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The Supreme Court of Canada has ruled that police should warn suspects of their right to silence but it isn’t strictly necessary and only applies if the suspect is detained.Spencer Colby/The Globe and Mail

Police should warn suspects of their right to silence but it is not strictly necessary, if a suspect understands their choices and speaks voluntarily, the Supreme Court has ruled.

The 7-2 majority decision on Friday restored the first-degree murder conviction of an Alberta man who was not told of his rights during a 105-minute voluntary interview in which police asked him to prove he did not commit the murder. The ruling does not apply when a suspect is detained; that person has a constitutional right to a police explanation of their right to silence and counsel.

The dissenters – Justice Russell Brown and Justice Sheilah Martin, both of Alberta – would have gone much further. They would have told police they should give a rights caution to everyone they interview in an investigation, not just suspects. And they would have excluded everything the Alberta man, Russell Steven Tessier, said before he was cautioned at a later date, thus requiring a new trial.

“A warning – one simple sentence – by the authorities at the outset of an interview – that the person is not obliged to say anything, but that anything said can be used in evidence, sets the necessary foundation for voluntariness and enhances the fairness of the process,” Justice Brown and Justice Martin wrote.

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But the majority ruling, authored by Justice Nicholas Kasirer, said that approach would “unnecessarily inhibit police work.”

A jury convicted Mr. Tessier in 2018 of shooting his friend and business associate, Allan Berdahl, to death near Carstairs in 2007. The Alberta Court of Appeal threw out the conviction in 2020 and ordered a new trial. It said the trial judge who allowed the incriminating statements to be used as evidence did not consider whether Mr. Tessier made a meaningful choice to speak to police.

Mr. Tessier had come voluntarily to a police station to be interviewed. A senior RCMP homicide investigator testified he was not a suspect at the time, even though they already had information that he was the last person seen with Mr. Berdahl, and knew his tires matched tracks at the scene where the body was discovered.

The interview turned adversarial, and police asked if he would give a DNA sample, and if he would allow police to photograph the soles of his boots. (The majority said there were objective signs that he was a suspect, but that the RCMP officer confronted Mr. Tessier openly, and did not trick him.)

Mr. Tessier was not charged until 2015, but his statements proved important in the circumstantial case against him.

The case provides fresh guidance on the “modern confessions rule,” stemming from the 18th-century notion that self-incriminating statements to police must be freely made.

For the first time, the majority in the Tessier ruling established a presumption that cautions are to be given to suspects in investigations, if incriminating statements are to be admissible in court. If no caution is given, prosecutors must show beyond a reasonable doubt that a suspect understood they had a right not to talk to police, the majority said.

Pawel Milczarek, a lawyer for Mr. Tessier, said the court sent a mixed message to police.

“On the one hand it reinforces the importance of police cautions.” On the other hand, “an accused person has to prove that police deliberately set out to withhold a police caution even though they really thought a person was a suspect.” The balance risks “questioning amounting to interrogation … without [the interviewed person] knowing their rights,” he said.

The majority drew heavily on a 1949 case called Boudreau that balanced the need to ensure confessions are made voluntarily, while allowing police the latitude to do effective investigations.

“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,” Justice Nicholas Kasirer wrote.

In dissent, Justice Brown and Justice Martin said Canadians’ values have changed since 1949.

“After all, Mr. Boudreau was hanged,” they wrote. (Canada’s last hanging was in 1962.)

They said Mr. Tessier did not speak to police voluntarily, with an awareness of what was at stake.

Samara Secter, a lawyer representing the Canadian Civil Liberties Association, which was an intervenor in the case, said the entire court agreed that the police should use cautions to make sure their investigations are fair. But the majority, unlike the dissenters, “misses the point that there is an imbalance of power whenever the police interact with all people – not just suspects.”