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.)
