Evidence gained by use of Reid technique excluded   > > > 2 R. v. Minde, 2003 ABQB 797 Date: 2003 09 19 Action No. 02004 3436Q1 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF WETASKIWIN BETWEEN: HER MAJESTY THE QUEEN - and - MITCHELL BEAUDRY MINDE Accused _______VOIR DIRE RULING of the HONOURABLE MADAM JUSTICE M.T. MOREAU _______________________________________________________ APPEARANCES: J. Ian Fraser for the Crown David R. Cunningham for the Accused I. INTRODUCTION [1] The accused, Mitchell Beaudry Minde, is charged with manslaughter and, in a second count, aggravated assault, in the death on January 4, 2002 of Cheryl Lynn Currie. A voir dire was held to determine the admissibility of a video-taped statement made by the accused to police on January 10, 2002, an apology letter written by him immediately thereafter, and a video-taped re-enactment in which he participated that same evening. Page: 2 [2] It is the position of the accused that the Crown has failed to prove the voluntariness of these admissions beyond a reasonable doubt. He submits that they were induced by implied threats or inducements that his confession would result in less serious legal consequences for him. He also submits that the circumstances were oppressive having regard to persistent and manipulative questioning and deceitful suggestions by skilled investigators. [3] It was agreed by counsel that the voir dire on voluntariness could be blended with a voir dire alleging that the accused's Charter rights had been violated, specifically, his right to silence protected by s. 7, his right to be free from arbitrary detention protected by s. 9, and his right to be advised of the informational and implementational components of ss. 10(a) and (b). The s. 7 grounds alleged were conceded by counsel to be effectively those argued in the context of voluntariness. In respect of s. 9, it was alleged that the grounds for the accused's arrest were tenuous at best and that his subsequent detention was for the sole purpose of eliciting a statement from him. As to s. 10, it is alleged that the accused was not informed in a timely manner of the charge he faced, that the Charter warning was inadequate and confusing and that the police continued to interrogate the accused after he expressed his desire to remain silent. II. THE LAW [4] To place the evidence and arguments into their legal context, it is a well established common-law principle that to be admissible, a statement made by the accused to a person in authority must be shown by the Crown to have been voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage exercised or held out to the accused: Ibrahim v. The King, [1914] A.C. 599, at pp. 609-10, adopted in Canada in R. v. Rothman, [1981] 1 S.C.R. 640. [5] In reviewing the circumstances in which the various admissions were made in the present case, I am mindful of the comments of Laycraft J.A. (as he then was) in R. v. Sawchyn (1981), 60 C.C.C. (2d) 200 (leave to appeal refused [1981] 2 S.C.R. xi). In that case, the Court was urged to conclude that regardless of the source of the accused's motivation, a statement made with the hope that he will obtain an early release is not one made of his own "free will". Laycraft J.A. said this in response (at p. 206): Presumably, every time a person accused of crime makes a statement he has some motivation. The innocent person or the one with minimal connection to the event may seek to establish that. The guilty person may respond to the urgings of conscience or the hope of leniency... To say, however, that a statement is inadmissible whenever an accused person has convinced himself that he will derive advantage from speaking is to render most statements inadmissible. In my view the recent analysis of the authorities by Martland J. speaking for the majority of the court in Rothman v. R. (1981), 20 C.R. (3d) 97...makes it clear that no such profound change has occurred in the law of Canada. Page: 3 [6] The entire context of the confession must be carefully scrutinized to determine if there is a reasonable doubt that the confession was involuntary: R. v. Oickle, [2000] 2 S.C.R. 3 In that case, Iacobucci J., writing for the majority, reviewed the various forms of persuasion that may be used to elicit statements from suspects, noting, at para. 56 that the use of moral or spiritual inducements will generally not produce an involuntary confession for the simple reason that the interrogator has no control over the suggested benefit; he has not offered anything in the sense of a quid pro quo. His Lordship noted at para. 57: ... courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. [7] As pointed out by Iaccobucci J., a self-generated hope is irrelevant as it will not have been obtained by anything said or done by a person in authority. More commonly, the presence of such a hope will, in part at least originate in something said or done by the person in authority. His Lordship concluded (at para. 57): The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. [8] In the present case, as in Oickle, supra, it was alleged that the officers abused the accused's trust to obtain a confession. Iacobucci J. commented as follows (at para. 85) on the Court of Appeal's criticism of the style of interrogation used: In essence, the court criticizes the police for questioning the respondent in such a gentle, reassuring manner that they gained his trust. This does not render a confession inadmissible. To hold otherwise would send the perverse message to police that they should engage in adversarial, aggressive questioning to ensure they never gain the suspect's trust, lest an ensuing confession be excluded. Turning, however, to the use of deceit to obtain admissions, Iacobucci J. said this (at para. 43): Presenting a suspect with entirely fabricated evidence has the potential either to persuade the susceptible suspect that he did indeed commit the crime, or at least to convince the suspect that any protestations of innocence are futile. Page: 4 [9] In this case, the issue of voluntariness centres on whether the conduct of the officers and their use of deceit created a real risk that the accused's confession was based on "fear of prejudice or hope of advantage" per Ibrahim, supra, in the sense of the officers having dangled the prospect of the accused being treated more harshly in court in the event he remained silent, or being treated more leniently if he talked. [10] However, Iacobucci J. noted in Oickle, supra (at para. 54) that phrases like "it would be better if you told the truth" should not automatically require exclusion: Instead, as in all cases, the trial judge must examine the entire context of the confession, and ask whether there is a reasonable doubt that the resulting confession was involuntary. [11] He went on to discuss circumstances of oppression, which, he pointed out at para. 58, clearly have the potential to produce false confessions. He included within these circumstances conduct that could overbear the subject's will to the point that the subject comes to doubt his or her own memory. He provided examples of factors that can create an atmosphere of oppression (at para. 60): ... depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time. [12] These are familiar factors of oppression that clearly give rise to concern. In this case, we are concerned with more subtle factors. Although not central to my determination on the issue of oppression but aggravating features nonetheless, neither food, refreshment or health breaks were offered for a number of hours; the withholding of these basics simply because not asked for by the accused is not, in my view, a full answer. I find that this particular suspect was very passive, for the most part unresponsive, and repeatedly sought permission to leave even when he was told he was free to go; in the case of this type of individual, justification for depriving him over an extended period of sustenance in the intimidating environment of a closed interview room in a police detachment cannot simply be excused away on the basis that these basics were not being requested. [13] Another possible source of oppressive circumstances may be found in police use of nonexistent evidence, a ploy Iacobucci J. described as "very dangerous", at para. 61: The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement. However, when combined with other factors, it is certainly a relevant consideration in determining on a voir dire whether a confession was voluntary. Page: 5 [14] Turning to the operating mind aspect of the confessions rule, Iacobucci J., at para. 63, referred to the test elaborated in R. v. Whittle, [1994] 2 S.C.R. 914: ... the operating mind requirement "does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment"... [15] In addressing the Charter aspect of the voir dire relating to the admissibility of the accused's statements to police, Sopinka J. in Whittle supra noted, at para. 29-30, that although each Charter right is distinct, they are interrelated and operate together to provide not only a standard of reliability with respect to evidence obtained from detained persons but fairness in the investigatory process. A common element of the confessions rule, the right to silence and the right to counsel is that the suspect has the right to make a choice: The preoccupation of the common law and Charter cases in preserving for the suspect the right to choose has been in relation to state action. Did the action of police authorities deprive the suspect of making an effective choice by reason of coercion, trickery or misinformation or the lack of information? [16] In the present case, the accused was given two separate opportunities to consult with counsel during the course of the videotaped police interview. That fact, however, does not end the inquiry into voluntariness or his Charter rights. As pointed out by McLachlin J. (as she then was), writing for the majority in R. v. Hébert, [1990] 2 S.C.R. 151 in her discussion of the right to silence embodied in s. 7 of the Charter, at para. 69: The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But this established, the focus under the Charter shifts to the conduct of the authorities vis-a-vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to authorities or not? [17] In R. v. Millar, [2003] A.J. No. 635, Watson J. noted (at para. 13) that the voluntariness standard does not require a context of detention as a key feature of the jural relationship between the subject and state agents. Voluntariness is therefore not proven by police compliance with the duties to provide the advisements and reasonable opportunity contemplated by the s. 10(b) jurisprudence nor is it automatically disproven by failure to comply with those requirements. Nor is the mere fact of compliance by police with their s. 10(b) obligations decisive on the question of whether the detainee's right to silence was overborne or his ability to choose to speak or not was taken from him (para. 18). III. MINDE'S CONTACT WITH POLICE FROM JANUARY 4 - 9, 2002 [18] Having outlined the relevant legal principles, I will next review the circumstances of the accused's contacts with police authorities leading to his videotaped statement of January 10, 2002 made to Corporal MacLean and Constable McCullum. [19] Corporal MacLean first met the accused when he sat in on an audio-taped interview conducted by Constable Lowe at the Hobbema detachment on January 4, 2002. Corporal MacLean is an officer of some 20 years experience, has been associated with the Major Crimes Unit in Calgary for the previous four years, has instructed cadets and has received training in forensic interviewing. He had been advised coming into the January 4th interview that Minde had been involved in a relationship with the deceased, Cheryl Currie, that Minde had taken her to hospital on the morning of January 3rd and that Ms. Currie had indicated to hospital staff members that she had been beaten by a number of girls or women. I accept his testimony that, at the opening of the January 4th interview, he was treating Minde as a witness. No voluntariness or Charter issues were raised by defence regarding the approx. 11/2 hour police interview which ensued. No caution or Charter warning was administered. However, I am satisfied beyond a reasonable doubt that Minde's January 4th statement was voluntary and the product of an operating mind. [20] Minde related that he had been drinking at his place with nephews and a couple of their friends starting at about 1:00 p.m. on January 2, 2002. He recalled going into town 3 times that day, and that Ms. Currie accompanied him on at least the last of those trips, at close to 1:00 a.m., along with their young daughter Chelsea. He did not notice Ms. Currie involved in any disagreement with others present at his house that day. [21] He stated that he proceeded to bed after he arrived home from the last trip to town. Ms. Currie woke him up at around 7:00 a.m. on January 3 wanting to go to hospital "[a]nd all she told me was that she got jumped by some girls". He stated that he thought she had said something about a miscarriage. He took her immediately to hospital. The last time he saw her alive was on his return to the hospital later that day. She died in hospital on January 4th. [22] I find that Minde was merely speculating as to the location where the women may have jumped on Ms. Currie, when he stated in the January 4th interview that it "must have" occurred during his last trip to town to fetch beer as he recalled leaving Ms. Currie and Chelsea in the truck while purchasing the beer. It was only on the way back to his residence that she was swearing, referring to "f'ing bitches and stuff". He stated that at the time he did not know what she was talking about; she had not complained when he returned to the truck after picking up the beer at the Leland Hotel, nor had he seen anybody around the truck at that time. [23] Corporal MacLean understood from the interview of January 4th that Minde had been drinking throughout the day on January 2; he had described himself as being drunk. Page: 7 [24] Minde referred to an earlier assault upon him by Ms. Currie that he had reported to police a few years earlier and more recently, to her having damaged his van. He denied that he was seeing anyone else socially. [25] When asked by Constable Lowe if he was responsible for Ms. Currie's injuries, he shook his head; his recorded response was inaudible. Near the end of the interview, Constable Lowe stated: Because we don't know what Cheryl's like and I guess that's what we have to hear from you what you can tell, like why, why someone might say, you Mick are, are the person we should be looking at and why we shouldn't be looking at you. So we can focus our energy somewhere who we should be looking at. [26] Corporal MacLean testified that Minde's status in his mind was still that of a "witness" at the conclusion of the January 4, 2002 interview. Having regard to the referenced comment of Constable Lowe near the end of the interview, and the fact that his questioning had established that Ms. Currie was at Minde's residence when he went to bed in the early morning hours of January 3 and when she woke him up hours later, I do not accept Corporal MacLean's testimony that at the conclusion of the January 3rd interview, he considered Minde to be anything other than an actual suspect. [27] Arrangements were then made, with Minde's cooperation, for police to look through his residence and van the following day and to trace the route he had followed to and from town to fetch beer. [28] While Corporal Maclean acknowledged under cross-examination that he could not exclude the possibility that after Minde went to bed, others came to the residence or that Ms. Currie went elsewhere, he noted the timing of Ms. Currie's complaint of injury from Minde's January 4th statement: Q. So before 7 o'clock yesterday morning, did Cheryl ever complain of being injured or complain of this stomach problem she was obviously having? Had she complained of that before? A. I kind of distinctly remember something before I went to sleep. Q. During the night? A. Yeah. Q. What, do you remember what was said? A. Uh, the t.v. was on and I think that she said that she wanted to go in maybe and I might have to take her in. Q. The hospital you mean? A. yeah. Q. Yeah. A. I drifted off to sleep. Page: 8 [29] Minde had been advised at the January 4th interview that the autopsy would be conducted on January 7th. On January 9th, 2002, Minde telephoned MacLean inquiring whether the autopsy had indicated if Ms. Currie was pregnant when she died. MacLean did not give him any information, but responded that if he attended at the Ponoka detachment, he would be given the results and that there had been developments in the case he wanted to discuss. Corporal MacLean testified that by this time, in his mind, Minde's status had changed from that of witness to suspect and that is what prompted him to set up the meeting. He explained that from January 5th through 9th, he had been unable to validate claims made by Ms. Currie before her death that she had been beaten up by some girls. He had spoken to another woman mentioned by Minde in his statement of January 4 alleged to have suffered a similar attack some time before and had determined that she had not been attacked in that manner. Also, he believed that Minde was the only one who had been with Ms. Currie from 1:00 a.m. January 3 to when he dropped her off at the hospital. He also knew from the autopsy results that Ms. Currie's death had resulted from a blunt force abdominal injury. He had knowledge of what he referred to as "previous activities between the deceased and Currie and hers against him" although he did not elaborate on these. However, he understood from the January 4th interview that Minde was sleeping at his residence between 1:30 a.m. and 7:00 a.m. on January 3rd and that the deceased was "awake and doing whatever". He also knew that Minde had taken her to hospital in the morning and that Ms. Currie had continued to assert to various people before her death that some girls were responsible for her injuries. [30] Constable McCullum was the officer who actually arrested Minde on January 10th. He similarly acknowledged that prior to January 10th, he did not have reasonable and probable grounds to arrest Minde. He had, however, been told that contrary to Minde's earlier interview responses, he had been involved sexually with another woman, that according to Minde himself, when he went to bed on the night in question, there were only himself, Ms. Currie and Chelsea in the residence and that just prior to falling asleep Ms. Currie had reported having some pain. He had also formed the opinion that the allegation that Ms. Currie had been beaten by a number of people was unfounded, there being no information known to him to substantiate that claim. He had concluded that the information regarding the beating in Minde's January 4 statement was false but acknowledged under cross examination that he was laying this lie at Minde's feet despite Minde's indication on January 4th that his source of that information had been Ms. Currie herself. He stated that he was aware through briefings that Ms. Currie had been assaulted on a number of occasions by Mr. Minde which he acknowledged were for the most part third or fourth hand reports, although one or two of the assaults may have been witnessed. He acknowledged that he had not performed any computer searches on whether Ms. Currie was a perpetrator of at least one assault on Minde, which Minde had said he had reported to police and could therefore have been verified. He was aware from the autopsy report that her injuries could have been caused (in his words) by "any number of things". Const. McCullum further referred to information he had received from Darryl Strongman, Minde's brother, who had asked Minde whether he had killed Ms. Currie, to which Minde was said to have responded "I don't know". McCullum thought this to be significant as it was not a denial. When asked under cross- Page: 9 examination whether he had given any weight to Ms. Currie's own assertions to various people that she had been jumped by some girls, he responded "it was quite the opposite". [31] Having considered the subjective aspects of reasonable and probable grounds from the perspective of two experienced officers, and considering their grounds from the perspective of the reasonable person in the position of the officers, fully apprised of the circumstances, I find that the information they had gathered before the January 10th interview fell considerably short of establishing reasonable and probable grounds for Minde's arrest. The only information that clearly contradicted Minde's January 4th statement was information they received that he was involved with a woman other than Ms. Currie, which he was not confronted with between January 4th and January 10th. They did not elaborate on the information they had on previous assaults alleged to have been committed on Ms. Currie by Minde, had not checked out his complaints about her past attacks on him or his property, and Ms. Currie had consistently pointed away from Minde as the perpetrator before her death. IV. THE VIDEO-TAPED STATEMENT TO POLICE [32] Turning next to the January 10th interview, the so-called Reid Technique of police interrogation of suspects and detainees was the subject of considerable defence questioning. No evidence was before me beyond the testimony of the two officers who interviewed Minde as to their own knowledge of the technique, one of whom, Constable McCullum, had specific training in the technique while Corporal MacLean, although not schooled in the technique, was familiar with it. Given this, I do not intend to comment on the merits or dangers of the Reid technique per se. However, certain themes used repeatedly by the officers in their January 10th interview of Minde were specifically acknowledged by Corporal MacLean to form part of the Reid Technique and bear directly on my consideration of voluntariness, circumstances of oppression and the right to silence: 1. "Direct positive confrontation": where there is no tangible evidence, pretence is used to suggest to the suspect that as a result of conducting extensive inquiries, the suspect in fact committed the crime. In this case, this took the form of stating unequivocally to Minde, after he indicated he wished to leave the interview, that Corporal MacLean was convinced Minde caused Ms. Currie's injuries. Constable McCullum confirmed that the purpose of this confrontation was to dissuade Minde from leaving. 2. A deceit that is active throughout the interview. In this case, the deceit, which had been worked out between Corporal MacLean and Constable McCullum in a briefing session before the January 10th interview, took the form of the deceased having "told the truth" to hospital staff and others before she died. 3. Convincing the subject to tell the truth, without any obvious promise, which may involve discussing his redeeming qualities and the use of praise and flattery to persuade him to Page: 10 explain his side of the story, a technique frequently used throughout the January 10th interview. 4. Displaying understanding and sympathy, suggesting themes to minimize the subject's moral responsibility and to supply the subject with excuses to accept moral responsibility. Here it was suggested among other things that Minde was provoked into anger by the actions of the deceased. 5. Minimizing the suspect's act, in the present case by alluding to it being accidental or committed in self-defence, or telling the suspect that anyone else faced with the situation might have committed the same type of offence, so as to suggest a morally acceptable reason for the offence. The scenario is made to appear less damning, thereby making the subjects more willing to explain their actions than if confronted with "all the bad things". Corporal MacLean initially denied under cross-examination that the minimization themes of accident and self-defence presented to Minde, although morally appealing, rendered Minde less culpable. However, after the elements of each of these defences were reviewed in questioning, he acknowledged that accident, for example, a scenario suggested to Minde, would result in no legal culpability. When cross-examined on the risk of obtaining a false confession as a result of the subject simply regurgitating the minimization themes suggested by the interviewer, McCullum acknowledged that Minde "gave back" self-defence suggested to him during the interview, however, it was his experience that a person who had not committed the act would not "give it back". 6. Condemning others in order to ease the responsibility of the suspect, which Corporal MacLean acknowledged was used to a degree here in deflecting to Ms. Currie some responsibility for her injuries. 7. Advising the suspect that the community is thinking really bad things, also evident in the January 10th interview. 8. Trying to convince the suspect that there is no point denying his involvement, which was used "to a small degree", according to Corporal Maclean. 9. Procuring the subject's attention if noting passive signs of withdrawal, by moving physically closer, leaning forward, touching him gently, mentioning his first name, which technique Corporal MacLean acknowledged was used during both his and Constable McCullum's portions of the interview. 10. Presenting the "alternative question", namely two alternatives, both establishing that the subject perpetrated the act but one being a palatable face-saving alternative. Corporal MacLean would not admit that an example of this technique in the January 10th interview was his question "Did you mean for it to happen or was it an accident?" as there was a third option, namely denial. As noted by defence counsel, this ignored Minde's stated concerns about his memory of the events. Page: 11 11. The use of lengthy monologues. These, Constable McCullun acknowledged, could serve to deflect the subject, and in the present case, I find that monologues were frequent and lengthy and were used to deflect Minde from acting on his desire to leave the interview. 12. Use of an apology letter and follow-up interview or re-enactment to reconfirm the information provided in the incriminating statement, also employed in the present case. [33] It is necessary to review the January 10th statement in some detail to properly address the various grounds for exclusion raised by the defence. [34] Minde arrived at the Ponoka detachment at 2:24 p.m., where he was met by Corporal MacLean then briefly introduced to Constable McCullum in the interview room. McCullum then departed for the interview monitoring room. Throughout the interview, Corporal MacLean, and after him, Constable McCullum, spoke in calm, quiet and soothing tones; at no time did their demeanor become aggressive or confrontational. [35] Corporal MacLean advised Minde that he was a suspect in the death of Ms. Currie. He did not read a formal s. 10(b) warning at that time, nor was he required to as Minde was not at that point detained. Nonetheless, Corporal MacLean embarked on an improvised version of the right to counsel, first drawing an analogy to permits and licences being required for some activities but not for talking to police, followed by a discussion of Duty Counsel and Legal Aid which at times confused the two concepts. However, he did caution Minde that anything he said could be used in evidence against him. He told Minde that he was not being detained, the door to the interview room was not locked, that he could open it and leave anytime he wanted. However, once having embarked on an informal explanation of Minde's s. 10(b) Charter rights, he did not then ask him if he wished to speak to duty counsel, the implementational aspect of s. 10(b). [36] Corporal MacLean stated under cross-examination that he did not ask this last question from the standard s. 10(b) warning, as he was not required to do so, Minde then only being a suspect. I am not of the view, given, as will be elaborated upon further, that Minde consulted with counsel on two separate occasions later in the interview, that a breach of his s. 10(b) Charter rights has been made out here by the officers' failure to read the standard s. 10(b) warning. Nor are the police prohibited from questioning suspects in the absence of counsel after the accused has retained counsel: R. v. Hébert, supra, at para.73. [37] Corporal MacLean advised Minde that their conversation was being videotaped. After asking some questions about his background to establish rapport, he again indicated to Minde that if he wanted to call a lawyer or consult with duty counsel or legal aid, to let him know. He added: "If there's anytime you want to go, let me know. You understand that do you?" Page: 12 Minde responded: A. Actually, I (inaudible) do my business at the Band Office. Q. Okay. A. So maybe I think I would like to try and do that today. I find that Corporal MacLean then attempted to deflect Minde: Q. Do you think it's important to find out why you're a suspect? A. Ahh, yeah, yeah but what I really want to find out actually was if she was pregnant or not. Another deflecting question followed: Q. Umm hmm. What do you think about being a suspect. Is that any surprise to you? A. Yeah, it's kinda (inaudible). I don't know...a burden. [38] I find it to be unclear whether Minde was referring to whether Ms. Currie being pregnant or not was "a burden" or being told he was a suspect. Minde at times in the interview is seen to be responding to a previous question after the officer has moved on to the next one. In any event, Minde offered to return the next day. Corporal MacLean, using a theme from the Reid technique, then commented about people being left to their own imaginations if they do not have an understanding of what happened. This was followed by a lengthy monologue in which the deceit that Ms. Curry "told the truth" was first introduced, whose purposes, I find, were to deflect Minde from leaving and to provoke a response by him: Q. So the story that Cheryl told (clears throat) and the story that you told about her being attacked by the five people isn't the case. Prior to passing away in Red Deer and she knew she was, she knew she was sick and she felt she was dying Cheryl told the truth (period of silence). Okay? Cheryl told the truth about what happened and we were able to speak to those people that Cheryl spoke to. We just finished talking to them. Cheryl had an autopsy as you know, results of that auto, autopsy showed she died from blunt force trauma. Do you know what blunt force trauma is? A. I've heard about it. Q. Kay, that's force caused to a person, to a body by an object such as a fist, or a foot, a knee, or an elbow, okay. The autopsy also indicated there wasn't multiple attackers. All right? ... ...Cheryl told the truth about what happened. [emphasis added] Page: 13 Minde responded: A. Can we finish going over this? Q. Now? A. Umm, ... Q. Let's finish now. A. Later. I'd like to go and there's many important things I need to do at my band office regarding Chelsea. Q. (inaudible) A. (inaudible) Band Office (inaudible). Q. Well you're free to leave at anytime like I told you. A. Kay, that's what I'm gonna be doing and I need to do this and I'll contact you later tonight and maybe I'll finish this later tonight. Q. Sure, when will you be back? A. (inaudible), well, I have to clean up my clothes and clean up the house so all the guys can move in, other odds and ends. Q. Umm hmm. A. In the morning maybe? Q. Well, it's however important you think it is in your life. A. It's really important. Q. Umm hmm. Are you gonna come back or you gonna run? A. I'll come back. Q. Kay. A. I need to go thoroughly through this. [39] One of his reasons for leaving explained by Minde was his concern about Chelsea coming into the care of the deceased's sister, his family members having indicated to him that they would help him. Corporal MacLean reiterated the importance of the investigation, then deflected Minde again: Q. Okay, umm, like I said, we know what happened, it, we want to know how it happened, why. I have a couple of theories as to why it may of happened and maybe you can help establish that. A. I will search my soul and my brain. [40] After more discussion in which Corporal MacLean reiterated that Minde was not under arrest and not detained, Minde got up to leave, whereupon Corporal MacLean said: "Just one second there" and left the interview room, closing the door behind him. [41] Corporal MacLean testified that outside the interview room, he and Const. McCullum discussed alternatives to keep Minde there. He acknowledged that a decision was made to confront him, another recognizable feature of the Reid technique. On his return to the interview Page: 14 room, Corporal MacLean declared that there was no doubt whatsoever in his mind that Minde was responsible for the injuries that caused Ms. Currie's death. He also disclosed that Ms. Currie was not pregnant according to the autopsy results, information Minde had been seeking in attending the interview. He then pursued what he had identified as a Reid theme of condemnation, advising Minde that their investigations had revealed Ms. Currie to be a manipulator, that she wanted to do anything to keep him with her, that she was willing to stop at nothing. Corporal MacLean referred to her prior assault on Minde at the Band Office, to her excessive drinking and to her not allowing Minde to break free. Next, he praised Minde, describing him as a "good person" and, minimizing his role, he told Minde that what he had was a burst of anger; "that's all it was and when you settled down, you did the right thing. You took Cheryl to the hospital...". Minde continued to ask to leave so he could go about his business. Again he was deflected with a question which I find was clearly designed to provoke an admission: Q. Did you mean for it to happen or was it an accident? A. Could I go do my business and come back? Q. Did you mean for it to happen or was it an accident? A. I don't know what to say...so could I arrange? Q. It's ok. (inaudible) Mitch. If it was an accident, it's understandable. It's understandable... A. Could I first go do this before I run outta time and then we'll continue? Q. We have to finish this. A. So could I ...ahh, leave for awhile? Q. Why do you want to leave? A. Cause I want to go do this. Q. Mitch you have to deal with Cheryl. A. Yeah, we, we are going to. Q. We have to deal with her now. What would Cheryl think? A. (inaudible - talking at the same time)... Q. Cheryl think? A. (No verbal response) Q. Cheryl think? A. (no verbal response) Q. What would Cheryl think? A. (no verbal response) Q. You left dealing with her death to go and move? A. I dunno. Q. It's not like a move couldn't be done tomorrow. A. (no verbal response) Q. Okay? A. (no verbal response) Q. It's not like any of this business can't be done another day. Cheryl died... A. It would be better if I could do this as soon as possible though. Q. I think it's important to deal with this as soon as possible. Page: 15 A. Sure we could do that, just a little later. Q. Well, (inaudible - coughing in background) ... A. So could I just go to this? Q. (inaudible - talking at the same time) ... if we do this and we deal with it Mitch...you're running, you're running from the truth. You realize that? A. (period of silence) Could I go do the business first and then come back? Q. Why you're here now? A. Well the Band Office closes and I need money and stuff. Q. The Band Office will be there, Band Office isn't going anywhere. A. I know but I need the money now, I don't have any in my bank account. Q. Umm hmm, how long have you been without money? A. A couple of days. Q. Umm hmm. A. So could I go do this? Q. I think you're running from the truth Mitch? A. Well could I? Q. (no verbal response) A. And then I'll come back. Q. Why don't you deal with what we're dealing with right now? A. I should've did that business but I didn't have a ride over here. Q. Umm hmm, all I'm saying is why don't you deal with what we're dealing with now? A. We could finish dealing with it just as soon as I do this other stuff. So could I go do that? Q. Mitch, we've gone through why you're responsible. A. (inaudible - talking at the same time) ... could I? Q. ... why you're responsible... A. Yeah, could I, I just wanna go do that ahh, the thing because I want to, I wanted to go and make sure I have money and stuff and then I could come back. Q. I think you're gonna run Mitch. A. No, no I (inaudible) (coughing in the background) could I? [42] Recalling that Minde's expression of his desire to leave arose from Corporal MacLean's own offer that he could do so at any time, I find that Corporal MacLean was simply paying lip service to that offer, having regard to the various themes he deployed thereafter to prevent Minde from leaving. Flight was not raised by Corporal MacLean as a concern in his testimony although Constable McCullum alluded to it. However both officers were aware that Minde had been fully cooperating in the police investigation, up to that point. [43] Minde having risen to leave, Constable McCullum, who had been observing the interview throughout, stepped in at that point and placed Minde under arrest, in his words, "for Cheryl's death". Although neither officer read a caution or his Charter rights to him, he was asked whether he wanted to speak to a lawyer and when he stated that he did, he was escorted from the Page: 16 interview room at approximately 3:34 p.m. and placed in the telephone room. I find that he was thereafter in contact with counsel, having on his return to the interview room at 3:57 p.m. provided the name and phone number of his now trial counsel to Corporal MacLean. [44] At this point, Corporal MacLean immediately launched on familiar themes from the earlier portion of the interview, among them, that the situation was one that "has to be dealt with", "your own people will be left with their own ideas as to why this happened", "everyone loses their cool, it can happen to anyone". The fact that Minde had received legal advice not to say anything is evident from the ensuing exchange: Q. So Mitch, I don't think you meant for her to die. Did ya? A. Are we still being taped and do you have a tape recorder, cause could you turn that off. Q. Well I can't. A. Cause I'm not supposed to say anything. Q. Okay, that's your choice, that's a decision only you can make and I have no issue with that but the tape will run because I think it's important that it reflects what I have said and you have said. I think it's important that the story that you have to tell is told though I think it's important that we have an understanding of what happened. Was this just a matter of, of your losing your cool? A. (no verbal response) [45] Corporal MacLean acknowledged that he was again attempting to deflect Minde from not talking. He proceeded to put a number of minimizing scenarios to Minde in rapid sequence, where even a "no" answer might be interpreted as an acknowledgement of having caused Ms. Currie's injuries: Q. Did it just happen like in the blink of an eye? A. (no verbal response) Q. In combination with some alcohol and a whole set of bad circumstances? A. (no verbal response) Q. Everyone had been drinking, everyone had been having a party, an argument maybe started, maybe she told you that night she was pregnant. A. I have no recollection. ... Q. I mean you were angry at the time, you were angry at the time that it happened or else it wouldn't of happened. Right? A. (no verbal response) Q. It wouldn't of happened that way, once you were able to calm down, everything settled down, you, you certainly did a, did all the right things. A. I was gonna go under hypnosis. [emphasis added] > > > 2

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