Are police required to inform individuals of their legal rights prior to conducting an interview in connection with a criminal investigation? The Majority of the Supreme Court of Canada recently considered this question in R v Tessier (Tessier) and ruled that police are not always required to inform individuals of their right to silence (a caution) or that statements made to the police without the warning of a right to silence may be used as incriminating evidence at trial.
This decision has far-reaching implications that stretch into the interactions that individuals or businesses may have with law enforcement in Canada during compliance investigations. The decision in Tessier implies that, in instances of criminal investigations into corporate wrongdoing, employees may not be advised of their right to silence or that their statements may later be used against them or the business. Moving forward, employers should understand that police may not caution their employees during an investigation and that a lack of caution by police is not always indicative of whether a certain employee is, or may ultimately become, a suspect in an investigation.
The facts in Tessier considered certain statements made by the accused (the Accused) to police. These statements were later admitted as evidence in Court and led to the Accused’s conviction for first-degree murder. The Accused was not under arrest when making the statements. He was not told that he had the right to remain silent, and he was not cautioned that if he did speak to the police, whatever he said could be used as evidence in Court.
The sole issue in this case centred on whether an incriminating statement was made on a voluntary or involuntary basis. Specifically, the Court was tasked with determining whether the absence of a police caution prior to the Accused’s incriminating statements meant that the statements were made on an involuntary basis.
The Majority decision: It depends – voluntariness is contextual
The Majority in Tessier determined that, in the context of the case, the lack of caution did not impact the voluntariness of the Accused’s statements, and his statements were properly admitted as evidence. In making this decision, the Majority confirmed many important aspects of an individual’s rights during police questioning. Importantly, they confirmed that an individual has the right to silence and that confessions made to police will not be admissible if the confession is made under circumstances that raise a reasonable doubt as to the voluntariness. The Majority made clear that if voluntariness is questioned at trial, the burden falls to the Crown to “prove beyond a reasonable doubt that a statement made by an accused to a person in authority was made voluntarily.”
However, the Majority declined to find that police are required to advise individuals of the right to silence before all interviews. Instead, the Majority found that, in certain situations, police are not required to inform an individual of their legal rights, and that a trier of fact should determine whether such caution was required by taking into account several contextual factors such as whether an interviewee was:
- a “suspect” that elicits a prima facie finding of involuntariness that does not extend to an interviewee who is a mere witness;
- being “treated oppressively;”
- “allowed to leave unaccompanied” or instead “voluntarily cooperated” and “disclos[ed] information selectively;”
- “subjectively aware of their right to silence;”
- “aware of the consequences of speaking;” or
- “maintained their ability to exercise a free choice.”
In general, the Majority found that the trier of fact must undertake a “contextual inquiry to determine whether an unfairness arose that vitiates voluntariness by denying the right to silence” and that “the weight given to the absence of a caution will fall on a spectrum.” In this way, the Majority left the question of voluntariness up to context rather than providing a universal guarantee to those involved in criminal investigations that they will be cautioned by law enforcement that they have the right to silence.
The Dissent decision: “One simple sentence” creates voluntariness and fairness
In contrast to the Majority’s focus on context, the Dissent held that “the right to silence is not a secret to be kept locked away in the pages of this Court’s decisions or left to the judgment calls of police officers…The purpose of the right to silence is, after all, to protect the ability of a citizen not to speak to police.”
Specifically, the Dissent found that at the outset of all interviews, police must inform interviewees that: “(1) they do not need to speak to police; and (2) if they decide to speak, their statements may be used in evidence but their silence cannot.” The Dissent held that this “one simple sentence…sets the necessary foundation for voluntariness and enhances the fairness of the process.” As such, the Dissent endorsed a presumption of inadmissibility when police conduct an investigation and “elicit a statement from a person about the crime without providing a warning [regarding the right to remain silent and the possible consequences of their statements].”
Importantly, the Dissent found that a clear requirement to provide a caution benefits both the interviewees and the police since it ensures the interviewees understand their legal rights and provides police a “clear, bright-line rule that does not rely on a cumbersome framework directing them to consider the perceived status of the interviewee at any particular point in time.”
- The Tessier decision provides significant latitude to law enforcement to conduct initial interviews into a business without informing employees and executives of their right to silence or the possible use of any statements made to police as evidence at trial.
- Employees who are interviewed with respect to their employer’s potential wrongdoing likely won’t be considered “suspects” under this decision, which means that a court may find that employees’ confessions are voluntary, despite not being cautioned of their right to silence. As such, the lack of caution should not be understood to mean that an employee or interviewee may not become a suspect later in an investigation.
If you have questions regarding applicable legal rights and obligations in a workplace compliance investigation involving law enforcement or about this insight generally, please reach out to the authors, Murray Rodych, Cate White and Gabriel Simons.
 R v Tessier, 2022 SCC 35 at paras 1-3.
 Ibid at para 2.
 Ibid at para 1.
 Under the common law confessions rule, only voluntary statements are admissible in evidence.
 Ibid at para 3.
 Ibid at para 102.
 Ibid at para 39
 Ibid at para 68.
 Ibid at para 89.
 Ibid at paras 62, 72-74, 80 and 89.
 Ibid at paras 75-76, 81 and 89.
 Ibid at para 9.
 Ibid at para 62.
 Ibid at para 88.
 Ibid at para 89.
 Ibid at paras 8-9.
 Ibid at para 78.
 Ibid at para 199.
 Ibid at para 179.
 Ibid at para 121.
 Ibid at para 176.
 Ibid at para 122.
 Ibid at para 123.