questions included comments that the Crown sought to introduce at trial to show that he committed the crime. A pre-trial voir dire was held to determine whether the accused’s statements were voluntary and thus admissible under the common law confessions rule, and whether the police had breached his Charter rights to silence and to counsel such that the evidence should be excluded. The trial judge found that the accused was not a suspect when he was interviewed by the police, and that his statements were made voluntarily.

Moreover, his Charter rights were not engaged as he was not psychologically detained by the police. He accordingly held that the statements were admissible at trial. The Court of Appeal observed that the trial judge made legal errors with respect to the confessions rule. It found that the trial judge did not address whether the accused made a meaningful choice to speak to the police as a condition of voluntariness, and therefore ordered a new trial. It did not resolve the psychological detention issue. Held (Brown and Martin JJ. dissenting): The appeal should be allowed and the conviction restored.

Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Kasirer and Jamal JJ. : Despite the absence of a caution, the accused’s statements to the police were voluntary under the confessions rule. The accused exercised a free or meaningful choice to speak to the police and was not unfairly denied his right to silence. Given that there was a reasonable basis to consider the accused a suspect at the time of questioning, the absence of a caution raised prima facie evidence that the accused’s statements were involuntary.

However, the Crown discharged its burden by proving 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 . Further, the accused was not psychologically detained, such that his Charter rights were not triggered. There was accordingly no breach of his right to counsel. In accordance with the modern confessions rule, a statement will not be admissible if it is made under circumstances that raise a reasonable doubt as to whether the statement was given voluntarily.

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. It involves consideration of the making of threats or promises, oppression, the operating mind doctrine, and police trickery. The operating mind consideration, for instance, requires proof that the accused was capable of making a meaningful

choice to speak to the police and that the choice was not improperly influenced by state action. The language of meaningful, free oractive choice emphasizes the overall voluntariness of the statement, rather than a minimum level of actual subjective knowledge that theaccused did not have to say anything to the police and that anything said could be taken down in evidence.

These factors are not achecklist: ultimately, a trial judge must determine, based on the whole context of the case, whether the statements made by an accusedwere reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to aperson in authority. The confessions rule strives for a balance between the rights of the accused to remain silent and against self-incriminationand the legitimate law enforcement objectives of the state relating to the investigation of crime.

These interests share a commonpreoccupation in the repute of the administration of criminal justice. Justice mandates a recognition that the rights of the accused areimportant but not without limit; it also insists that the police be given leeway in order to solve crimes but that their conduct not beunchecked. 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.

The confessions rule is animated by both reliability and fairness concerns, and it operates differently depending on context.The police caution is typically understood as speaking to fairness, as the absence of a caution may unfairly deprive someone of beingable to make a free and meaningful choice to speak to police when they are at risk of legal jeopardy. However, the caution does notresolve all of the concerns addressed by the confessions rule. The absence of a caution is an important but not a decisive factor in thevoluntariness inquiry.

A caution is designed to rectify an informational imbalance when a detained or arrested individual is in a state ofheightened vulnerability, whereas voluntariness extends to a broader complex of values animated by both reliability and fairness. Thoughfairness plays an important role in the modern rule, it cannot dominate the analysis to the exclusion of other values.

The confessions ruleis also about protecting innocent defendants from false confessions and protecting suspects from abusive police tactics, which aredistinct purposes reflected in their own ways in the threats or inducements, oppression and trickery factors. These concerns persist evenwhere a caution has been properly delivered and understood. Contextual analysis is thus required to extend adequate protections tosuspects beyond what the caution provides on its own. In deciding that the absence of a caution is an important but not a decisive factor in the voluntariness inquiry, the Court inBoudreau v.

The King, (SCC), [1949] S.C.R. 262, confirmed that the confessions rule should also remain flexible toaccount for the complex realities of police investigations.

To make the absence of a police caution determinative of voluntariness by wayof a bright-line rule would risk inhibiting legitimate investigative techniques while ignoring the other protections provided by the rule.The confessions rule accepts in its design that statements resulting from police questioning are valuable, provided they are reliable andfairly obtained; accordingly, even where a caution is not given, the circumstances may nevertheless indicate that a person has freelychosen to speak and no fairness concerns arise.

Furthermore, although a caution can contribute to ensuring that an investigation is conducted fairly, fairness considerationsare unlikely to arise in the same way where the person is not suspected of being involved in the crime under investigation. Fairnessconcerns only really manifest once an individual is targeted by the state; where a mere witness or uninvolved individual is questioned,introducing a caution requirement as a condition of voluntariness could exact a cost on the administration of justice, notwithstanding thefact that no unfairness has arisen in obtaining the statement.

To call for cautions in all circumstances would unnecessarily inhibit policework, and could even chill investigations where a person faces no apparent legal jeopardy and the intentions of police are merely togather information. Accordingly, it is preferable to allow courts to take measure of the true circumstances of the police encounterflexibly. The weight to be given to the absence of a caution falls on a spectrum. At one end, the significance attached to the failure tocaution an uninvolved individual will typically be negligible.

The relative lack of vulnerability of an uninvolved individual or witnesswho is questioned by police means that a caution is generally not necessary to show that the statements were voluntary. At the other endof the spectrum, the vulnerability and legal jeopardy faced by detainees cement the need for a police caution. Fairness commands thatthey know of their right to counsel and, by extension, of their right to remain silent so that they can make an informed choice whether toparticipate in the investigation. The weight attached to the absence of a caution in these circumstances will be at the highest end.

Inbetween these two extremes, where police interview a suspect who is not detained and do not provide a caution, the lack of caution is notfatal but is an important factor in determining voluntariness. The heightened jeopardy and consequential vulnerability faced by a suspect thus warrants special consideration in theanalysis to ensure adequate and principled protections under the confessions rule. When an accused brings a voluntariness claim withrespect to police questioning that did not include a caution, the first step is to determine whether or not the accused was a suspect.

Thetest is whether there were objectively discernable facts known to the interviewing officer at the time of the interview which would lead areasonably competent investigator to conclude that the interviewee was implicated in the criminal offence being investigated. If theaccused was a suspect, the absence of a caution is prima facie evidence of an unfair denial of choice but not dispositive of the matter. Itis credible evidence of a lack of voluntariness that must be addressed by the court directly. Depending on the circumstances, the denial ofchoice may be relevant to the voluntariness analysis.

However, the absence of a caution is not conclusive and the Crown may stilldischarge its burden if the totality of the circumstances allow. The Crown need not prove that the accused subjectively understood theright to silence and the consequences of speaking, but where it can, this will generally prove to be persuasive evidence of voluntariness. Ifthe circumstances indicate that there was an informational deficit exploited by police, this will weigh heavily towards a finding ofinvoluntariness.

But if the Crown can prove that the suspect maintained their ability to exercise a free choice because there were no signsof threats or inducements, oppression, lack of an operating mind or police trickery, that will be sufficient to discharge the Crown’sburden that the statement was voluntary and remove the stain brought by the failure to give a caution. This framework does not displacethe ultimate burden on the Crown to prove voluntariness beyond a reasonable doubt. Rather, it emphasizes the legal significance of theabsence of a caution as a potential sign of involuntariness where a person is a suspect.

In the instant case, the trial judge’s statements of the law relating to confessions did not reflect legal errors that warrantedappellate intervention. A finding of voluntariness calls for deference unless it can be shown that it represents a palpable and overridingerror. Although the trial judge committed errors in concluding that the accused was not a suspect, they were not overriding mistakes. Thetrial judge’s conclusions that the accused’s statements were voluntary and that he exercised a free choice to speak should not have been

disturbed. Furthermore, the trial judge’s conclusion that the accused was not psychologically detained should be confirmed.Psychological detention exists where an individual is legally required to comply with a direction or demand by the police, or where areasonable person in that individual’s position would feel so obligated and would conclude that he or she was not free to go.

Threefactors are to be considered and balanced: first, the circumstances giving rise to the encounter as they would reasonably be perceived bythe individual; second, the nature of the police conduct; and third, the particular characteristics or circumstances of the individual whererelevant. In the instant case, the factors weigh against finding that the accused was detained. Per Brown and Martin JJ. (dissenting): The appeal should be dismissed and the Court of Appeal’s order of a new trialconfirmed. The statements made by the accused during the two police interviews should have been excluded at trial.

The majority introduces a salutary change to the law by stating that the absence of a warning to suspects speaking to policeis prima facie evidence that they were unfairly denied their choice to speak to the police. The majority can be understood as adopting apresumption of inadmissibility when statements are elicited from suspects without a warning. The rationale underlying the majority’spresumption is that the absence of a caution may unfairly deprive individuals of making a free and meaningful choice to speak to policewhen they are at risk of legal jeopardy.

There is agreement with this rationale, but the majority falls short by failing to carry it to itslogical conclusion: that is, in order to ensure that individuals are making a free and meaningful choice to speak to police, police shouldprovide a warning at the outset of all interviews — and not just interviews of suspects. Such a rule follows from the Court’s jurisprudence, which has progressed beyond a negative inquiry into policeinducements, trickery, and oppression. Since at least the Court’s decision in R. v. Hebert, (SCC), [1990] 2 S.C.R. 151,confirmed more recently in R. v.

Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, it has been clear that voluntariness exists only where theaccused made a meaningful choice to speak with police. This reflects the confessions rule’s concern for a person’s right to choosewhether to speak to police, a concern that underlies the privilege against self-incrimination and the right to silence. Voluntarinessrequires the court to scrutinize whether the accused was denied the right to silence under the Charter or the common law. The inquiryfocuses predominantly on the accused’s ability to make a meaningful choice whether to speak with police.

A meaningful choice is aninformed choice. The modern conception of meaningful choice goes beyond an operating mind. The operating mind doctrine doesinquire into an accused’s cognitive capacity, but an accused’s cognitive capacity to choose between alternatives is meaningless withoutinformation about those alternatives. Interviewees cannot make a meaningful choice without knowing that the choice is betweenspeaking and not speaking with police and knowing of the consequences of choosing to speak.

Voluntariness is therefore premised on the assumption that the interviewee should have actual knowledge of the legallyavailable options. It cannot merely be assumed that people interacting with the police know that they may remain silent and thatwhatever they say can be used in evidence. Accordingly, unlike what is proposed by the majority, the importance of a warning shouldnot be limited to circumstances where an accused is a suspect or detainee. A warning should be given at the outset of all interviews, andits importance increases with the objective risk of self-incrimination.

The role of a warning in the voluntariness analysis requires greater clarity, brighter lines and increased protection forindividuals. The Court’s approach to a warning, stated in Boudreau, has not been reviewed to account for later recognition by the Courtof the need for an informed choice. Furthermore, the instruction in Boudreau that a failure to warn a suspect is “a factor and, in manycases, an important one” in assessing the voluntariness of the suspect’s statement has led to little consistency in how courts approach thefailure to warn a suspect. The Court should therefore adopt a new approach to warnings.

The complex of values guiding the notions offairness and the administration of justice has evolved since Boudreau in 1949. A more stringent approach to a warning is needed in thevoluntariness analysis, one that better upholds the confession rule’s modern protections for the common law right to silence and theprinciple against self-incrimination. Since the voluntariness inquiry focuses on whether the accused made a meaningful (and therefore informed) choice to speakto police, it follows that the Crown carries a burden to prove an informed choice.

The Crown must show that police warned aninterviewee of the right to silence and the consequences of speaking where the police initiate contact with a person to secure informationabout a crime they were investigating. Absent that warning, a presumption of involuntariness arises which, if not rebutted, renders anystatement inadmissible, since police cannot assume interviewees understand their rights or their risks.

The Crown may rebut thepresumption by establishing, based on some other objective source of information, that interviewees otherwise knew they had a right toremain silent and that anything they said could be used in evidence. The presumption will be more difficult to rebut where the risk ofself-incrimination is objectively heightened whether or not the investigating officer subjectively views the individual being questioned asa witness, suspect, or detainee.

The risk is objectively heightened, for instance, when a person is invited to conduct a recorded interviewat the police station, when the police take an adversarial approach during an interview, or when there is information that, objectivelyviewed, would raise a reasonable suspicion that the individual was involved in the crime. The presumption will not arise whenever anaccused makes a statement to a person in authority, or to every interaction that an individual has with police; it arises only where policeinvestigate a crime and initiate contact with a person to secure information about the crime.

A warning — one simple sentence — by the authorities at the outset of an interview — that the person is not obliged to sayanything, but that anything said can be used in evidence, sets the necessary foundation for voluntariness and enhances the fairness of theprocess. Replacing the dubious assumption of universal knowledge with a simple and direct communication corrects any informationalasymmetry to the benefit of all concerned. First, interviewees, having been informed of their choice, understand that they may lawfullyremain silent.

Secondly, police are given a clear, bright-line rule which does not rely on a cumbersome framework directing them toconsider the perceived status of the interviewee at any particular point in time. Interviews are so dynamic and fluid that it has provenexceedingly difficult to pinpoint with any confidence when an interviewee becomes a potential suspect, a person of interest, a realsuspect, or a detainee.

Providing basic and necessary information from the outset, which is when the voluntariness requirement arises,allows authorities to proceed without fear that an interviewee’s misunderstanding about whether to speak or not will result in theircarefully conducted interviews yielding involuntary (and therefore inadmissible) statements. Finally, it follows that the Crown willbenefit from such information having been given to the accused at the outset, since it can therefore more easily establish the meaningfulchoice at the heart of the voluntariness inquiry.

This approach promotes the confessions rule’s animating concern with fairness and the administration of justice, provides astrong incentive for police to warn individuals before questioning them, and helps alleviate the informational deficit and coerciveelement inherent in police interrogations. It will not unduly interfere with police investigations. An approach that effectively invitespolice to exploit the murky lines around psychological detention and rely on individuals’ ignorance of their rights to extract statementswhere they are at risk of incriminating themselves should not be endorsed.

Applying this restated test in the instant case, the accused did not speak to police voluntarily with awareness about what wasat stake. The Court of Appeal was correct in holding that the trial judge made legal errors in assessing the voluntariness of the accused’sstatements. The police initiated contact with the accused to secure information about a homicide investigation. This alone triggered theneed for a warning. The Crown therefore had to demonstrate that the accused made an informed choice to speak to the police.

Since thepolice warned the accused only upon seeing that his firearm was missing, the accused’s prior statements were presumptivelyinadmissible. With the police’s questioning turning adversarial and the accused becoming a suspect partway through the first interview,the risk of self-incrimination was objectively heightened, making the presumption of inadmissibility more difficult to rebut. The Crownfailed to adduce clear and compelling evidence demonstrating that the accused’s statements were voluntary and thus failed to rebut thepresumption of involuntariness. Cases Cited By Kasirer J. Applied: R. v.

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Trotter, Gary T. “The Limits of Police Interrogation: The Limits of the Charter ” (2008), 40 S.C.L.R. (2d) 293 . Vauclair, Martin, et Tristan Desjardins, avec la collaboration de Pauline Lachance. Traité général de preuve et de procédure pénales 2022 , 29 e éd. Montréal: Yvon Blais, 2022. APPEAL from a judgment of the Alberta Court of Appeal (Schutz, Khullar and Antonio JJ.A.), 2020 ABCA 289 , 12 Alta. L.R. (7th) 55, 390 C.C.C. (3d) 491, 468 C.R.R. (2d) 1, [2020] 11 W.W.R. 444, [2020] A.J.

No. 826 (QL), 2020 CarswellAlta 1432 (WL), setting aside the conviction of the accused for first degree murder and ordering a new trial. Appeal allowed, Brown and Martin JJ. dissenting. Matthew W. Griener , for the appellant. Pawel J. Milczarek and Kelsey Sitar , for the respondent. Frank Au and James V. Palangio , for the intervener the Attorney General of Ontario. Patrick McGuinty , for the intervener the Attorney General of New Brunswick. Samara Secter , for the intervener the Canadian Civil Liberties Association.

The judgment of Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Kasirer and Jamal JJ. was delivered by Kasirer J. — 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. [ 2 ] The statements were admitted after a voir dire at trial. Mr. Tessier was later convicted of first degree murder. The Court of Appeal decided that the trial judge committed legal errors when considering whether the statements had been made voluntarily,

in particular by misapprehending the fairness rationale of the confessions rule, the operating mind doctrine associated with voluntarinessand the proper test for determining whether Mr. Tessier was a suspect at the time. The conviction was set aside and a new trial ordered. [3] The principal issue raised on appeal to the Court is whether the Crown met its heavy burden to show, beyond areasonable doubt, that Mr. Tessier’s statements were voluntary pursuant to the common law confessions rule.

The Court of Appeal saidthe trial judge failed to address the key question in this case: whether, in the absence of a caution, Mr. Tessier had been denied ameaningful choice to speak to the police “knowing that he was not required to answer police questions, or that anything he did say wouldbe taken down and could be used in evidence” (2020 ABCA 289, 12 Alta. L.R. (7th) 55, at para. 54 (emphasis in original)).

The appealbears upon two related doctrinal questions under the confessions rule: first, the requirements of the operating mind doctrine and, second,the impact of the absence of a caution on voluntariness prior to detention or arrest. [4] It has often been said that the proper application of the confessions rule aspires to strike the right balance betweenthe individual and societal interests at play in police questioning: on the one hand, protecting the accused from improper interrogation bythe police and, on the other, providing the authorities with the latitude they need to ask difficult questions to investigate and solve crime(R. v.

Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 33). Understanding the impact of the absence of a caution on voluntariness in thepre-detention phase, and in particular on the fairness considerations that underlie the confessions rule, is integral to that balance. [5] In R. v. Singh, 2007 SCC 48 [2007] 3 S.C.R. 405, Charron J. provided helpful guidance for persons in authorityundertaking criminal investigations: “Even if the suspect has not formally been arrested and is not obviously under detention, policeofficers are well advised to give the police caution . . .” (para. 33).

One understands Charron J.’s sensible intuition. While a propercaution will not guarantee that statements given thereafter are voluntary, it stands to reason that proving the accused made a free choiceto speak to the authorities will be easier for the Crown if a caution is given. Because a suspect is more vulnerable to making involuntarystatements than a mere witness or a person not involved in the crime, the presence or absence of a police caution is an “important” factorin answering the question of voluntariness upon which the admissibility of statements will turn (Boudreau v.

The King, (SCC), [1949] S.C.R. 262, at p. 267). [6] What happens when the police question a suspect without providing the caution recommended in Singh?Mr.

Tessier argues here that the trial judge should have recognized that he was subject to a degree of control by the authorities thatmandated a caution to guard against an unfair denial of his free and meaningful choice to speak to the police. [7] Charron J. was careful to say only that the police are “well advised” or should provide suspects with a caution; herremark was not in the order of a bright-line mandatory rule which, one infers, she sensed would upset the balance struck by theconfessions rule. The failure to provide a caution is not in itself fatal to admissibility (see M. Vauclair and T.

Desjardins, in collaborationwith P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022), at No. 38.28).

But that this Court took the stepto recommend a caution for suspects in Singh is an indication at common law that this lack of a caution is not without consequence onthe type of proof required of the Crown to establish the voluntariness of the statements given. [8] As part of its persuasive burden to prove voluntariness beyond a reasonable doubt at trial, the Crown must, in myview, show that the absence of a caution did not undermine the suspect’s free choice to speak to the police as part of the contextualexamination of voluntariness.

It is an important factor that must be addressed by the Crown by pointing in particular to circumstancesthat prove beyond a reasonable doubt that the suspect possessed an operating mind and voluntariness was not otherwise impugned.Generally, the operating mind doctrine requires the Crown to show that the accused possessed the limited cognitive ability to understandwhat they were saying and to comprehend that the statement might be used as evidence in criminal proceedings (R. v. Whittle, (SCC), [1994] 2 S.C.R. 914, at p. 939).

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’sability to understand that what they were saying could be used in evidence, that they were not subject to police trickery and that therewere 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 choiceto speak to the police (see S.

N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence inCanada (6th ed. 2022), at ¶8.119). In circumstances in which the accused has raised credible evidence that their status at the time ofquestioning was that of a suspect, the presence or absence of a caution takes on meaningful significance. Where the accused further putsthe lack of a caution and their increased legal jeopardy into evidence — by cross-examining Crown witnesses or otherwise — they havemet their evidentiary burden that raises the issue as to whether their statements were freely given.

It then falls to the Crown to dischargeits persuasive burden by proving either that the accused was not in legal jeopardy, in that they were a mere witness and not a suspect, orthat the absence of a caution was without consequence and that the statements were, beyond a reasonable doubt and in view of thecontext as a whole, voluntary.

This would give substance to the recommendation formulated by Charron J. in Singh for trial judgesseeking to weigh the importance of a lack of caution. [10] Beyond merely showing that the person questioned had an operating mind, there may also be circumstances in whichthe 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 thepolice to manipulate the individual into thinking that they are a mere witness and not a suspect so that, in making a statement, theirjeopardy is not at risk.

Where the failure to caution a suspect amounts to trickery, the effect of the police conduct may have an impact onvoluntariness 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 itseffect 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 noimpact on voluntariness, the prima facie evidence of involuntariness raised by the absence of a caution will lead to a conclusion ofinadmissibility.

The absence of a caution weighs heavily because, where unaddressed, it represents prima facie evidence that the suspecthas 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 thelegal significance of the absence of a caution as a potential sign of involuntariness where a person is a suspect.

[ 12 ] But to be clear: insisting on a caution in all circumstances where a suspect is questioned by police, or requiring that the Crown prove what amounts to a waiver of that caution, are not conditions of voluntariness. In my respectful view, the Court of Appeal mistakenly imposed this high standard based on proof of actual, subjective knowledge. 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 ] For the reasons that follow, I propose to restore Mr. Tessier’s conviction for first degree murder rendered by the jury. 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. II. Background [ 14 ] Allan Berdahl was found dead in a ditch by a rural road close to Carstairs, Alberta, on March 16, 2007. The police immediately sought out several individuals connected to the deceased for interviews, including Mr. Berdahl’s friend, Mr. Tessier. On the morning of March 17, 2007, Mr.

Tessier received several phone calls from the police seeking to arrange an interview at the RCMP detachment at Didsbury, near Carstairs. Mr. Tessier, who was staying with friends in Didsbury, agreed to come to the station. He had a friend drive him there and wait for him outside. [ 15 ] Sgt. Alexander “Sandy” White first met Mr. Tessier at the detachment counter at 12:55 p.m. and escorted him to a room with a closed, unlocked door for the interview. Sgt. White was an experienced homicide officer. He was dressed in plainclothes and unarmed. Mr. Tessier was not searched. Sgt. White did not caution Mr.

Tessier that he had the right to remain silent or that his statements could be used in evidence. Nor did he speak of the right to retain and instruct counsel under s. 10(

b) of the Canadian Charter of Rights and Freedoms . Mr. Tessier was told and he understood that the interview was being audio and video recorded. [ 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. Notably, Mr. Berdahl was found with severe head trauma. Tire tracks, blood spatter, footprints and two cigarette butts had been found nearby. He knew what kind of truck Mr. Tessier drove. 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. [ 18 ] Over the course of the first interview, Mr. Tessier provided information about Mr. Berdahl, his relationship to him, and Mr. Tessier’s movements in the days leading up to the death. Mr. Tessier volunteered that Mr. Berdahl’s ex-girlfriend “hate[d]” the victim (A.R., vol. IV, at p. 102). He said that Mr. Berdahl was a drug user, that he owed “a lot of people” money and was involved in illegal activities (p. 103). Mr. Tessier had been with Mr. Berdahl until the evening of March 15, he said, at which time they parted ways as Mr.

Berdahl was leaving for Winnipeg. Sgt. White challenged Mr. Tessier, noting he appeared “mixed up” and “bothered” and should “[t]ell the truth” (p. 117). He asked if there was any reason why Mr. Tessier’s DNA would be on the side of the road south of Didsbury. Mr. Tessier answered no. He told Sgt. White the make and model of his car, as well as the brand of cigarettes he smoked, noting that he and Mr. Berdahl often exchanged cigarettes. On more than one occasion, Mr. Tessier asked what happened to Mr. Berdahl. At one point Sgt. White said “I’m only here looking for the truth and that’s – that’s my job. . . .

And you hold the truth as far as I’m concerned, Steve” (p. 127). Mr. Tessier answered that he did not know. [ 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. Providing the DNA sample was voluntary, noted Sgt. White. He then asked Mr. Tessier if he thought the murder was planned and what happened in between Mr. Berdahl being at the house and turning up dead on the side of the road, to which Mr.

Tessier said, “I’m scared to answer questions, I don’t know what to do” (p. 126). 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. [ 20 ] Sgt. White then accompanied Mr. Tessier outside and, soon after, the interview concluded with Mr. Tessier inviting police to his home in Calgary to inspect and collect some of Mr. Berdahl’s possessions, as he had been staying with Mr. Tessier recently. Mr. Tessier then asked if he was free to go.

Even though his friend was present with a car, Mr. Tessier asked Sgt. White to drive him back to his truck. Following the interview, a briefing was held at the detachment and a police surveillance team was put in place to observe Mr. Tessier. [ 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. Sgt. White and another officer followed Mr. Tessier to his apartment. Once

there, Mr. Tessier showed officers the gun case, but there was no gun inside of it. Mr. Tessier asked Sgt. White if he should call a lawyer, to which Sgt. White responded that they were there “to investigate Al’s death” (A.R., vol. II, at pp. 129-30). Sgt. White then read Mr. Tessier his rights and cautioned him. [ 22 ] Mr. Tessier was charged with first degree murder in 2015 when his DNA was matched to a cigarette butt found near the scene. III. Proceedings Below A.

Voir Dire Ruling, 2018 ABQB 387 (Yamauchi J.) [ 23 ] A pre-trial voir dire was held to determine whether the Crown had met its burden to show that Mr. Tessier’s statements were voluntary and thus admissible under the common law confessions rule. The trial judge also considered Mr.

Tessier’s argument as to whether the police had breached his Charter right to silence and right to counsel and that, as a result, the evidence should be excluded under s. 24(2) . [ 24 ] In respect of the confessions rule, the trial judge concluded that the statements had been made voluntarily. [ 25 ] He wrote that the policy rationale for the right to silence and the confessions rule “is to prevent the state from receiving false confessions” (para. 16, reproduced in A.R., vol. I, at p. 16).

The evaluation of voluntariness is contextual and a court must consider all the relevant factors relating to how the state authorities obtained the statement, including the existence of threats, promises, or inducements; oppressive conditions; the lack of an operating mind; and police trickery (para. 18, citing Oickle , at paras. 47-71). [ 26 ] Based on a review of the relevant evidence, including the recordings of the interviews, the trial judge observed there were no threats, promises or inducements by the police and that no inadmissible or non-existent evidence was used when speaking to Mr.

Tessier (paras. 36-37). [ 27 ] The trial judge considered whether Mr. Tessier lacked an operating mind during the interviews. Pointing to Whittle , he wrote that the operating mind “does not imply a higher degree of awareness than knowledge of what the accused is saying”, and that they are speaking to police officers who can use it to their detriment (para. 39, citing Whittle , at p. 936). Noting that Mr.

Tessier was neither impaired by reason of drugs or alcohol, nor suffering from a mental disability, the trial judge concluded that he had the limited degree of cognitive ability associated with an operating mind on the date of the interviews (para. 41). [ 28 ] At the time, Mr. Tessier was not a suspect, nor was he arrested or detained. Even if he were a suspect, there was no duty to provide a caution.

The failure to caution a suspect could unfairly deny the suspect the choice to speak with authorities, which is a factor courts must consider when deciding whether a suspect made a statement voluntarily (para. 45, citing R. v. Morrison , [2000] O.J. No. 5733 (QL), 2000 CarswellOnt 5811 (WL) (S.C.J.) ). Unfairness did not arise here because there was no misconduct on the part of Sgt. White. Mr. Tessier was not treated oppressively. Sgt. White allowed Mr. Tessier to leave the interview room when he requested to go outside for a cigarette. [ 29 ] The trial judge concluded the pointed questions asked by Sgt.

White were neither aggressive nor intimidating within the meaning of Oickle and that, as such, they did not mean that Mr. Tessier was a suspect. He considered Charron J.’s comments in Singh that a police caution should be given to a suspect, but noted that it was not a direction (para. 47). Based on the information he had at that point in the investigation, Sgt. White’s belief that Mr. Tessier was not culpably involved in the murder of Mr. Berdahl was objectively reasonable (para. 51). [ 30 ] The trial judge further held that Mr.

Tessier was not detained and, as a result, the rights under s. 10 of the Charter did not arise. He specifically rejected the argument that Mr. Tessier had been psychologically detained. Mr. Tessier’s presence at the detachment was a response to a police request rather than to a command (para. 66). He arrived by his own means (para. 69). Mr. Tessier had been free to go and, when he did leave, he himself chose to ride with Sgt. White to his truck (para. 71). Informing Mr. Tessier of the right to counsel at this juncture was not required (paras. 82-83). [ 31 ] Given the conclusions that Mr.

Tessier’s statements were made voluntarily and that he was not psychologically detained, the statements were admissible at trial. B. Court of Appeal of Alberta, 2020 ABCA 289 , 12 Alta. L.R. (7th) 55 (Schutz, Khullar and Antonio JJ.A.) [ 32 ] The Court of Appeal observed that the trial judge made “legal errors” with respect to the confessions rule. On that basis, the appeal was allowed.

While the trial judge’s decision that the statements were voluntary was a factual one deserving of deference on appeal, the Court of Appeal wrote that “if all of the relevant circumstances are not considered, the [c]ourt owes no deference to the trial judge’s conclusion on voluntariness” (para. 23). [ 33 ] By reason of an erroneous understanding of the modern confessions rule, the trial judge did not turn his mind to whether, in the absence of a caution as to the right to silence, Mr. Tessier understood that what he said to police could be used against him, and that he was not obliged to say anything (para. 46).

That legal error was traced to the trial judge’s failure to recognize the fairness rationale for the confessions rule and the relevance of the repute of the administration of justice. For a statement to be considered voluntary, the Crown must show the accused had a meaningful right to remain silent when questioned by police. Instead, the trial judge wrongly focussed on avoiding false confessions (at para. 47) and failed to undertake the contextual analysis of the relevant factors mandated by the jurisprudence (para. 48). [ 34 ] This was most evident in the trial judge’s treatment of the operating mind doctrine.

It was erroneous, the court said, to conclude that an operating mind requires only a limited degree of cognitive ability to understand what is being said. Whittle does not provide a full account of the factors to consider in deciding whether someone has made a meaningful choice to speak to the police (para. 51). Beyond an operating mind, voluntariness also implies “an awareness about what is at stake in speaking to persons in

authority, or declining to assist them” (para. 52, citing R. v. Worrall, [2002] O.J. No. 2711 (QL), 2002 CarswellOnt 5171 (WL) (S.C.J.),at para. 106). It was never in dispute that Mr. Tessier possessed minimal cognitive capacity. However, the trial judge did not addresswhether Mr.

Tessier “made a meaningful choice to speak to the police knowing that he was not required to answer police questions, orthat anything he did say would be taken down and could be used in evidence” (para. 54 (emphasis in original)). [35] The trial judge also erred by elevating the “suspect” rule of thumb to a legal test, in particular in respect of therelevance of the absence of a caution. Undue emphasis was placed on the fact that Sgt. White did not subjectively perceive Mr.

Tessier asa suspect, and thus was not required to provide a caution (para. 55). [36] A new trial was thus required to consider whether, in the absence of a caution, Mr. Tessier had made a meaningfulchoice to speak to the police (para. 60). [37] The court briefly discussed the psychological detention issue, but chose not to resolve it. It noted that it was notnecessarily an error to consider the factors outlined in earlier cases, provided full consideration is given to the factors in R. v.

Grant,2009 SCC 32, [2009] 2 S.C.R. 353, in answering the key question: Would the police conduct cause a reasonable person to conclude thathe or she was not free to go and had to comply with the police direction (para. 69)? IV. Issues [38] This appeal raises the following two issues: • Firstly, in the pre-detention phase of the criminal investigation, how did the absence of a caution during police questioning affectthe voluntariness of Mr. Tessier’s statements under the confessions rule?

Was he unfairly denied a meaningful choice to speak to policesuch that his statements must be considered as involuntary and thus inadmissible? • Secondly, was Mr. Tessier psychologically detained in breach of his Charter rights and, if so, what impact did that have on theadmissibility of his statements? In particular, should attendance at a police station for an officer-requested meeting be treated as adetention, absent steps taken by the police to communicate the contrary? [39] There is overlap between these matters but it is useful to address the voluntariness question first.

The confessions ruleprotects the right to silence at all times during an investigation whether or not the interviewee is in detention, whereas the residualCharter protections of the s. 7 right to silence arise only on detention (Singh, at para. 32; see also G. T. Trotter, “The Limits of PoliceInterrogation: The Limits of the Charter” (2008), 40 S.C.L.R. (2d) 293, at p. 302). I will address Mr. Tessier’s psychological detentionargument and whether he met the burden that falls to him to show a breach of the Charter.

However, in light of the Crown’s burden toshow voluntariness under the confessions rule at common law, I find it convenient first to address his voluntariness claim which arises inthe context of pre-detention investigative questioning by the police, including his argument that he was a suspect at the time. The burdenrests with the Crown to prove beyond a reasonable doubt that the pre-detention statements were voluntary. If it succeeds, there will be nobreach of his s. 7 right to silence protected by the Charter because Mr. Tessier will have exercised a free choice to speak (Singh, atpara. 25; R. v.

Hebert, (SCC), [1990] 2 S.C.R. 151, at p. 184; R. v. Timm (1998), (QC CA), 131C.C.C. (3d) 306 (Que. C.A.)). The issue as to whether Mr. Tessier was psychologically detained and, if so, whether a breach of hiss. 10(

b) Charter right to counsel warrants the exclusion of the statements from evidence at trial will be examined thereafter. V. Analysis [40] As a preliminary matter, I propose to address the Court of Appeal’s conclusion that the trial judge committedreviewable errors of law. I am of the respectful view that the Court of Appeal was mistaken to order a new trial on this basis. Clarifyingthis at the start helps bring into focus the key issues in the case: the impact of the lack of caution on the choice to speak to police in thepre-detention phase of the criminal investigation and the question of Mr.

Tessier’s psychological detention at the police station. A. Correctness of the Trial Judge’s Reasons

(1) Submissions of the Parties and Standard of Review [41] The Crown defends the trial judge’s reasons and says he made no reviewable errors in law. In its submission, theCourt of Appeal itself erred in law in its discussion of the concept of meaningful choice and, in particular, of the operating mind doctrine.The court introduced a higher standard by which the Crown must effectively provide proof of actual, subjective knowledge — proofbeyond a reasonable doubt that the accused knew they did not have to say anything to police and that anything said could be taken downand used in evidence.

By misidentifying the operating mind test set by this Court in Whittle and confirmed in Oickle, the Court of Appealwrongly applied what amounts to a waiver standard to proof of voluntariness: it inadvertently created a requirement by which police mustcaution individuals even when they are not detained or even suspected of committing an offence.

A waiver standard, under which anabsolute right to silence is assumed and all statements are excluded unless the right has been waived by the accused, was explicitlyrejected by McLachlin J. in Hebert, who said “[t]here is nothing in the rules underpinning the s. 7 right to silence or other provisions ofthe Charter that suggests that the scope of the right to silence should be extended this far” (p. 183).

It risks stifling basic anduncontroversial police practices and upsets the balance between the social interest in investigating crime and the legitimate aspects of theconfessions rule that serve to protect the accused. The trial judge, it says, applied the correct legal principles and deference should beshown to his findings of fact, absent proof of a palpable and overriding error. [42] Mr. Tessier defends the Court of Appeal’s identification of legal errors that, he says, undermined the trial judge’sconclusion on voluntariness.

The trial judge took a restrictive view of the confessions rule linked exclusively to the reliability of thestatement made. He neglected fairness considerations that require the Crown to show that persons interviewed by police should beinformed of their right to silence and provided with a free and meaningful choice to speak to police as a measure of voluntariness. Thetrial judge erred in respect of the operating mind doctrine by tying it to the requirement of limited cognitive ability.

As the Court ofAppeal observed, a meaningful choice to speak to the authorities commands not just limited cognitive ability, but also an awareness ofwhat is at stake when making a statement to a person in authority. This includes an assessment of an interviewee’s actual knowledge of

their right to silence. When an interviewee’s liberty is potentially in jeopardy, the police should provide a caution prior to questioning. Inthese circumstances, a person must have a meaningful choice to speak based on information about their corresponding legal rights.Admissibility should turn on the exercise of this meaningful choice irrespective of whether a person is a suspect, person of interest, orwitness. [43] It is noteworthy that before the Court of Appeal, Mr. Tessier argued that the trial judge erred in finding thatSgt.

White did not suspect that he was involved in the homicide and that the trial judge gave “insufficient weight” to the fact that policedid not caution him (para. 22). Even as he defends the judgment of the Court of Appeal, Mr. Tessier renews those arguments before thisCourt. These arguments allege essentially errors of fact and errors of mixed law and fact in the measure of voluntariness. A finding ofvoluntariness calls for deference unless it can be shown that it represents a palpable and overriding error (Oickle, at paras. 22 and 71; seealso Singh, at para. 51; R. v.

Ewert, (SCC), [1992] 3 S.C.R. 161, at p. 162; Ward v. The Queen, (SCC),[1979] 2 S.C.R. 30, at pp. 41-42; Mom v. R., 2018 QCCA 1381, at para. 23 ; Legault v. R., 2017 QCCA 1769, at para. 3; R. v. D.N., 2018 BCCA 18, 358 C.C.C. (3d) 471, at para. 62; R. v. Cunningham, 2017 ABCA 169, 349 C.C.C. (3d) 82, atpara. 4). An appellate court may only intervene where the error is “overriding and determinative in the assessment of the balance ofprobabilities with respect to that factual issue” (Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254, at para. 35).

Thestandard of review associated with the finding of voluntariness is tied to the idea that the analysis under the confessions rule must be acontextual one in which bright-line rules are few. Where the law is properly understood and the relevant circumstances considered, thetrial judge is best placed to measure that context and make the relevant findings.

(2) The Trial Judge Did Not Err in Law [44] The Court of Appeal identified three errors of law committed by the trial judge. First, it said he overlooked thefairness rationale for the confessions rule (see paras. 6 and 47). Second, he adopted a flawed understanding of the operating minddoctrine which he confined to whether the individual had basic cognitive capacity. The trial judge is said to have ignored whetherMr. Tessier made a meaningful choice to speak based on an awareness of what was at stake (see paras. 50-52). And third, he erred in lawwhen he decided that because Sgt.

White did not subjectively perceive Mr.

Tessier as a suspect, he was not required to give him a cautionand that, as a result, the absence of a caution did not impact on voluntariness (see para. 55). [45] While the criticism of some of the trial judge’s imprecise statements of the law relating to confessions is notunfounded, I respectfully disagree with the Court of Appeal that these reflected “legal errors” that warranted appellate intervention.Appellate courts charged with reviewing the work of trial judges should not read single sentences in isolation, however incongruous theymight seem standing alone as statements of the law.

A court of appeal must consider the law as it is presented in the whole of thejudgment under review (see, e.g., R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16). In light of the presumption that a judgeknows the law, including the settled principles of law with which they are regularly confronted, this is the right course for appellatereview for weighing supposed errors of law as well as those of fact (see R.E.M., at para. 45; R. v. Burns, (SCC), [1994]1 S.C.R. 656, at p. 664; R. v.

Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 54). [46] Read as a whole, the trial judgment here indicates plainly that the judge identified the correct legal principles and didnot commit reviewable errors of law in the manner identified in Oickle, at para. 22. I propose to turn briefly to each of the supposed legalerrors to explain why there were none. In my respectful view, the complaints that he was insufficiently attentive to fairnessconsiderations, or erred in weighing whether Mr.

Tessier had an operating mind, are determinations bearing on whether the statementsgiven were voluntary, which are questions of fact. (

a) The Fairness Error [47] While it is true that the trial judge did not mention the fairness rationale for the confessions rule at para. 16, hisincomplete statement is not a reviewable error of law when read in light of the balance of his reasons. The trial judge cited and appliedfairness principles throughout his judgment. [48] The trial judge considered Whittle at length, a case, as Sopinka J. emphasized at p. 932, that recognized the strongundercurrent of fairness to the accused in the criminal process as part of the confessions rule.

The trial judge quoted extensively fromMorrison, a case principally about fairness, including excerpts where the judge in that decision recognized that suspects have a right tochoose freely whether to speak to the authorities or remain silent (para. 43, citing Morrison, at para. 57). Most importantly, the trial judgedrew from the holding in Morrison that the failure to caution must “effectively and unfairly deny the suspect the choice” to speak andconcluded that Mr.

Tessier had not been treated unfairly in all of the circumstances (paras. 45-46, citing Morrison, at para. 57).Moreover, the trial judge asked the ultimate question posed by Charron J. at para. 53 in Singh, namely whether the accused exercisedfree will by choosing to make a statement (para. 53). He also considered police trickery at para. 21, the branch of the confessions rulegenerally associated with fairness (Oickle, at para. 69; see also L.

Dufraimont, “The Common Law Confessions Rule in the Charter Era:Current Law and Future Directions” (2008), 40 S.C.L.R. (2d) 249, at pp. 253-54). [49] Despite an incomplete statement of the confessions rule at para. 16, these aspects of the trial judge’s analysis show anadequate engagement with the legal principles that include fairness as a rationale for the confessions rule. Whether fairness was givensufficient weight is a distinct matter — a question of fact, reviewable on a different standard — from the identification of fairness as arationale of the legal test. No reviewable error was made on this point. (

b) The Operating Mind Error [50] The Court of Appeal says at para. 50 of its reasons that the trial judge failed to apply the operating mind test set forthin Whittle. It is true that, at one point in his judgment, the trial judge appears to embrace a narrow understanding of the test, pared downto the question of whether an interviewee has a “limited degree of cognitive ability to understand what he is saying” (para. 41).

But as theCourt of Appeal itself recognized, the trial judge quoted more liberally from Whittle at para. 38, including the relevant dicta that anaccused not only have the ability to understand what they are saying, but also the ability to comprehend that the statement may be usedas evidence in criminal proceedings.

[51] It appears to me that the Court of Appeal’s objection to the trial judge’s reasons in this regard is its sense that Whittle,contrary to the trial judge’s understanding of this point of law, “does not address what factors to consider in deciding whether someonemade a meaningful choice” (para. 51).

Yet as Whittle suggests at p. 932 of Sopinka J.’s reasons, the confessions rule, the right to silenceand the right to counsel are together concerned with “preserving for the suspect the right to choose” and whether “the action of policeauthorities deprive[d] the suspect of making an effective choice by reason of coercion, trickery or misinformation or the lack ofinformation”.

In Whittle, it was determined that the operating mind consideration of the voluntariness test requires proof that the accusedwas capable of making a meaningful choice to speak to the police and that the choice was not improperly influenced by state action. Thetrial judge’s determination of the law relating to the operating mind was, when the judgment is read as a whole, not mistaken in amaterial way. [52] Respectfully, the cases do not support the Court of Appeal’s wider

interpretation of the operating mind doctrine. Inthe context of a detained or arrested suspect, the cases that employ the language of “choice” use it as a shorthand for voluntariness, tospeak 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 and 939; Hebert, at p. 181; see also Oickle, at paras. 24-26; Singh, at paras. 35 and 53). Theterms variously used in these cases, including “free”, “active” and “meaningful” choice, are not predicated on any normative differenceexisting between them.

All have been invoked in the jurisprudence to convey that the choice is voluntarily exercised when it is theproduct of an operating mind, as well as the absence of other factors as the context indicates, including police tricks, that wouldotherwise impugn voluntariness. As to the operating mind cases, they merely refer to the limited cognitive ability of a person tocomprehend, in the case of Horvath v.

The Queen, (SCC), [1979] 2 S.C.R. 376, the police caution or, in the case ofWhittle, what is being said and that it may be used as evidence in criminal proceedings (Horvath, at p. 425; Whittle, at p. 939; see alsoWard; R. v. Love, 2020 ABQB 689, 21 Alta. L.R. (7th) 248, at para. 53). The default assumption in the cases is that, absent a cognitiveimpairment, an operating mind exists. But the burden always rests with the Crown to show, beyond a reasonable doubt, that the statementwas voluntary in light of the broader contextual analysis proposed in Oickle.

An operating mind is of course a necessary but notsufficient condition. [53] The statements concerning a free choice in the decided cases have been carefully tempered. Sopinka J. in Whittleexplained that an accused is not entitled to a good or wise choice (p. 939). In doing so, he “implicitly rejected” the suggestion, as authorsS. Penney, V. Rondinelli and J. Stribopoulos note, “that voluntariness might require a more thorough understanding of the consequenceof speech” (Criminal Procedure in Canada (3rd ed. 2022), at ¶4.20, citing Clarkson v. The Queen, (SCC), [1986] 1S.C.R. 383, at pp. 393-95; R. v.

MacDonald-Pelrine, 2014 NSCA 6, 339 N.S.R. (2d) 277, at para. 38; see also H. Parent, Traité de droitcriminel, t. IV, Les garanties juridiques (2nd ed. 2021), at pp. 61-62). Previously, McLachlin J. in Hebert — who, parenthetically,subscribed to the opinion of Sopinka J. in Whittle — was quick to note that proof of subjective knowledge could prove to be an“impossible task”, and therefore should not form a part of what constitutes a choice to speak or remain silent (p. 177).

In the particularcontext of a detainee tricked into confessing to an undercover police officer, she observed that a suspect’s choice is informed by the rightto counsel, a Charter right which only arises upon detention. In other words, it is the exercise of the right to counsel upon detentionwhich informs the right to choose, rather than any state of legal or other knowledge held by a person the moment they interact withpolice.

The cases seek to preserve the balance between the right to silence and the legitimate law enforcement objectives of the state,which is why the language of meaningful, free or active choice has emphasized the overall voluntariness of the statement, rather than aminimum level of subjective knowledge.

Indeed, the Court of Appeal rightly recognized that the latter approach would be “unworkable”as a general requirement for all interviews with the police (para. 39). [54] On my reading, however, the Court of Appeal introduced a level of subjective knowledge beyond what the casesrequire when it held that “an operating mind is not the only mental element required for a statement to be voluntary” and that ameaningful choice requires “knowing that [one is] not required to answer police questions, or that anything [said] would be taken downand could be used in evidence” (paras. 29 and 54).

I agree with the Crown that the standard as described by the court would effectivelyrequire proof of actual knowledge that the accused did not have to say anything to the police and that anything said could be taken downin evidence, which, as a practical matter, would oblige the Crown to prove that a police caution was given and properly understood. [55] As the foregoing cases show, it is the Charter that introduces the necessity of a police caution at the moment ofdetention.

There is good reason why the suspects in Hebert, Whittle, Oickle, and Singh were cautioned: they all were detained orarrested, such that the Charter mandated that certain information about the right to counsel, and by implication the right to silence, becommunicated to them by the police.

I would not expand the confessions rule where a person is not arrested or detained by adding aninformational component to it that is absent from the settled jurisprudence. [56] In my respectful view, proof of actual knowledge is not consonant with the law as it stands and would amount to anoverextension of the operating mind doctrine that risks upsetting the balance between the individual and societal interests upon which theconfessions rule is predicated.

As the Court of Appeal itself noted (at para. 35), para. 36 of Singh stated that the question of voluntarinessis an objective one, though the individual characteristics of the accused are relevant in applying the objective test. In essence, althoughthe court acknowledged it would be unworkable for police to caution everyone at the outset of all interactions, it effectively introducedthat standard by hinging the outcome of the voluntariness analysis on actual knowledge akin to the information contained in the policecaution (Love, at paras. 38-53).

This error is most plain in its conclusion that the trial judge had to assess whether Mr. Tessier knew thathe was not required to answer police questions (C.A. reasons, at para. 54). [57] The Court of Appeal’s reading of Worrall led it to embrace a standard that appears to me to be more demanding thanwhat Horvath and Whittle describe. The court stated that the operating mind doctrine involves an understanding that one is not obliged toanswer police questions (para. 54).

In Worrall, Watt J. wrote that the accused “was never told that he was not required to answer policequestions”, which was a problem because “[v]oluntariness implies an awareness about what is at stake in speaking to persons inauthority, or declining to assist them” (paras. 105-6 (emphasis deleted)). However, I observe that the Court of Appeal for Ontario has notfollowed Worrall to the letter, and neither have other courts of appeal across the country; Whittle has been accepted as the properstatement of the law (see, e.g., Yergeau v. R., 2021 QCCA 1827, at para. 11 ; R. v.

Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18,at para. 50; R. v. Ponace, 2019 MBCA 99, [2020] 3 W.W.R. 657, at para. 94; R. v. Lambert, 2018 NLCA 39, 363 C.C.C. (3d) 397, atparas. 8-11; R. v. Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227, at para. 94; see also Penney, Rondinelli and Stribopoulos, at ¶4.20).Instead, the Court of Appeal for Ontario has on occasion assumed, without deciding, that the suspect’s “awareness of consequences”,

where established on the facts, could dispose of the issue of voluntariness (see R. v. M. (D.), 2012 ONCA 894, 295 C.C.C. (3d) 159, atparas. 44-45; R. v. Pepping, 2016 ONCA 809, at para. 6 ). The distinction between requiring awareness of what is at stake andconsidering such an awareness where established is an important one. Where established, positive knowledge can weigh in favour ofvoluntariness without making it a requirement.

In any event, I read Watt J.’s statement as consonant with that of Beetz J. in Horvath, whosaid that “voluntariness implies an awareness of what is at stake” to refer to the importance of context to determine whether the absenceof a caution impugns voluntariness in connection with a person who was hypnotized (p. 425). [58] To conclude on this point, I see no reviewable error in the trial judge’s determination of the operating mind test.Instead, the view expressed by the Court of Appeal is that an operating mind is “not the only mental element required for a statement tobe voluntary” (para. 29), which is out of step with the law in Whittle. (

c) The Suspect Error [59] I respectfully disagree with the Court of Appeal that the trial judge erred by “elevating the ‘suspect’ rule of thumb to alegal test” (para. 56). Trial judges throughout the country consistently apply the suspect test as a useful tool to assist them in assessingthe impact of the failure to caution on the voluntariness of a statement (see Morrison, at paras. 50 and 54; R. v. Oland, 2018 NBQB 255,at paras. 43-46 ; R. v. Smyth, (Ont. S.C.J.), at pp. 34-36; R. v. Wong, 2017 ONSC 1501, at para. 64; R. v. Merritt, 2016 ONSC 7009, at para. 39 ; R. v. Higham, (Ont. S.C.J.), at paras. 5-7).

It wastherefore appropriate for the trial judge to ask whether Mr. Tessier was a suspect. I further disagree that the trial judge was only guidedby Sgt. White’s subjective perception of whether Mr. Tessier was a suspect (C.A. reasons, at para. 55). While he might well have beenplainer in his reasons, the trial judge stated the essence of the test correctly, at para. 43, when he wrote that a suspect “is a person who,through information that t

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