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EVIDENCE - Admissibility - Prejudicial evidence - Confessions and statements by the accused

Friday, September 18, 2020 @ 6:22 AM  

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Appeal by the accused from conviction for first degree murder. The victim’s body was found in a ditch. The appellant was charged eight years later. The trial judge admitted statements made by the appellant during two police interviews during the early stages of the investigation. The appellant argued that the statements were not voluntary, so should be excluded for breach of the common law confessions rule and a violation of his right to remain silent. He also argued that he was detained when he made the statements and that police breached his right to counsel by failing to inform him of his right to consult counsel. The trial judge also admitted a surveillance video from a convenience store showing the appellant and the victim together eight hours before the victim’s body was found. The appellant argued that the trial judge erred in admitting the surveillance video because the time/date stamp on the surveillance video footage was not adequately authenticated by the Crown. The appellant sought a new trial because the trial judge erred in law by admitting the statements and the surveillance video. 

HELD: Appeal allowed. New trial ordered. The trial judge made legal errors in the articulation and application of the law in relation to the voluntariness of the appellant’s statements to police. In determining voluntariness, the trial judge failed to address whether the appellant made a meaningful choice to speak to the police knowing that he was not required to answer police questions, or that anything he did say would be taken down and could be used in evidence. In concluding that the police approach not to provide a caution was reasonable, the trial judge accepted police evidence that the investigation was in its early stages when police interviewed the appellant, and the RCMP had not yet determined who might be persons of interest, or even suspects. The trial judge erred in finding that because the officer did not subjectively perceive the appellant as a suspect, he was not required to give a caution, and therefore the absence of the caution did not impact voluntariness. The question before the trial judge was not whether the police needed to administer a caution, but whether the appellant spoke to police voluntarily, encompassing an implied awareness about what was at stake in speaking to persons in authority, or declining to assist them. The fact that the appellant initiated contact with the police after the first interview did not answer the key question whether he understood the police could use his statements to his detriment and that he was not obliged to speak to the police. A new trial was required to consider whether, in the absence of a caution, the appellant made a meaningful choice to speak to the police. If the time stamp on the video surveillance footage needed separate authentication in this case, the trial judge made no error in finding that it was authenticated in that the video footage was a substantially accurate and fair representation of the appellant completing a card transaction in the store at 12:33 am. The relevance of the video footage did not turn on whether the appellant and the victim were together at 12:30 am or slightly before or after.

R. v. Tessier, [2020] A.J. No. 826, Alberta Court of Appeal, F.L. Schutz, R. Khullar and J. Antonio JJ.A., August 4, 2020. Digest No. TLD-September142020010