Statements Given to Police – Considerations as to Voluntariness

Oftentimes the police attempt to have accused persons incriminate themselves by giving them statements, which may be considered as confessions. The confessions rule says that people should be given a meaningful choice about whether to speak to the police or not and is concerned with the reliability of statements and trial fairness. No one is forced to give information to the police unless they are under a legal requirement or obligation to do so. With that being said, any statement given to the police or someone in authority will be inadmissible at trial unless the crown proves beyond a reasonable doubt that the statement was made voluntarily.

In R v Tessier, 2020 ABCA 289, Mr. Tessier was convicted of first-degree murder at trial. He appealed that conviction on the basis that the trial judge allowed statements he made in police interviews into evidence. The Court of Appeal examined the issue of the voluntariness of statements or confessions made and the right to remain silent found in section 7 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal ordered a new trial on the basis of errors the trial judge made in relation to the confessions rule.

In determining whether a statement is voluntary, four factors are considered; threats or promises made, oppressive practices by the police, the presence of an operating mind, and any police trickery used. Other factors may also be considered on a case-by-case basis and depending on the context/situation. Whether a statement was made voluntarily will be considered objectively but individual characteristics or features will be considered as well. Such protections are put in place to safeguard one’s right to remain silent and not incriminate oneself.

Given those requirements, police generally provide a caution that informs individuals of their right to remain silent and that if they choose to say anything, it could be used against them. However, regardless if this caution was made or not, a Court must determine if the person understood they did not have to speak and if they did, that it could be used against them.

The error made by the trial judge in this case was to use the four factors as a checklist while failing to make a determination as to whether Mr. Tessier made a meaningful choice to speak to the police, whether he understood that what he said could be used against him, and that he did not have to say anything. The trial judge did not take a contextual approach to the issue of voluntariness. The trial judge also focused on whether a caution was required or not, however, the issue was really whether his choice to speak to the police was voluntary, regardless of the presence or absence of a formal caution made by police.

The Court also reiterated that the focus in the new trial should be on whether Mr. Tessier made a meaningful choice to speak to the police, based on the context of his case/situation.

Commentary

This case strengthens and reiterates the fact that in determining whether a statement was made voluntarily, it must be a contextual analysis/consideration. It does not suffice to say that because a judge considered certain factors, the ruling on voluntariness is properly done. Instead, contextual factors must be taken into consideration that will help make a determination or appreciation for whether the person actually made a meaningful choice to speak to the police.

What this means practically, in speaking with the police, in most situations, you are not required to say anything. Should you make a statement, for it to be considered truly voluntary, the crown has to prove beyond a reasonable doubt that you understood you did not have to say anything and that you understood what you said could be used against you, regardless of whether the police gave you a caution or not, and contextual and personal factors may impact this determination.

This ruling helps to create a safeguard for those who make statements but the circumstances surrounding those statements are a little blurry as to how or why they came to make a statement. For example, as the case was here, when no caution is given and the person was not originally considered a suspect, or in situations perhaps where a caution was given, however, there was some contextual or personal factor that made it such that the person did not actually understand or was not able to make a meaningful choice. The analysis should not be so cut and dry and this decision reminds Courts of that.