Court said existing frameworks minimize the chance that Reid Technique will yield false confessions
The Ontario Court of Appeal ordered a new trial in a murder case on Tuesday, ruling that a trial court shouldn’t have considered a statement that the defendant had given police under prolonged, aggressive questioning.
However, the OCA declined the defendant’s request to amend a common law rule regarding confessions. Under the proposed amendment, courts would consider any suspect’s statement presumptively inadmissible as evidence if it resulted from police questioning the suspect using the Reid Technique, a confrontational and high-pressure interrogation method.
“I am not persuaded that the record before us demonstrates that the existing confessions rule is failing to achieve its objective of preventing the admission of false confessions when the statements were elicited by police use of the Reid Technique, or any other technique for that matter,” the court said in its decision.
The case involves the 2015 murder of Teresa Hsin, who was found dead in her car in a Mississauga parking lot. According to the Crown’s theory, Hsin had been stabbed to death two days earlier.
Three people, including Hsin’s son, were charged in connection to her death. Police alleged that Hsin’s son hired Justine Ordonio to murder his mother and arrested him for first-degree murder.
At the police station, police questioned Ordonio for thirteen hours. He wrote and signed a statement regarding his involvement in Hsin’s death. According to the OCA, parts of the statement were incriminating. However, they did not exactly correspond to the prosecutors’ theory of the case.
Ordonio later told the court that his statement was the product of the Reid Technique, so it was not provided to police voluntarily. Under a common law confessions rule, defendants’ statements are inadmissible in court unless prosecutors can prove beyond a reasonable doubt that they were voluntary.
However, a trial judge rejected Ordonio’s argument and ruled that his statement was voluntary and admissible. In 2019, a jury convicted Ordonio of first-degree murder.
Ordonio appealed, arguing that the trial judge incorrectly assessed his statement to the police as voluntary. He also adopted the stance of the Criminal Lawyers Association, which intervened in the case, that the confessions rule should be amended so that in cases where police use the Reid Technique to question suspects, the resulting statements are presumed to be involuntary.
The OCA tossed out this second argument. The court noted the CLA’s stance that confessions resulting from the Reid Technique are “inevitably suspect.” However, the court maintained that “the existing confessions rule establishes a framework designed to minimize the possibility that false confessions find their way into the evidence that a trier of fact considers.”
The OCA added that amending the confessions rule would require “inject[ing] a new threshold issue into any voir dire on voluntariness, namely: did the police use the Reid Technique to elicit the statement the Crown seeks to admit into evidence, thereby triggering the proposed special presumption of inadmissibility?”
However, the court was sympathetic to Ordonio’s argument that the trial judge’s assessment was flawed. According to the OCA, the trial judge made two errors: she failed to consider “the cumulative effect or impact of the 13-hour interrogation on the statement’s voluntariness” and incorrectly concluded that Ordonio did not fall asleep during the interview.
The OCA noted that the detective who questioned Ordonio acknowledged that Ordonio had fallen asleep multiple times during the interrogation. Case law dictates that “depriving the person questioned of sleep can create an atmosphere of oppression that leads to false confessions,” the court said.
The court set aside Ordonio’s conviction, ordered a new trial, and remitted the issue of his statement’s admissibility to the judge who will preside at the new trial.
James Lockyer, a partner at Lockyer Zaduk Zeeh who represented Ordonio, told Law Times on Wednesday, “The court of appeal has given us an important reminder that when a case is dependent on a confession that the court has to be very careful to examine all the circumstances the confession occurs.
“False confessions are a well-known cause of wrongful convictions, and the case reminds us how important it is that the voluntariness of a confession be very carefully assessed before it's allowed to be admitted into evidence,” he adds.
Frank Addario of Addario Law Group, who represented the CLA, said in an email Wednesday that a body of social science evidence shows that the Reid Technique “leads to false or unreliable confessions.”
Noting that the Reid Technique is banned in several countries, including the UK, New Zealand, and Australia, Addario said that the OCA decision highlights “the flaws of the technique, which will be helpful to trial judges.”
However, he said, “The police respond to the incentives that judicial decisions create. So long as there is no common law or statutory prohibition, the Reid Technique is a tool the police will use.”
Lockyer says that while the OCA did not go so far as to say that the Reid Technique “would automatically lead to a presumption that [a] confession was involuntary, it’s still clear from the judgment that the use of a technique like that is going to be an important factor in weighing whether or not the confession was voluntary.”
A spokesperson for Ontario’s Ministry of the Attorney General declined to comment.
