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Police - Interrogation. R. v. Ordonio
In R. v. Ordonio (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a conviction of "one count of first degree murder".
Here the court extensively considers the 'Reid technique' of criminal suspect interrogation, and Canadian courts' treatment of it:V. THE REID TECHNIQUE OF QUESTIONING
A. The criminology literature
[35] The Reid Technique of questioning forms one part of what the criminology literature describes as the broader Reid Method. The method was developed by John Reid and others in the 1940s as an interview and interrogation technique designed to evaluate the veracity of a suspect without the use of mechanical aids, such as the polygraph. The Reid Method has three stages: (i) the pre-interview factual analysis of a case; (ii) a behavioural analysis interview of a suspect; and (iii) the interrogation of the suspect, which the literature calls the Reid Technique.
[36] The first two stages of the Reid Method are described by Nadia Klein in “Forensic Psychology and the Reid Technique of Interrogation: How an Innocent Can Be Psychologically Coerced into Confession” (2016) 63:4 Crim LQ 504, as follows at pp. 506-508:The first stage of the Reid technique is a factual analysis of the particular case. Before any interviews or interrogations take place, an investigator should become thoroughly familiar with the known facts and circumstances of the case, as it would not be possible to conduct an effective interview or interrogation without this knowledge.
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The second stage is the Behavioural Analysis Interview (BAI), and is the result of Reid and [Frank] Inbau's considerable work on conducting polygraph interviews. In his work, Reid observed “that truthful suspects appeared to display different attitudes and behaviours during their polygraph examinations than deceptive suspects.” Reid meticulously documented these behaviours over several years and developed categories of ‘behaviour symptoms’ that seemed to be a reliable indicator of truth or deception. This led to the creation of ‘behaviour provoking questions,’ questions that an innocent suspect tended to answer differently from a guilty suspect. These questions became the foundation of the BAI.
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Using the guidelines outlined by Reid, by the end of the BAI the investigator should be “definitely or reasonably certain” as to the guilt of the suspect. For those suspects that are deemed truthful this is where the process ends. For those found to be deceptive, the investigator moves into the final stage, the interrogation. [Footnotes omitted.] [37] The method’s second stage – the behavioural analysis interview – has attracted much critical comment in the literature, which calls into question the assertion that interrogators can accurately identify those who are lying during the BAI phase of the interview: Wyatt Kozinski, “The Reid Interrogation Technique and False Confessions: A Time for Change” (2017) 16:2 Seattle J Soc Justice 301, at p. 317; Saul M. Kassin, Christine C. Goldstein & Kenneth Savitsky, “Behavioral Confirmation in the Interrogation Room: On the Dangers of Presuming Guilt” (2003) 27:2 L & Human Behaviour 187, at p. 188.
[38] The third and final stage of the Reid Method involves the interrogation technique that the jurisprudence calls the “Reid Technique”. A conceptual summary of the Reid Technique was provided by Kozinski at pp. 311-312:According to the authors of the Reid Manual, “only people who are believed to be guilty are ... interrogated.” This means that, by the time police get to this stage in the process, they are no longer engaged in the objective collection of information. Instead, their single-minded objective is to get the suspect to admit his guilt and sign a confession that is rich in detail and other indicia of voluntariness and genuineness. While the Reid Manual describes this part of the Technique as a nine-step process, it actually resolves itself into three major components: (1) tell the suspect you already know for sure he committed the crime, and cut off any attempts on his part to deny it; (2) offer the suspect more than one scenario for how he committed the crime, and suggest that his conduct was likely the least culpable, perhaps even morally justifiable (minimization); (3) overstate the strength of the evidence the police have inculpating the suspect – by inventing non-existent physical evidence or witness statements, for example – and assuring him he'll get convicted regardless of whether he talks. The driving idea is to persuade the suspect that it's in his best interest to give a confession that paints him in a positive light. [39] As Kozinski mentions, the literature usually breaks the Reid Technique down into nine steps. An exhibit marked in the proceedings below set out the nine steps of a Reid Technique interrogation:The Reid technique's nine steps of interrogation are:1. Direct confrontation. Advise the suspect that the evidence has led the police to the individual as a suspect. Offer the person an early opportunity to explain why the offense took place.
2. Try to shift the blame away from the suspect to some other person or set of circumstances that prompted the suspect to commit the crime. That is, develop themes containing reasons that will psychologically justify or excuse the crime. Themes may be developed or changed to find one to which the accused is most responsive.
3. Try to minimize the frequency of suspect denials.
4. At this point, the accused will often give a reason why he or she did not or could not commit the crime. Try to use this to move towards the acknowledgement of what they did.
5. Reinforce sincerity to ensure that the suspect is receptive.
6. The suspect will become quieter and listen. Move the theme of the discussion towards offering alternatives. If the suspect cries at this point, infer guilt.
7. Pose the "alternative question", giving two choices for what happened; one more socially acceptable than the other. The suspect is expected to choose the easier option but whichever alternative the suspect chooses, guilt is admitted. As stated above, there is always a third option which is to maintain that they did not commit the crime.
8. Lead the suspect to repeat the admission of guilt in front of witnesses and develop corroborating information to establish the validity of the confession.
9. Document the suspect's admission or confession and have him or her prepare a recorded statement (audio, video or written). [40] Klein argues that before an interrogation using the Reid Technique starts, the investigator has decided the suspect is guilty and the purpose of the interrogation is to elicit a confession. However, she notes that the “curators of the Reid technique adamantly deny this fact and state that their interrogation method is designed to elicit the truth from a suspect, not a confession”: at p. 508.
[41] Several articles in the criminology literature offer descriptions of each of the nine steps in the Reid Technique: Klein, at pp. 508-512; Timothy E. Moore & C. Lindsay Fitzsimmons, “Justice Imperiled: False Confessions and the Reid Technique” (2011) 57:4 Crim LQ 509, at pp. 512-513; Frances E. Chapman, “A Recipe for Wrongful Confessions: A Case Study Examining the ‘Reid Technique’ and the Interrogation of Indigenous Suspects” (2020) 28:3 Michigan State Intl L Rev 369, at pp. 393-424. See also R. v. Barges, 2005 CanLII 47766 (ON SC), at paras. 53, 80. The trial judge in R. v. L.F., [2006] O.J. No. 658 (Ont. S.C.), summarized how the nine steps often are applied, stating at para. 9:[The police officer] generally conducted the interview/interrogation using what is known as the Reid Technique of Interviewing and Interrogation, although he minimized its importance to his interview. This technique involves the interrogator developing themes during a tightly controlled questioning session. The themes include befriending the suspect, minimizing his involvement in the offence that the officer tells him he “knows absolutely” he committed and baiting the suspect by appealing to his sense of manhood, pride, or in this case, his love for his children. The questioner immediately cuts off any attempts by the suspect to deny involvement. He repeatedly asks for an explanation of why he committed the offence, rather than whether he did it.[5] [42] Klein offers her assessment of the psychological goals the Reid interrogation process seeks to achieve, stating at p. 513:The Reid technique construes interrogation as the psychological undoing of deception. It is a two-stage process. The first stage, encompassing steps one through four of the nine-step interrogation, is designed to reduce the suspect's self-confidence in surviving the interrogation by convincing them that there exists incontrovertible evidence of their guilt, that no reasonable person could come to any other conclusion, and that there is no way out of their situation other than to confess. Once the suspect has accepted that they are powerless to change their situation, the investigator moves to the second stage, steps five through nine, wherein inducements are offered, by way of alternate reasons for the crime, that are designed to persuade the suspect that confessing is in their best interest psychologically, materially, and legally. [Footnotes omitted.] [43] Klein continues, at p. 514:According to Reid, the suspect will confess when the perceived consequences of the confession are more desirable then [sic] the internal struggle of lying. Therefore, the goal of a Reid interrogation “is to decrease the suspect's perception of the consequences at confessing, while at the same time increasing the suspect's internal anxiety associated with [their] deception.” [Footnotes omitted.] [44] Gisli H. Gudjonsson, in The Psychology of Interrogations and Confessions: A Handbook (Chichester: Wiley, 2003), echoes Klein’s characterization of the psychology underpinning the Reid Technique when she writes that the technique is broadly based on two processes: (i) breaking down denials and resistance; and (ii) increasing the suspect’s desire to confess: at p. 11.
[45] The literature suggests that not all nine steps need be used during a particular Reid Technique interrogation: Chapman, at p. 386. However, the materials filed before us on this appeal do not disclose any consensus on which or how many of the nine steps must be used by a police questioner before the interrogation can be classified as one that uses the Reid Technique.
[46] As well, the literature discloses that several of the “steps” used in the Reid Technique are techniques used by other forms of police questioning. For example, Gudjonsson summarizes 1994 and 1996 studies by Richard A. Leo[6] of police interrogation techniques (which were not limited to the Reid Technique) that identified 24 interrogation tactics used by the police. Leo found that the average number of discrete tactics used per interrogation was 5.6: Gudjonsson, at p. 32. Leo concluded that the four most successful interrogation tactics in terms of obtaining a confession were: (i) appeal to the suspect’s conscience; (ii) identify contradictions in the suspect’s story; (iii) use praise or flattery; and (iv) offer moral justifications and psychological excuses for the event.
[47] These two points – the lack of consensus on the elements necessary for an interview to qualify as a Reid Technique interrogation and the sharing of some tactics by both the Reid and non-Reid techniques of questioning – are important points to which I will return in my analysis in Part VII.B below.
B. Judicial consideration of the Reid Technique
[48] Elements of the Reid Method, including the third stage Reid Technique of questioning, have been the subject of comment by Canadian courts since at least 1992: R. v. Grant, [1992] M.J. No. 641 (P.C.).[7]
[49] Some judicial inquiries into the voluntariness of specific statements have noted how aspects of the questioning employed drew on tactics that form part of the Reid Technique, such as the use of themes, direct confrontation, minimization of responsibility, physical contact with the accused, and the development of a relationship between the interviewer and the accused: for example, R. v. Minde, 2003 ABQB 797, 343 A.R. 371, at paras. 32, 38, 41, 46, and 87;[8] R. v. Barton, [1993] O.J. No. 1231 (C.A.), at para. 6.
[50] Some cases observe that the way in which the technique was employed was “oppressive”. For example, in R. v. M.J.S., 2000 ABPC 44, 80 Alta. L.R. (3d) 159 the court commented, at para. 45:When stripped to its essentials the Reid Technique is solely designed to convince the suspect that he is caught, that the police have overwhelming evidence that he is the culprit, and that there is no way that the suspect will be able to convince the interrogator or anyone else involved in the Criminal Justice System that he didn’t do the crime. [51] In Barges, in ruling that the post-arrest interview was inadmissible, the court stated, at para. 96:The length of the interview, the sometimes aggressive stance used, the repeated assertions by the accused that he does not wish to answer or speak to the police, and the persistent reference to the themes that it is only fair to his family for him to advance his side of the story, and, more importantly, that failure on his part to do so will lead to the police putting forth a picture that he is a monster and a slaughterer, and the suggestions by the interviewers that if he wishes to give his explanation, now is the time and that he may not have any further opportunity to do so all leave me with a reasonable doubt as to whether this statement has been proven to be voluntary. A fair reading of the interview supports the inference that cooperation by Mr. Young may deflect what otherwise will be the painting of a planned and deliberate murder involving him. Although he does [not] succumb in the sense of any directly inculpatory admissions, those utterances he does make which the Crown views as useful flow from the atmosphere created within the interview. [Emphasis added.] [52] In R. v. Thaher, 2016 ONCJ 113, the court, at para. 118, describes the Reid Technique as “inherently coercive”. It ruled inadmissible the statements obtained by using the Reid Technique of questioning, concluding, at para. 119:For the potentially inculpatory portions of the second statement to be admitted, the Crown would have to prove beyond a reasonable doubt that Mr. Thaher’s utterances, made after hours and hours of denials, were the product of a choice he made and not the combination of oppressive conditions and the presentation of false evidence leading him to doubt his own memory. I have a reasonable doubt on this issue. As result, the statements will not be admitted. [53] Ontario jurisprudence consistently has held that police use of the Reid Technique, or elements thereof, does not in itself render a statement inadmissible. However, the case law instructs that a court must look at all the circumstances of a Reid Technique interrogation, together with their cumulative effect, to determine whether the Crown had discharged its burden to establish voluntariness beyond a reasonable doubt.
[54] That approach goes back as far as the 1993 decision of this court in Barton, in which a suspect was subjected to the three-stage Reid Method, with the second stage involving the administration of a polygraph test followed by a third-stage interview using the Reid Technique. Inculpatory statements made by the accused were admitted at trial and the accused was convicted. In dismissing the appeal from conviction, Carthy J.A. stated, at para. 7:I agree with counsel for the Crown that wherever such techniques, whether through polygraph or otherwise, are used, the court should give them the closest scrutiny to assure that statements are truly voluntary. But this is not to say that particular procedures should be prohibited as invariably leading to statements which are not voluntary. I see Amyot[9] as a finding that in that case the test created an atmosphere in which the individual’s confession could not be considered voluntary. [Emphasis added.] [55] In a concurrence in R. v. Barrett (1993), 1993 CanLII 3426 (ON CA), 64 O.A.C. 99 (C.A.), rev’d on other grounds, 1995 CanLII 129 (SCC), [1995] 1 S.C.R. 752, Carthy J.A. stated:Trained police investigators understand the psychology of criminal behaviour and recognize symptoms of guilt or innocence. They have methods of questioning to reveal one or the other, and to draw confessions from the guilty. These tactics and techniques are described in full in Criminal Interrogation and Confessions, 3rd ed., Ingrau, Reid and Buckley. So far as I can see there is nothing offensive in these techniques, but the fact that I have never seen them outlined in viva voce evidence on a voir dire suggests that the police may be reticent in publicizing their methods. [56] Subsequently in R. v. Whalen, [1999] O.J. No. 3488,[10] Fontana J. commented on Barrett, at para. 28:When, in Regina v. Barrett, Carthy, J.A., says that he can see nothing offensive in the Reid Technique, (which I say parenthetically) includes the polygraph induced statements, Carthy, J.A. is not in my view, pronouncing his blessing in absolute terms on the technique. He is speaking with regards to the voluntariness of statements generally. In other words, just because the Reid system was used, is not of itself sufficient reason to discredit voluntariness or to approve it. It is one more factor to be taken into consideration and it must be measured against all of the general principles which the cases set out. [57] In R. v. C.T., 2015 ONCJ 299,[11] the court, while noting the extensive academic criticism of the Reid Technique, stated, at para. 22:Despite the concerns respecting its use, it is clear that the use of the Reid technique will not by itself necessarily lead to the conclusion that a statement is not voluntary: R. v. Visciosi, [2006] O.J. No. 3251 (S.C.J.) at paras. 14-15. As Oickle makes clear, the determination must be contextual and each case will turn on its own facts. However, given the inherently coercive nature of the technique and the concerns about its ability to create false confessions, in my view the use of the technique creates a need for extra caution in evaluating the voluntariness of a statement. [Emphasis added.] [58] In L.F., where the court held that the statements were given voluntarily by the accused, the court stated, at para. 10:The Reid Technique of questioning is not inherently objectionable. The police must be afforded the necessary latitude to perform their responsibilities to society. Inflexible rules must not be allowed to straitjacket their legitimate pursuits. Questioning suspects and witnesses to a crime is an essential and often the most effective investigative tool the police possess. However, the protection of the Charter rights of accused persons to fair treatment during investigations, including, for example, the right to be secure against unreasonable search and seizure or to have used against them only confessions that are voluntarily given to the police, and many others, must be assiduously protected. The court’s function is to find the fair and appropriate balance between these competing interests. [Emphasis added.] [59] Then, in R. v. Morgan and Smith, 2010 ONSC 3459, 221 C.R.R. (2d) 322,[12] Ricchetti J. stated, at para. 25:I agree with the statement of Justice Wein in R. v. Vicisoso, [2006] O.J. No. 3251(S.C.) at paras. 14-16 that the use of the Reid Technique is by itself not objectionable. See also R. v. L.F., [2006] O.J. No. 658 (S.C.) at paras. 9-10. [60] Subsequently, Forestell J. in R. v. Jorgge, 2014 ONSC 6022,[13] stated, at para. 32:The Reid technique was utilized in the interview in this case. The utilization of the ‘Reid technique’ does not in itself render a statement inadmissible. The issue is whether the use of the technique in the particular circumstances of the individual case will leave the trier with a reasonable doubt as to voluntariness. [Emphasis added.] [61] To similar effect were the comments of Schreck J. in Thaher, where he stated, at para. 30:Of course, use of the Reid technique or something akin to it does not automatically render a statement inadmissible: R. v. Visciosi, [2006] O.J. No. 3251 (S.C.J.) at paras. 14-15. However, the technique is inherently coercive and for that reason has been the subject of considerable judicial and academic criticism. [Citations omitted.] [62] To date, most Ontario cases have adopted the following approach to a voluntariness inquiry where it is alleged the Reid Technique of questioning has been used:. In the words of Morgan and Smith, at para. 26, “[t]he fundamental question is not what technique the police officer used but rather, considering all the circumstances of the police questioning and statements given by the accused, whether the statement was voluntarily given.… [I]t is not the court’s role to evaluate the utility of the Reid Technique but to adjudicate on the admissibility of the end product” (citations omitted);
. “The issue is whether the use of the [Reid] technique in the particular circumstances of the individual case will leave the trier with a reasonable doubt as to voluntariness”: Jorgge, at para. 32;
. “[T]he onus is on the Crown to prove voluntariness beyond a reasonable doubt and that all of the circumstances are to be viewed cumulatively in deciding whether this onus has been met.… [The] main concern in the circumstances of this interview flows from a consideration of the end result of the interview seen as a whole”: Barges, at paras. 82, 84 (emphasis added). At paras 68-91 the court usefully considers, but dismisses, a change in law advocated by the intervenor Criminal Lawyers Association, that - where the Reid technique is used - there should be added a rebuttable presumption of involuntariness.
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