Supreme Court restores conviction in Calgary murder case after ruling statements to police were voluntary

The Supreme Court of Canada has restored a Calgary man's first-degree murder conviction, ruling his statements to police wereadmissible as evidence against him at trial.

RussellTessierwas originally found guilty by a jury in 2018,11 years after the body of hisfriendAllan GeraldBerdahl, 36, was discovered in a ditch north of Calgary, on March 16, 2007.

The conviction came after the trial judgeallowed the panel to hear evidence of whatTessierdisclosed to policebefore investigators told him of his right to a lawyer and cautioned him that anything he said could be used against him as evidence. The Crown arguedTessier was not considered a suspect during the questioning, which is why a caution had not been issued.

In 2020, the Alberta Court of Appeal overturned the conviction and ordered a new trial but prosecutors took the case to the Supreme Court which agreed toprovide clarity on the legal issue of when statements to police are considered voluntary.

'A free or meaningful choice'

A full panel of nine judges heardTessier'sappeal and on Friday morning issued a seven-to-two ruling that the statementsTessiermade to police werevoluntary and therefore admissible.

"The accused exercised a free or meaningful choice to speak to the police and was not unfairly denied his right to silence," reads part of the 134-page decision.

The SCC majority did find Tessier was considered a suspect at the time of the questioning, meaningthe burden was on the Crown to prove the accused's statements were voluntary.

Ultimately, the Supreme Court ruled the Crown proved "the absence of a caution was without consequence and that the statements were,beyond a reasonable doubt and in view of the context as a whole, voluntary."

Tessier was "well aware of the consequences" of speaking with police and knew anything he said "could be used as evidence," wrote the majority, concludingTessier "had an operating mind and was not otherwise tricked in the circumstances."

• Supreme Court of Canada agrees to hear appeal of Calgary murder case

Tessier's first contact with police took place on March 17, 2007.

One day earlier, Berdahl was shot dead in the early morning hours, his body abandoned in a ditch on a remote gravel road northeast of Calgary and discovered by an oilfield worker hours later.

Tessier and Berdhal werefriends and business partners who sold used clothing by the pound collected from unclaimed baggage fromGreyhound busses. They also shared ownership ofa vintage car.

The day after Berdhal's body was discovered, Tessier was interviewed by police.Investigators hoped to learn more about the victim and piece togetherhisfinal hours.

• 'It's over': Family of man found dead 11 years ago relieved after jury finds killer guilty

In fact, Tessierwas interviewedtwice that day without police placing him under arrest.

The first-degree murder charge wasn't laiduntil 2015 when DNA from one of the cigarette butts found near the victim's body came back matching Tessier.

The first interview

At trial,Tessier's lawyer Pawel Milczarek argued his client'sstatements to investigators were involuntarily and that he'd been psychologically detained by police.

When Tessier arrived at the RCMP detachment on March 17, 2007, he was not considered a suspect.

After asking some initial questions about the victim, the investigator's questions became more pointed. At one point the officer asked Tessier if he had killed Berdhal.

The investigating officer also asked if he could take photos of Tessier's shoes, as prints had been left near the body.

Tessierwas not advised of his right to a lawyer, to stay silent or told that his comments to police could be used against him.

• Calgary man arrested 8 years after Allan Berdahl's killing

He eventually went home but hours later he contacted police again.

Tessiertold the same officer Berdahl had been staying with him and that he'd stored a gun in the bedroom used by his friend.

A missing gun

Police escorted Tessier home, where theydiscovered the weapon was missing. That's when RCMP say Tessier became a suspect and officers issued a cautionand advised him of his right to a lawyer.

In Tessier's police interview, he told the officerhe'd last seen his friend around 8 p.m. the night before the body was discovered.

Butsurveillance video presented as evidence in the trial showed the pair inside a convenience store, at 12:32 a.m. just eight hours before Berdahl's body was discovered with five gunshot wounds in the head.

The Crown suggested the motive for Berdahl's killing was an argumentover thevehicle they shared in the weeks before Berdhal's death.