In the early morning hours of March 16, 2007, the deceased’s body was discovered in a ditch near Calgary. The victim had been fatally shot in the head. Police determined that Mr. Russell Steven Tessier was a friend and business associate of the deceased, and asked Mr. Tessier to come in for an interview the following day.

Mr. Tessier agreed to the interview and met with police for almost 3 hours. At no point during this initial interview did police caution Mr. Tessier or advise him of his right to counsel. According to police, at that point in time, Mr. Tessier was not a suspect – police were simply trying to obtain a timeline and information about the deceased. At Mr. Tessier’s suggestion, he even took the interviewing officer to a truck to retrieve items that belonged to the deceased.

After the interview, Mr. Tessier called the police detachment, twice, with additional information. When no one returned his call, he re-attended at the station that same evening. Mr. Tessier told the officer that he had forgotten to tell him that he had retrieved his gun from a shooting range the day before and stored it in its case in his bedroom closet. The victim had been staying with Mr. Tessier for a few days before he died and had occupied that bedroom. Mr. Tessier asked the officer to accompany him to his apartment in Calgary to confirm that the gun was still there. Two police officers then drove to Calgary with Mr. Tessier. At this point, police had not informed Mr. Tessier that the victim had been shot in the head, and may not even have known that fact themselves.

When they arrived at the apartment, the gun was not in its case. Mr. Tessier appeared “shocked” and said that the victim must have taken the gun before he left. Police then “Chartered and cautioned” Mr. Tessier.

At trial, Mr. Tessier’s counsel sought to exclude all of his statements – both inculpatory and exculpatory – during his first and second police interviews on March 17, 2007. The trial judge rejected Mr. Tessier’s argument that he was psychologically detained. He found no evidence of threats or inducements, no atmosphere of oppression, and no reason to doubt that Mr. Tessier had an operating mind. Although Mr. Tessier had not been cautioned by police, he was not a person of interest at the time he gave the statements. The trial judge admitted both of Mr. Tessier’s statements.

Mr. Tessier’s trial proceeded before a jury. He was found guilty of first degree murder. He appealed his conviction to the Court of Appeal for Alberta. The Court unanimously held that the trial judge erred in his analysis of whether Mr. Tessier made a meaningful choice to speak with police before he was cautioned. The Court set aside the conviction and ordered a new trial.

The Crown was granted leave to appeal to the Supreme Court of Canada