Speak to a criminal lawyer before you speak with the police

Trial,Civil liberties
Justis Danto-Clancy | 24 October 2022

Right now, somebody is making statements to police. It happens every day in Ottawa. Some of these people are witnesses, some are persons of interest, and some are suspects. As criminal lawyers we see it all the time, there is a reason the police want to obtain statements from suspects, it makes a conviction more likely.

And now, the Supreme Court of Canada said these statements can be used at trial, even though they’re made without a police caution to the speaker or notification of the right to silence.

Everybody knows the right to silence spiel, delivered millions of times on TV and in movies: “anything you say can be used against you in court.” Canadian police may use slightly different words, but they have the same meaning. This is a police “caution”. Before eliciting a statement, to ensure that the statement is judged to be ‘voluntary’ many months later at trial, police are generally supposed to caution the person they’re speaking to – but not always.

Criminal investigations and trials are designed to seek the truth. Voluntary statements to police are helpful in getting closer to the truth. But in order to be truly voluntary, the speaker needs to understand that they don’t have to speak to police. That’s why the police caution is so important.

Involuntary statements, obtained through threats, inducements, oppressive treatment, the lack of an operating mind, or police trickery, are generally less reliable and less fair to the accused. They are less likely to get judges and juries closer to the truth.

The Supreme Court, this month, decided that even when police are interviewing a suspect, there is no “rule that a caution is required and that its absence renders a statement involuntary”. Instead, the lack of a police caution is just one of several factors that courts can consider when determining whether a statement was made voluntarily.

The Supreme Court held that being cautioned by police before speaking to them only affects whether obtaining the statements was fair to the accused. It doesn’t affect the reliability of the statement. Because voluntariness is based on the principles of reliability and fairness, the lack of a caution does not preclude a statement from being voluntary.

The facts of the case illustrate how dangerous this precedent is. After a man was found dead in a ditch in a rural part of Alberta, police called Mr. Tessier, the deceased’s friend, and the person they thought was last to see the deceased alive.

Police asked Mr. Tessier to come to a nearby police station to provide them with some biographical information about the deceased. He got a ride with a friend to the station, where he was shown into an interview room.

Mr. Tessier was not told that he had the right to remain silent, was not given the opportunity to contact a lawyer, and was not made aware of the evidence that had linked him and his truck to the scene of the crime. He proceeded to speak with the officer for an hour and 45 minutes in a recorded interview. He came in a free man and he ended up eventually being charged with murder.

This interview was later used evidence at his trial — where he was convicted of first-degree murder.

In circumstances such as Mr. Tessier’s, it may feel natural to assist police with their investigation by making statements. It might even feel like police are trying to help you. But remember that police are not required to caution suspects before questioning them.

If the police ask you to come speak with them, or if you’ve been charged with a criminal offence and the right to counsel arises, the stakes can get very high, very quickly. Make sure you give us a call to get some advice.