Calgary Crown can appeal decision to grant convicted murderer a new trial, says Supreme Court

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The nation’s top court will hear a Crown appeal of an Alberta decision to grant convicted murderer Russell Steven Tessier a new trial in a cold-case homicide.

The Supreme Court announced online Thursday that it had granted the Crown leave to argue against the Alberta Court of Appeal decision.

Alberta’s top court rules last Aug. 4, that the judge in Tessier’s jury trial erred in allowing a statement he made to police before he was a suspect to be admitted into evidence.

A three-member Alberta Court of Appeal panel agreed with defence lawyer Pawel Milczarek that Justice Keith Yamauchi erred in his analysis of his client’s right to silence.

A jury subsequently convicted Tessier of first-degree murder in the March 16, 2007 shooting death of Alan Berdahl.

The Alberta court noted Yamauchi found that because Mounties did not consider Tessier a suspect when he spoke to them the day after Berdahl’s murder, the officer conducting the interview was not required to give the accused a caution that his words could be used against him, making them voluntary.

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The trial judge erred by elevating the ‘suspect’ rule of thumb to a legal test. The question before him was not whether the police needed to administer a caution. It was whether Mr. Tessier spoke to police voluntarily,” the appeal judges said in a written ruling.

The trial judge failed to consider the perspective of Mr. Tessier and whether the Crown had proven beyond a reasonable doubt that he was able to make a meaningfulchoice to speak to the police in the absence of a police caution.

Berdahl’s body was found in a snowy ditch off Range Road 282, just east of Highway 2 and Carstairs. He had been shot five times in the head. Tessier wasn’t charged until 2015, when DNA on a discarded cigarette found near the scene came back positive to the accused.

Tessier was released on bail in October.

KMartin@postmedia.com

On Twitter: @KMartinCourts

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