R. v. Chapple

Attacking a Reid statement post-Oickle

Facts

• On February 4, 2010, the accused, Christa Chapple, was self-employed as a Day Home

operator caring for young children including the complainant, A.L. That day the complainant suffered a serious and unexplained head injury and had to be hospitalized. The accused called an ambulance and the child was transported to the Children's Hospital for treatment.

• The accused was interviewed on two occasions in February and April of 2010. During these interviews she was co-operative with the police and also consented to a search of her home. After obtaining additional medical evidence that indicated the injury to the complainant was caused by blunt force trauma, the police requested that the accused attend for a further interview over a year later. On May 5, 2011, the accused attended the Westwinds Police Campus for an interview. Prior to that interview the accused was charged with Aggravated Assault and given her Charter rights. She was also cautioned that she could be charged with Attempted Murder, Attempting to Suffocate and Failing to Provide the Necessities of Life. She asked to speak to a lawyer and did so.

• An interview of the accused was commenced at 8:41 am and concluded at 4:50 pm; a total of eight hours and nine minutes. The accused was not released from the interview room until 6:26 pm, a total of nine hours and forty-five minutes after the interview had begun. The transcript of the entire interview was 501 pages.

• Detective Karla Malsam-Dudar, conducted the interview using aspects of an interrogation called The Reid Technique. During the course of the interview, the accused gave an inculpatory statement.

• On at least 24 separate occasions during the interview the accused stated that on the advice of counsel she would exercise her right to remain silent and not give a statement. The accused was offered food, water and bathroom breaks, but only took advantage of the bathroom breaks.

• The Court entered into a voir dire to determine the admissibility of the accused's statement from the May 5, 2011, interview. In making its decision, the Court was called upon to determine if the circumstances of the interview were so oppressive as to have caused the accused's free will to be overborne, thereby making the statement inadmissible.

Det. Witt

• On cross-examination Detective Witt acknowledged that she had taken training in interrogational questioning including the Reid Technique. She also admitted that “a version” of the Reid Technique was used in the interview with the accused.

Detective Malsam-Dudar

• She acknowledged using parts of the of the technique including getting the background information and talking over the accused when she repeated several times throughout the interview that she had received legal advice not to speak to the police.

• The Detective stated she confronted the accused by saying that the medical community was pointing fingers at her. However, she denied suggesting to the accused that the medical community was saying the accused had committed the offence.

• It would appear that the treating physician did not conclude any wrongdoing, and the new investigation was based on an opinion from another doctor, who may have had their own disciplinary issues.

• Detective Malsam-Dudar agreed that it she spent about two hours during the interview getting background information and a feel for the accused. She stated she did that because the accused did not want to talk.

• The Detective admitted she was trained in and employed the following techniques during the course of an accusatory interview:

• Dissuade the accused from remaining silent.• When the accused seeks to exercise their right to remain silent, tell theaccused, that's what all lawyers say and they are not in your situation.• When an accused says they want to remain silent no matter how manytimes that sentiment is expressed by the accused, continue to question theaccused. • Advise the accused that the lawyer's advice will not make a difference.• Interrupt the accused when they try to express that they have a right toremain silent so as to get their mind off of that issue.• Keep talking as long as it takes to get the answers to questions.

• Suggest scenarios to the accused that fit with the police theory and whenthe accused disagrees with these scenarios continue to interrupt them.• Talk over the accused when they disagree with what is being suggested.• Engage in long monologues to try to control the direction of the interviewand prevent the accused from thinking about not talking to the police.• Continue the interview for lengthy periods of time to exhaust and confusethe accused.• Point out inconsistencies in the accused's memory to cause them toquestion their memory.• Confront the accused after speaking to them for a lengthy period of time.• Bring strong evidence at the confrontation stage that conflicts with the accused's version of events.[

• Play on the accused's emotions by talking about family and showingphotographs of the victim so the accused will let their guard down.• Cause the accused to feel that they are in a stressful situation by draggingthe interview out for lengthy periods of time.• Build a rapport with the accused by lengthy discussions of personalmatters, such as family, so that the they are more trusting andforthcoming.• Minimize culpability late in the interview by suggesting what hashappened is not that serious.• Offer explanations for the accused's actions that would indicate that theyare not a monster.• Put the blame on the victim.• Once lower culpability has been agreed to, attempt to increase that to agreater level.• Have the accused write a letter of apology at the end of the process whenthey have started talking.

• Detective Malsam-Dudar admitted that she used these techniques in the interview of the accused and kept employing them until approximately the six-hour mark where she then began to confront the accused and make suggestions that caused her to question her memory.

• She read Dr. Matshes opinion, as contained in the PowerPoint presentation, to the accused. However, shedid not make any attempt to explain that the opinion included a reference to “a complex, short fall onto or against one or more hard surfaces” that was consistent with the accused's version of events.

• In addition, the Detective admitted she talked about the accused's family and showed photos of the complainant in various states, to play on the accused's emotions. She continued the interview at length to increase the accused's level of stress. The Detective felt the accused was stressed throughout the interview and appeared more tired at the end of the eight hours of questioning.

• Detective Malsam-Dudar agreed that late in the interview she suggested to the accused that the injuries to the complainant were just a mistake and the result of a knee-jerk response and that the accused had no intent, so as to make the accused look like she was not a monster and therein less culpable. The Detective even admitted to putting blame on the complainant by suggesting that he was difficult and struggled with the accused even though the accused had never suggested that on any previous occasion. And when the accused began to agree with this lower level of culpability the Detective admitted that she tried to increase the level of culpability by suggesting that more force was used than initially admitted.

Trial Judge

• Analyzes the Reid technique under the only applicable Oickle factor: oppression.

Held• (1) Length of Interview

Lengthy monologues, constant interruptions and persistent questioning kept the interview or interrogation going in this case. Detective Malsam-Dudar said that the accused looked tired at the start of the interview and admitted to wanting to make the interview a stressful situation as her training had taught her that it would break an accused down and make them more likely to provide a statement. It was clear from the video that the accused became more and more tired as the interview progressed.

Although the length of the interview is not fatal to the admissibility of the statement on its own, it is a factor to be considered in determining admissibility.

(2) Ignoring right to remain silent.

• No magic number in determining how many times an accused must claim their right to silence for it to be rendered meaningless. It is a matter of looking at all of the relevant and related factors in combination. Here, the accused indicated at least 24 times that she wanted to remain silent. Each time the Detective disregarded that right. The accused continued to exercise that right for approximately six hours of the interview.

• I find the Detective's continual disregard of the accused's right to silence did render it meaningless. It was a classic use of the theme, “resistance is futile,” as referred to in R. v. Armishaw, 2011 ONSC 5624. Furthermore, it resulted in the accused no longer being able to exercise her free will. I find this alone to be sufficient grounds to exclude the accused's statement.

(3) Denigration of Legal Advice

• There was a clear tone throughout the interview, that Detective Malsam-Dudar was attempting to discount or denigrate the nature of the legal advice received by the accused. However, it did not rise to the level of denigrating counsel with the intent of undermining the accused's confidence in and relationship with counsel as in Burlingham.

• Still, the denigrating of legal advice, although not determinative of the admissibility of the statement on its own, is a factor to be considered in determining admissibility as it serves to support the theme that “resistance is futile,” in the context of this case.

(4) Use of Deceit• There was no overt deceit used by Detective Malsam-Dudar, which

differentiates this case from Armishaw where the investigator was found to have lied about the medical evidence. However, in this case it is clear that the certainty of the medical evidence was at the very least exaggerated. The Detective gave evidence that she was unaware she did not have all of the medical information available or that one of the explanations provided by Dr. Matshes (a complex, short fall) which she did have, was consistent with the accused's version of events. The Detective admitted that she did not take steps during the interview to explain to the accused that the option put forth by Dr. Matshes was consistent with the accused's version of events. In fact, it was quite the contrary, as the Detective continually maintained that the medical evidence clearly indicated that the accused was responsible for the complainant's injuries and there was no alternative explanation.

• I cannot say that the actions of Detective Malsam-Dudar rose to the level of an actual lie. Her handling of the medical evidence amounted to a withholding of pertinent information that the accused could have relied on in continuing to assert her innocence and her right to remain silent. In the end, the Detective maintained the entirety of the medical evidence was determinative of the accused's guilt when, in fact, there were medical opinions that were consistent with the accused's own version of events. Detective Malsam-Dudar’s improper use of the medical evidence may not have been by way of an intentional act of deceit, but it served the same function in that it deceived the accused.

• Although this inaccurate interpretation of the medical evidence, be it intentional or not, is not determinative of the admissibility of the statement, it is a factor to be considered.

(5) Themes, Alternative Question, Moral Minimization

• Detective Malsam-Dudar also used the Reid Technique when she gave the accused two choices:

• either she's a monster and she did it intentionally, or for once split second something went wrong and she did it.

• Either option, of course, would lead to the accused’s guilt.

In this case, Detective Malsam-Dudar made it clear that she too was not there tofind out if the accused was guilty, but why; and she had the medical evidence to back it up.

Det. Malsam-Dudar: It did happen Christa. That's the thing. It's not what if. It did happen. There's medical evidence looking at his skull that proved it happened. It's not what if.

Christa Chapple: Okay.

Det. Malsam-Dudar: It's how. And it's important to know it…

Christa Chapple: Why don't I remember …

Det. Malsam-Dudar: … in his recovery. It's important though.

Christa Chapple: … doing that? Why don't I remember doing that then?

Detective Malsam-Dudar then continued with a number of her many monologues, constant interruptions and further minimizing of moral culpability as the accused continued to maintain that she would never hurt anyone intentionally.

• Eventually Detective Malsam-Dudar got the accused to admit that she pushed the child away with one hand at page 419, line 14. However, that was still not good enough for the Detective and she continued to escalate her suggestions and therein the accused’s moral culpability. The Detective even demonstrated how the child stiffened and fought while in the accused's arms. Although it did not appear in the transcripts, you can see in the video that the accused is often looking to the Detective for direction. The Detective engaged in a number of demonstrations over the course of the interrogation and the accused often shrugged her shoulders as if she was giving in to the suggestion of the Detective and saying, “sure, I guess that's the way it happened.” In fact, she used the phrase, “I guess” on a number of occasions.

• At these times, the accused was clearly lost and confused and merely parroting back what the officer was telling her, to the point that the alleged unlawful act escalated from being an accidental drop, to an intentional push with one arm, to an intentional and forceful push with two arms; all of which fit with the Detective's theory of the case. When each version of the accused's story was rejected, she changed her story to satisfy the Detective. The sense of oppression was overwhelming during those moments.

• Eventually, the Apology Letter is written and the interview concludes. The fact that the accused relented and wrote the Apology Letter was also concerning. She was clear in her mind earlier in the interrogation that she would not write anything as per the instructions of her lawyer. Just as she has relented on her right to remain silent, she also relented on writing the Apology Letter. The bulldozing of the accused’s right to remain silent was complete.

• It is clear that Detective Malsam-Dudar effectively used the tools of the Reid Technique and caused the accused to give a stress-compliant or coerced-compliant confession as described by Ofshe & Leo.

Decision• This was guilt a presumptive interrogation disguised as truth-

seeking interview.

• Detective Malsam-Dudar was trained to use various techniques that are part and parcel of the Reid Technique. This was not like a Reid Technique interrogation, it was one. And for Detective Malsam-Dudar to suggest otherwise is a reflection on her credibility.

• Furthermore, the interview had all the appearances of a desperate investigative team that was bent on extracting a confession at any cost. It was not a case of simple persistent questioning to get at the truth as suggested by the Crown.

• Although there is no law prohibiting the use of The Reid Technique, I find that it has the ability to extinguish the individual's sacred legal rights to be presumed innocent until proven guilty and to remain silent in the face of police questioning. Innocence is not an option with the Reid Technique. Those who defend the Reid Technique may suggest that the problem lies with the interrogators who misuse the technique and not the technique itself. They may also say that the technique is intended to be used only in circumstances where the police are sure of an accused's guilt. These factors are of little solace to me and of no assistance to those innocent individuals who have given false confessions over the years at the hands of Reid Technique interrogators.

• I denounce the use of this technique in the strongest terms possible and find that its use can lead to overwhelmingly oppressive situations that can renderfalse confessions and cause innocent people to be wrongfully imprisoned. In this case, the policewere convinced of the accused's guilt even though there was medical evidence available that was consistent with the accused's version of events. They pushed ahead with the interview with one goal in mind: a confession. And that confession had to fit their theory of the case.

• When I look at the cumulative effect of all the above-mentioned factors arising out of theuse of the Reid Technique employed by Detective Malsam-Dudar, I am thoroughly satisfied that the accused's free will was overborne. I find accused's statement was the product of improper questioning and oppressive circumstances, which prevented her from exercising her free will. At the time of the confession the accused was physically exhausted and emotionally broken. Her responses were indicative of someone who would agree with any suggestion being put forth by the Detective. The accused's familiar refrain of “I guess” in response to many of the Detective's suggestions made that clear to me. I find the interrogation was aggressive, prolonged and psychologically manipulative. Itcreated an atmosphere of oppression that overcame the accused's free will. On that basis, I am not satisfied beyond a reasonable doubt that the confession of May 5, 2011, was voluntary.