Failure to caution a suspect: R v Tessier, 2022 SCC 35

The Supreme Court of Canada’s decision in R v Tessier, 2022 SCC 35 (14 October 2022) concerns the admissibility consequences of a statement obtained without giving the standard police caution about the right to silence.

This was an issue determined under Canadian common law. It may be compared, by evidence law buffs, to the way the same issue is addressed in the statutory evidence law of New Zealand under the Evidence Act 2006.

The Canadian law gathers together concepts, most of which are familiar: voluntariness, fairness, reliability, balance, repute to the administration of justice, prima facie, beyond reasonable doubt, threats, promises, oppression, trickery, and the so-called operating mind doctrine (which requires that the interviewee exercised a meaningful choice to speak and was not improperly influenced by state action).

These are packed into a decision model that is summarised at [89]. It applies to any person questioned as a suspect, as defined at [81]-[82].

In New Zealand the Practice Note on Police Questioning issued by the Chief Justice requires a caution to be given in the circumstances described in [2]. It applies to anyone in custody, and also to anyone whom a member of the police has sufficient evidence to charge with an offence.

Failure to caution such a person can have forensic consequences, according to whether the admissibility of the uncautioned statement is challenged under s 28 (unreliability), s 29 (influenced by oppression), or s 30 (improperly obtained). The standard on each issue is, for unreliable and improperly obtained statements, the balance of probabilities, and for those obtained by oppression beyond reasonable doubt. Reading each in its context suggests a greater intolerance of oppression than of unfairness.

Here the concern is with investigatory fairness, not trial fairness. In Tessier the  Canadian court notes that fairness is important but it doesn’t exclude other values (at [72]). Similarly, under s 30 the consequences of unfairness in the obtaining of evidence is determined by the balancing exercise described in that section.

The statement was ultimately ruled admissible in Tessier. Would the same result have been arrived at under New Zealand law? (5 marks.)

Three fundamentals of evidence law: R v Schneider, 2022 SCC 34

You wouldn’t expect to find huge differences in the law of evidence between common law legal systems, even where legislation has replaced the common law. So it is reassuring to experience once again the similarity of Canadian evidence law to that in New Zealand: R v Schneider, 2022 SCC 34.

The appeal concerns the law of hearsay. In general terms, the decision framework for determining admissibility can be, and is, put as having three component parts: (1) is the evidence relevant? (2) Is it excluded pursuant to a rule? (3) Should an applicable discretion have been exercised so as to exclude it? [1]

The Supreme Court of Canada split 7-2 on the relevance component. The minority ([89] ff) would have excluded the evidence because it was impossible to determine its relevance as it was too vague to be identified. You have to know what the challenged evidence is before you can decide whether it is relevant. And here, its prejudicial effect necessarily outweighed its probative value ([96]).

The majority, being satisfied that the challenged evidence was relevant, then considered whether it was inadmissible because of the hearsay rule. Here the evidence was of what the defendant himself had said, and unsurprisingly it was not inadmissible hearsay. In New Zealand we don’t apply the hearsay rule to a defendant’s own statements because there are separate provisions in the Evidence Act 2006 covering this. [2]

Then, and this is the only bit that I find incongruous, the third component of the determination was addressed. It was referred to as a “balancing” of probative value against prejudicial effect. [3]

This so-called balancing has a long history in the common law. It isn’t really balancing, because a high risk of improperly prejudicial effect is not needed to make evidence inadmissible when its probative value is high. Improper prejudice usually amounts to a risk that the fact-finder will use the evidence in an improper process of reasoning. If there is that risk, and if it can’t be overcome by judicial instruction, then the evidence will be inadmissible no matter how probative it is.

Even where this discretion is described as a “weighing” exercise, this is a context where weighing is not balancing. But I have said this before, on 8 October 2019, in greater detail. This is just a matter of getting the decision model clear.

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[1] In New Zealand we no longer (since the enactment of our evidence law) use the term "discretion" to describe the decision process, and there is no deference to the trial judge. Instead, the various admissibility decisions in criminal cases are treated as applications of rules and admissibility is a question of law (see R v Gwaze [2010] NZSC 52, noted here on 18 May 2010) and on appeal the appellant is entitled to the unfettered judgment of the appeal court. In that sense it is sufficient to say that in New Zealand the decision framework has only the first two components mentioned in Schneider.

[2] The Evidence Act 2006 largely enacted the New Zealand common law together with the previous legislation (with some changes, such as the provisions concerning expert evidence, compare Ellis v R [2022] NZSC 115 and s 25 of the current Act) on specific topics. The special provisions on the admissibility of a defendant’s own statements (see s 27 and the sections mentioned therein) were necessary to preserve what had been an exception to the common law rule excluding hearsay (see Scheider at [52]).

[3] We have enacted this too: s 8, where it is described as a weighing, and the relevance rule is in s 7.

Tikanga Māori and the common law of New Zealand: Ellis v R (Continuance) [2022] NZSC 114

Today our Supreme Court released two decisions in the Ellis case. The case concerns the convictions in 1993 of the appellant for sexual offending at the Christchurch Civic Creche. The first of the decisions contains the reasons, in separate judgments, for allowing the appeal to continue despite the death of the appellant after the grant of leave to appeal. The second is the substantive decision of the Court in a single judgment quashing all the convictions. I will just mention the first decision here, and I do not try to give a detailed account, as there is no substitute for reading the individual judgments.

The first decision, Ellis v R (Continuance) [2022] NZSC 114, includes important discussions of the relationship between tikanga Māori and New Zealand common law. Fortunately for everyone, the Court has done the hard work of pointing us to the relevant parts of the judgments in its Summary of Reasons, paras [1]-[23].

To what extent is tikanga part of the decision? The reasoning of the judges differed, but fell into two camps. The majority, Glazebrook, O’Regan and Arnold JJ, were able to decide the continuation-of-the-appeal point on factors listed at [8], without requiring those factors to be modified in this case by tikanga concepts which nevertheless “may be relevant” [11]. The minority, Winkelmann CJ and Williams J, were able to “fold in” tikanga concepts into their decision framework [10].

The unanimous approach to tikanga is summarised at [19]: where relevant, tikanga can be “recognised in the development of the common law”. The majority (here, Winkelmann CJ, Glazebrook and Williams JJ) held that the “relationship between tikanga and the common law” will evolve contextually, case by case [21]. Further, “the courts must not exceed their function when engaging with tikanga” [22].

Glazebrook J’s remarks at [126]-[127] describe the current relationship between tikanga and the common law. Winkelmann CJ notes, and agrees, that the role that tikanga will play in the development of the common law is best addressed on a case by case basis [183]. Williams J too stressed the importance of context [261], [266]-[272].

Tikanga was relevant in this case because the convictions adversely affected the mana , among other tikanga considerations, of Mr Ellis and his family: [128]-[135]. Significantly, Mr Ellis was not Māori [136], but expert opinion was that there was nevertheless an impact on his mana [141]. Glazebrook J noted that tikanga may be relevant “particularly if any of the parties involved are Māori” [144], and even where they are not a tikanga perspective may highlight important values [145]-[147].

I do not think that this case supports the view that a separate legal system should be developed, concentrating on tikanga values. Rather, it seems that the common law (where applicable - that is, where not replaced by legislation, which itself may require consideration of tikanga) will evolve and be informed by tikanga where relevant, either by taking it into account on an individual basis, or by adopting it gradually as precedent. The process will be one of enrichment and not of contrast. The courts cannot change tikanga, or rule on what tikanga should be, but they can accept expert opinion on tikanga, just as they can accept expert opinion on, for example, science, without being able to change the science itself. Tikanga can serve to emphasise what is common to everyone.

Update: for an interesting media review of the decision and a collection of commentaries, see this article from Stuff, published on 15 October 2022. I must say that some of the critical comments about judges over-stepping their role and trespassing on what is parliament's business are incorrect. If we think back to how the common law started, when King Henry II sent judges in England on circuit to ascertain and apply local laws, and then required them to hold meetings to thrash out a law that, taking the best of all the ideas, would subsequently be applied across England, we can see how the common law - which is the business of judges and which is always able to be replaced by legislation - can draw upon the best of the ideas circulating in the country and meld them together. If parliament thinks some improvement is necessary, it can pass the appropriate enactments.

Further update: Observations on tikanga are to be found in Smith v Fonterra Co-operative Group Limited [2024] NZSC 5 at [182]-[189]. At [187]: "... tikanga was the first law of New Zealand, and it will continue to influence New Zealand’s distinctive common law as appropriate according to the case and to the extent appropriate in the case. [Footnote: The past and present interface of tikanga and the common law was recently discussed in: Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023)]."