COURT FILE NO.: CR-17-735

DATE: 20190321

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Alex Cornelius and Paul Renwick, for the Crown

• and -

JUSTINE ORDONIO

Peter Zaduk, Daisy McCabe-Lokos, and Cate Martell for the Accused, Justine Ordonio

HEARD: November 27, 28, 29, December 3, 4, 5, 2018

PUBLICATION BAN

Pursuant to s. 648(1) of the Criminal Code, no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

REASONS FOR CHARTER and VOLUNTARINESS RULINGS

BALTMAN J.

Introduction

[1] On April 8, 2015, Teresa Hsin went missing after she attended her nearby Scotiabank branch in Mississauga. Two days later, she was found dead in her car in the parking lot adjacent to the bank. She had been stabbed multiple times and died from wounds in the head, arm, shoulder and upper body. The evidence suggests the assailant was hidden in the back seat of her car, a four-door BMW.

[2] Three men have since been charged with first degree murder. Police allege that the murder was planned and orchestrated by Ms. Hsin’s son, Eric Lu. Hsin owned a number of spas, all named “Relaxology”, and Lu worked with her in running the spas. Police maintain that Lu employed the accused, Justine Ordonio, to carry out a previous almost fatal assault on Hsin in mid-November 2014, and when that failed, arranged for him to be concealed in the back seat of her car on this occasion. They further allege that Ordonio, in turn, contracted Mark Dookhram to drive the getaway car on April 8, 2015.

[3] Lu has consistently denied any involvement in his mother’s murder. Police linked Ordonio to the crime through a combination of photographic and video evidence, cellphone records, and a lengthy statement from Dookhram. In this statement, Dookhram revealed that he was recruited as the getaway driver, used an Audi vehicle, and that Ordonio entered the Audi in bloody clothing, carrying a knife.

[4] Following his arrest on November 10, 2015, Ordonio was transported to the Peel Homicide Bureau, where he was interviewed for over 12 hours by Detective Mark Heyes. He eventually admitted some partial involvement in the offence but denied killing Hsin.

[5] This application deals with the admissibility of Ordonio’s post-arrest statement. Ordonio argues that his rights under both ss. 7 and 10(b) of the Charter were violated. However, much of the focus of this hearing was on the alleged failure of the Crown to prove the voluntariness of his statement beyond a reasonable doubt.

[6] The defence did not call any evidence on the voir dire. The Crown concedes that absent this statement, there is insufficient remaining evidence to proceed to trial against Ordonio. Following the preliminary inquiry on this matter, the presiding judge determined, in lengthy and detailed reasons, that the statement was not given voluntarily.

[7] As I explain below, both the length of the interview and certain interactions between the two men raise concerns about voluntariness. Those factors have caused me to review the complete interview with great care. The interview is audio and video recorded. I have reviewed it carefully in its entirety and watched the pivotal portions repeatedly. I have also examined the transcript in detail.

[8] On January 7, 2019, I issued a ruling dismissing the Charter application and admitting the statement as voluntary, with reasons to follow. My reasons[^1] are set out below.

[9] These reasons contain numerous extracts from Ordonio’s interactions with the police. Unless otherwise indicated, all page references are to the transcript of the November 10th interview with Heyes. Throughout, any bolding has been added by me, for emphasis.

Pre-arrest History

[10] When this crime occurred, Ordonio was 25 years old and had no criminal record. He was first interviewed by the police, voluntarily, on July 10, 2015. That interview was conducted at 14 Division of the Toronto Police Services by Officers Wilson and Allen, and was video and audiotaped.

[11] At that point, the only link the police had connecting Ordonio to the crime were some phone records showing calls between him and Lu on April 8, 2015, the day of the murder. Despite some fairly aggressive questioning, Ordonio denied any involvement in the crime and refused to provide the requested DNA sample. After 45 minutes of getting nowhere, police ceded to his request to be driven back home.

The Arrest and the Alleged Violations of ss. 7 & 10(b) of the Charter

[12] After further investigation, and in particular a statement given by Dookhram on October 8, 2015 in which he implicated Ordonio, officers Allen and Wilson arranged to meet Ordonio outside of his home in Toronto on November 10, 2015. When he exited his house, he was told he was under arrest for first degree murder. After he was placed in the police cruiser, the following exchange took place:

Allen: …you’re arrested for first-degree murder, you understand?

Ordonio: No I, I understand.

Allen: Yes? It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?

Ordonio: Yes.

Allen: …You have the right to telephone any lawyer you wish, you understand?

Ordonio: Yes.

Allen: You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence you apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with a Legal Aid Duty Counsel lawyer for free legal advice right now. Do you understand?

Ordonio: Yes.

Allen: Do you wish to call a lawyer when we get back to 180 Derry Road?

Ordonio: Uh, I don’t have a lawyer, but I would like to get one.

Allen: You can call Duty Counsel.

Ordonio: Okay.

Allen: So yes you would like to call…

Ordonio: Yes.

Allen: …Duty Counsel? If you are charged with-, will be charged with first degree murder. Do you wish to say anything in answer in-, to answer to the charge? You’re not obligated to say anything unless you wish to do so, but whatever you may say may be given into evidence. Do you understand that?

Ordonio: Yes I understand.

[13] The two officers and Ordonio left the area at 12:40 p.m. While en route to the Homicide Bureau, Wilson asked Ordonio if the police made “a mistake” in arresting him. Ordonio responded by denying any responsibility for the crime. The Crown concedes that by failing to hold off questioning until Ordonio spoke to counsel, the police breached s. 10(b) of the Charter. I will discuss this further below.

[14] When the officers arrived at 180 Derry Road (the homicide bureau), Ordonio was installed directly into an interview room, without any prior encounter with a booking Seargent.

[15] At 1:35 p.m., Detective Heyes entered the interview room. After introducing himself and advising Ordonio the interview room was both audio and video taped, he ensured that Ordonio was aware that he had been arrested for first degree murder. He then asked Ordonio whether the arresting officers had advised him of his rights. When Ordonio confirmed that they had, but he did not recall what they said, Heyes told him (at 1:39 p.m.) that the arrest for first degree murder meant that he could not leave but he had the right to speak to a lawyer.

[16] After Ordonio confirmed that he wanted to speak with duty counsel, Heyes told him that under the law he was not required to speak to Heyes, and that he (Heyes) could be “subpoenaed by any court in the country to account what-, what takes place here in the room today between you and I.” Ordonio responded that he understood that but wanted Heyes to produce a police badge confirming his identity.

[17] At 1:43 p.m. Heyes told Ordonio that he should not allow anything said to other officers to affect what he might say to Heyes. At 1:45, Heyes told Ordonio he would put him in contact with a lawyer. Ordonio was offered a drink and use of the bathroom, both of which he accepted. Heyes then produced photo identification to Ordonio, which appeared to satisfy him. When Ordonio then asked whether he was being arrested but not charged with first degree murder, Heyes advised that as a result of their investigation they had enough evidence to arrest and hold him for first degree murder and the charges would “fall later”, i.e. in court “tomorrow”.

[18] Ordonio spoke with a lawyer from 2:06 until 2:13 p.m. After Heyes re-entered the room, Ordonio asked to use the washroom again and added “then I have a couple more questions”. When he returned from the bathroom a few minutes later, Heyes asked him; “…All good”? Ordonio responded by saying “Everything’s all good”. The interview then proceeded.

Alleged breaches of s. 7

[19] The accused’s challenge under s. 7 is threefold: police misled him regarding his right to silence; they failed to properly caution him about the consequences of giving a statement; and they failed to fully convey his jeopardy to him. As those arguments overlap substantially, I will deal with them together.

[20] In my view, all of those claims must fail. Immediately after encountering him, Allen clearly relayed to Ordonio that he was under arrest for first degree murder, had the right to consult counsel and that anything he said “may be given into evidence”. Not only do her words track exactly the language approved by the Supreme Court in R. v. Singh, 2007 SCC 48, at para. 31., Ordonio confirmed he understood her.

[21] Any doubt about that is erased early in his encounter with Heyes, where Ordonio acknowledges he has been arrested for first degree murder and was given his rights (pp. 7 -8). When he tells Heyes he doesn’t “really” recall what he was told regarding his rights, Heyes takes that as a red flag and advises Ordonio that a) he does not have to speak to Heyes; b) he can speak to a lawyer if he wishes, and c) Heyes can be subpoenaed into court to account for what takes place between them (pp. 11-14).

[22] I agree some of the language Heyes used was clumsy and at times included irrelevant information. However, he conveyed the two central points, namely he does not have to talk, but if he does it may come out later in court. Ordonio was given “the requisite information to allow him to make a meaningful choice whether to speak to the police”: R. v. Campbell, 2018 ONCA 837, at para. 8. See also R. v. Sharifpouran, 2017 ONSC 4804, at para. 70.

[23] Importantly, other than unanswered queries during the drive to the police station (which I deal with below), Ordonio spoke to duty counsel before he was asked any questions about the murder of Hsin. At para. 33 of Singh, the Supreme Court observed that if a detainee has exercised his s. 10 Charter right to counsel, he “will presumably have been informed of his right to remain silent”. At para. 46, while addressing the parameters of the right to silence, Charron J. referred to the court’s previous statement in R. v. Hebert 1990 CanLII 118 (SCC), [1990] S.C.J. No. 64 to the effect that where an accused spoke to counsel there is a presumption he was alerted to the right to silence:

There is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. [Emphasis added]

[24] Not only is it reasonable to infer that counsel conveyed the standard advice not to divulge anything to the police, there is no evidence to the contrary from Ordonio, who carries the burden of proof (on the balance of probabilities) on this application. Moreover, there are other indicators Ordonio understood his right to silence:

• At no point during the interview does Ordonio indicate he has concerns or questions about the advice he received from counsel; and

• For the first several hours of the interview Ordonio ignores, deflects or refuses to answer numerous questions regarding his involvement in the murder.

[25] Based on all those factors, I find that Ordonio was well aware of his right to silence.

[26] Finally, given what preceded this arrest, it is illusory to suggest that Ordonio did not understand his jeopardy. Before going into this critical meeting with Heyes on November 10, Ordonio well knew precisely what peril he was in. The first major alert came from the July 10 interview, when Wilson and Allen shared the following:

(i) Police had phone records showing that he spoke with Lu at 8:23 p.m. on April 8th, the day of the murder (p. 13);

(ii) Police knew of text messages between him and Lu before the murder took place (p. 14);

(iii) Police were curious about the nature of his relationship with Lu and what role he may have played in the murder (pp. 15 - 20); and

(iv) Police wanted to know whether Lu had hired him to carry out the murder (p. 27).

[27] Lest he had forgotten any of that, he received a rude refresher that very morning, before his arrest, in a telephone conversation with Lu. According to Ordonio, Lu was “distraught” and warned him that if he “had anything to do with” the murder, he “better have a good lawyer” and should “delete” Lu’s number from his phone (pp. 153-4, 218 & 326). Lu also told him that Dookhram had been arrested the day before (p. 327).

[28] Consequently, Ordonio came to this interview completely aware of the high stakes and his exposure. He was told at the outset that the meeting was being video and audiotaped. He was cautioned that anything he said could later be used in court. Lastly, as I explain below, he used the interview as a means of getting information from the police.

[29] For those reasons I find no violation of s. 7.

Alleged breaches of s. 10(b)

[30] The challenge under s. 10 (b) is fourfold: police did not facilitate counsel immediately; they did not facilitate counsel of choice; they did not ensure that Ordonio was satisfied with the advice he received; and they failed to hold off questioning.

[31] Dealing first with the alleged delay in access to counsel, Ordonio was arrested at 12:30 p.m. While at the scene of his arrest, Wilson advised him of his Charter rights. He was cautioned. He was patted down, handcuffed and placed in a police cruiser. At 12:40 p.m., the police departed the arrest scene with Ordonio. They arrived at the police station at 1:17 p.m.

[32] At 1:19 p.m. Ordonio was place in an interview room. While inside the interview room, he was searched. He was then taken to the washroom, at his request. At 1:35, Heyes entered the interview room. Heyes introduced himself and advised the room was being videotaped. He asked Ordonio if his rights had been explained. When Ordonio said that they had, but he did not recall them, Heyes cautioned him about speaking to the police and told him not to allow any previous contact with the police about Hsin’s murder to influence his decision to provide a statement.

[33] At 1:52, Wilson placed a call to duty counsel. At 2:04 p.m., counsel returned the call. At 2:06 p.m., Ordonio spoke with counsel.

[34] Given the circumstances, I see no delay in the implementation of access to counsel. The jurisprudence stipulates it should occur “at the first reasonably available opportunity”: R. v. Taylor, 2014 SCC 50, at para. 24. Contrary to the submissions of defence counsel that police could have allowed Ordonio to use their cellphone during transport, Taylor also makes it clear that in light of privacy and safety issues, the police are “under no legal duty to provide their own cell phone to a detained individual”: para. 27. In this case that meant the call could not be made until after Ordonio was brought to the police station.

[35] Moreover, any “delay” that ensued at the station arose from steps taken by Heyes to ensure Ordonio appreciated the jeopardy he was in. Logically, that should precede the phone call to counsel. That is particularly so here, given Ordonio’s indication that he did not recall what the officers had told him about his rights. For the phone call to counsel to be meaningful it was necessary for Heyes to first clarify why Ordonio was there and his exposure.

[36] I turn now to the allegation that Ordonio was denied his counsel of choice. Defence counsel suggests that police improperly “steered” him to duty counsel instead of explaining he had the option to choose a lawyer. The record shows otherwise. During the drive in, Allen told him he had the right to telephone “any lawyer you wish”. After Ordonio indicated he understood, she asked if he wanted to call a lawyer once they arrive at the station. Ordonio responded “I don’t have a lawyer, but I would like to get one.” Allen then offered the option of duty counsel, which Ordonio accepted.

[37] Importantly, after they arrived at the station, Allen clarified whether he wanted duty counsel or some other lawyer in particular:

Allen: …So you want us to call Duty Counsel for you though, right?

Ordonio: Pardon?

Allen: Duty Counsel?

Ordonio: Um, yeah sure.

Allen: Yeah? You don’t have a specific lawyer you want us to call for you?

Ordonio: No…Sorry.

[38] In R. v. Zoghaib, [2005] O.J. No. 5947 (S.C.), aff’d [2006] O.J. No. 1023 (C.A.), Fragomeni J., sitting in an appellate role, found that the trial judge erred in finding a 10(b) violation because the police called duty counsel rather than asking the accused if she wished to call her parents about contacting a specific lawyer: paras. 48-9. Here, Allen went further, by inquiring whether Ordonio wished to contact a particular lawyer. The informational component of the s. 10(b) rights was satisfied.

[39] The third complaint is that police failed to ensure Ordonio was satisfied with the advice he received from duty counsel. Defence counsel notes in particular that a) the phone conversation with duty counsel was only seven minutes long; and b) immediately after his phone conversation with duty counsel, Ordonio advised Heyes that he needed to use the washroom “and then I have a couple more questions.” Counsel argues Heyes should have pursued that when Ordonio returned from the bathroom.

[40] I disagree. In R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37, the Supreme Court stipulated that “unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview”. The court went on to note that “despite the brevity” of Mr. Willier’s conversations with Legal Aid (one lasting three minutes, the other one minute), he gave no indication those consultations were inadequate: para. 42.

[41] Here, after Ordonio spoke with a lawyer, he did not express any dissatisfaction with the information he received. When he returned from the bathroom, Heyes asked “All good?”, to which Ordonio responded “Everything’s all good”. There is no evidence before me whatsoever to suggest that any “questions” Ordonio identified had anything to do with his conversation with counsel. Going forward in the interview there were several points where Ordonio raised questions with Heyes, suggesting he was not shy or hesitant to make inquiries.

[42] The fourth and final complaint is that police failed to hold off questioning before Ordonio had consulted counsel. The Crown concedes this breach, based on Wilson’s questions of Ordonio en route to the station about whether the police made a mistake in arresting him. That leads to the s. 24(2) analysis.

s. 24(2) Analysis

[43] There are two issues here. First, was the statement “obtained in a manner” that infringed s. 10(b)? Second, if so, would its admission bring the administration of justice into disrepute?

[44] The inquiry into whether evidence was obtained in a manner that infringed the Charter requires an examination of the entire chain of events between the accused and the police. The connection between the evidence and the breach may be causal, temporal, and/or contextual, but must not be too tenuous or remote: R. v. Pino, 2016 ONCA 389, at para. 72.

[45] In my view, there was no viable connection between the Charter breach that occurred en route to the police station and the subsequent statement that Ordonio gave to Heyes. In support of that I note the following:

a) The first question was asked by Officer Allen, in the police car. The answer was exculpatory and was never raised in the subsequent police interview;

b) The subsequent statement was given to a different officer (Heyes) than the one who committed the breach (Allen), and in a different location;

c) Nearly an hour and 45 minutes elapsed between Allen’s question and when Heyes began to interview Ordonio about the murder; and

d) In the interim, Ordonio exercised his right to speak to duty counsel.

[46] I find that the breach was temporally and contextually connected only to the arrest and the utterance made by Ordonio while travelling to the police station. There is a clear break between the breach and Ordonio’s subsequent dealings with Heyes and the latter served as a fresh start. I therefore conclude the statement was not obtained in a manner that infringed s. 10(b).

[47] In the alternative, even if the statement was taken in a manner that infringed the Charter, its admission would not bring the administration of justice into disrepute. Applying the three pronged approach set out by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, I acknowledge that Officer Allen’s Charter infringing conduct tilts toward the more serious end of the spectrum. She should have known the question was impermissible. That said, it was a single question and the answer was exculpatory. The question was preceded by a recitation of Ordonio’s Charter rights and primary caution. The impugned statement (to Heyes) was taken after Ordonio was again advised of his Charter rights and told that he did not have to speak to the police. Ordonio spoke to counsel after the breach and before the statement was taken. Overall, this conduct does not display a systemic or repeated pattern of breaching the rights of an accused, militating toward inclusion of the statement.

[48] On the second prong, I am satisfied that the breach had no real impact on Ordonio’s Charter protected interests. The question was brief and fleeting. Ordonio shrugged it off and divulged nothing of consequence. This factor favours inclusion of the statement.

[49] Third, society has a profound interest in adjudication of this case on the merits. Recognizing that the extremely serious nature of this offence “cut[s] both ways” (Grant, para. 84), exclusion of the statement would, as the Crown has noted, prevent the matter from proceeding to trial on its merits.

[50] In sum, when the seriousness of the breach is balanced against its minimal effect on Ordonio’s right to silence and the very high societal interest in adjudicating the matter on its merits, I find the statement should be admitted. Indeed, under these circumstances exclusion of the statement would bring the administration of justice into disrepute.

The Voluntariness of Ordonio’s Statement

[51] I will first provide an overview of the contents of the statement. As detailed above, it began with a caution and some discussion about Ordonio’s rights to counsel. Beyond that, it can be broken down into three parts, as follows:

1. Biographical Discussion;

2. Presentation of Evidence; and

3. Ordonio’s Admissions

Part 1: Biographical Discussion

[52] From approximately 2:14 p.m. to 3:15 p.m., Heyes asked Ordonio numerous questions about his residence, family background, and personal circumstances. Heyes told Ordonio that he would not lie to him, and did not want Ordonio to “play games”. Shortly after Ordonio asked Heyes to “stop beating around the bush and you can just ask me the questions” (p. 42).

[53] The personal conversation nevertheless continued. When Ordonio indicated that he had not completed high school, Heyes disclosed personal information about scholastic and other difficulties his own son had experienced. Ordonio posed various questions and related some of his own experiences, mentioning that he loved to read books (p. 59). Ordonio disclosed that at one point he was “thinking of becoming a police officer” (p. 54) and inquired about how the chain of command worked within the police force (pp. 60-61).

[54] Heyes then shared that he had asked one of his sons to leave the family home, in part because he was taking drugs. Ordonio actively participated in the conversation by providing his perspective on the son’s conduct and Heyes’ role in trying to correct it.

[55] The conversation then changed to a discussion about tattoos. Heyes expressed admiration for tattoos in general and the two men described their tattoos to each other. Ordonio showed some of his tattoos to the officer, which included the words “veritas” (truth) and “aequitas” (justice).

[56] At approximately 3:15 Heyes then shifted the conversation to explore Ordonio’s social network and any sources of income. This included his relationships with Dookhram and Lu, both of whom he worked for intermittently “under the table”, i.e. on a cash basis. At 3:30 p.m., when asked about his activities in the three days preceding the murder, Ordonio indicated he was “just relaxing at home”, watching Netflix and playing videogames (p. 101).

[57] Heyes next brought the conversation back to his difficulties with his son, which prompted Ordonio to disclose details about a very strained relationship with his own father. Heyes then told Ordonio that one of his two sons was killed while a passenger in a drunk driving accident, indicating that he had since forgiven the driver because “he accepted responsibility for his actions”. He suggested to Ordonio that his situation was similar because it was “something that got out of control” (pp. 138-9).

[58] In cross-examination on the voir dire, Heyes stated that while his son had indeed died tragically in a car accident, it was a single car collision and his son was the driver and sole occupant of the vehicle; no one else was involved or responsible.

Part 2: Presentation of Evidence

[59] Beginning at approximately 5:00 p.m., Heyes outlined for Ordonio the specific items of evidence that linked the three accused to the crime. This included photographs, surveillance footage, and telephone records, along with portions of statements made by a witness and the two other accused. I consider this to be a crucial preface to the admissions that Ordonio subsequently made. Importantly, none of this information was fabricated; all of it was real evidence that police had gathered during their investigation thus far. In particular:

a) At 5:03 p.m., Heyes showed Ordonio a picture of the silver four-door Audi used as the getaway vehicle in the murder;

b) At 5:07 p.m., Heyes played portions of a statement by a witness who noticed two young men in a silver four-door Audi in the underground parking garage of the deceased’s apartment complex, in suspicious circumstances, on the day before the murder;

c) At 5:12 p.m., Heyes showed Ordonio a photograph of the victim, Hsin;

d) At 5:26 p.m., Heyes showed Ordonio a photograph of himself and Dookhram with the silver Audi (which had been rented), returning it to its owner after the murder;

e) At 7:18 p.m., Heyes showed Ordonio his phone records that confirm communications between him and Lu on the day of the murder, both before and after Hsin was killed;

f) At 7:35, Heyes showed Ordonio a photograph of the BMW in which Hsin was murdered, parked near the bank she attended just before the killing;

g) At 7:40, Heyes showed Ordonio phone records showing numerous calls between him and Dookhram in the three days preceding the murder;

h) At 7:42, Heyes played an audio recording of Dookhram speaking to the owner of the Audi, who was upset because the police had seized his car;

i) At 7:47, Heyes showed Ordonio video surveillance from Hsin’s parking garage with two male individuals, near the same Audi, “scoping out” the underground before the murder;

j) At 7:58, Heyes showed Ordonio a photograph of the Audi that Dookhram identified as the car used in the murder;

k) At 8:01 p.m., Heyes showed Ordonio a photograph of the victim where she was found in her car, covered in blood;

l) From 8:13 to 8:18 p.m., Heyes played segments from the video of Dookhram’s interview on October 8, 2015, in which he directly implicates Ordonio in the murder;

m) From 8:42 to 8:46, Heyes played another segment from Dookhram’s video statement (clip #4), in which Dookhram explains how he drove Ordonio away from the murder scene, and Ordonio changed his clothes in the car;

n) From 8:55 to 8:56, Heyes played the next segment of Dookhram’s video (clip #5) in which Dookhram states that he saw blood on Ordonio’s arm after Ordonio got into the Audi;

[60] Throughout this presentation Ordonio paid close attention to all the incriminating evidence presented. It is also clear he was concerned about it; at 8:35, after a lengthy comment by Heyes about a portion of Dookhram’s video statement, Ordonio challenged the video’s reliability, claiming “everything that I’m hearing is pretty much hearsay”. Heyes responded, correctly[^2], that it is not:

Heyes: …that is not hearsay that is right out of his mouth, that’s why I’m showing it to you. He was there, he lived it, he was there.

Ordonio: I didn’t do anything.

Heyes: Yes you did…It’s not hearsay that’s him telling his side of the story of what he was involved in. So it’s not hearsay so I don’t know where you got that from. If it was hearsay I wouldn’t even show it to you. Why would I waste my time?

Part 3: Ordonio’s Admissions

[61] Just before 9:00 p.m., we see a pivotal shift in the dynamic between the two men. Ordonio moves from being on the receiving end to trying to control the outcome. He develops an exit strategy: he will admit to being involved in the murder but in a reduced role.

[62] The shift begins at 8:48 p.m. There we see the first real change in Ordonio’s approach. He admits that he paid Dookhram $2,000, purportedly in order “to invest” in Dookhram’s construction business. At 9:00 p.m., after watching Dookhram describe him with fresh blood on his arm right after the murder, he asks for a bathroom break and a cigarette. At 9:10, shortly after he has returned from the bathroom, he declares “I’m gonna say this first and foremost, I did not kill her. I did not.” After securing a cigarette, he discusses various “safety” concerns about giving a statement, which I will elaborate upon below.

[63] Then, after acknowledging at 9:23 that he “can say a lot”, he proceeds to reveal the following over the next hour:

• After the failed attempt to murder Hsin in November, he “scoped out” the hospital ward (where she was recovering) as well as her condominium building;

• Before the murder took place he and Dookhram “scouted” and did “some recon” around Hsin’s condominium building;

• Lu was behind the scheme but it “goes beyond” him;

• He was paid between $10,000 and $20,000 for his role in the murder;

• Out of that money he gave Dookhram “several grand”;

• Although he was “present” when Hsin was murdered, the actual killer was someone other than him and Dookhram;

• On the day of the murder, he and Dookhram were in the Audi with the actual killer, whose identity he does not know because his face was covered.

[64] Then, at 10:48 p.m., after further conversation with Heyes, Ordonio asks to “write it all down”. Heyes obliges, giving him pen and paper and some time alone in the interview room. Ordonio finishes writing his statement approximately one hour later, at 11:53 p.m. However, during that period there is some intervening discussion, including several monologues by Heyes which I discuss further below. The document is ultimately signed by Ordonio at 1:07 a.m., and is 1 ¾ pages of handwriting. In sum, it states the following:

• Lu first approached him in October of 2014 to “do a job for him”;

• Although he was not part of the “failed attempt” to kill Hsin in mid-November of 2014, afterwards he went to the hospital where she was recovering to “finish it”, but there were “too many people around”;

• After Hsin was moved to a different hospital he was told to “scope it out and try to finish it”; when nothing happened Lu’s “Uncle” got upset that it wasn’t “finished”;

• After Hsin returned home he did some more “recon” but “she was hard to get to”;

• By then, he had been paid “several thousands of dollars to get things done” but still hadn’t finished the job, so he asked Dookhram to help;

• With Lu’s help, he and Dookhram “scoped out the area”;

• Dookhram has reversed their roles in his statement; Dookhram instructed him to drive the Audi, and then called him to be picked up; when Dookhram entered the car his face and jacket were covered with blood;

• Later, Dookhram told him that Lu hid him in the backseat of the BMW; and

• He was not in the BMW when Hsin was murdered.

[65] After he read Ordonio’s written statement, Heyes continued to question him, expressing strong skepticism about his account. By and large Ordonio stuck to his written version, although he added a few details:

• After the failed attempt to kill Hsin in November, when he was supposed to “finish her off”, he tried “to get a gun”, but could not, so he hired Dookhram to “finish her off” (p. 352-4);

• He, Dookhram and Lu worked together to get the job done; and

• Lu instructed Dookhram on how to get the job done.

[66] The interview ended at approximately 2:00 a.m. Ordonio is then driven to 12 division. On the way there, he jokes with the officers about having his hands cuffed in front rather than back, and compliments one of them on his jacket.

The Legal Framework

[67] An accused person’s statement to a person in authority is presumptively inadmissible. The burden is on the Crown to establish beyond a reasonable doubt that the statement was made voluntarily.

[68] There is a significant body of jurisprudence from the Supreme Court of Canada setting out the legal principles that govern voluntariness. The relevant cases include: R. v. Oickle, 2000 SCC 38, R. v. Spencer, 2007 SCC 11 and R. v. Singh, 2007 SCC 48.

[69] By way of summary, Oickle sets out a two-stage analysis to determining voluntariness. In the first stage, the court must consider whether there were inducements, such as promises or threats, sufficient to overcome the will of the accused. An inducement, on its own, is not improper; indeed, the court observed that as 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 best interests to confess.

[70] An inducement becomes improper only when - on its own or combined with other factors – it raises a reasonable doubt about “whether the will of the subject has been overborne”. The critical factor in evaluating an alleged inducement is whether it amounted to a quid pro quo, offered in exchange for a confession: Oickle, para. 57.

[71] That theme was developed further in Spencer, where the Supreme Court held that “while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis….”: Spencer, para. 15 (emphasis added). In that regard, the court must consider whether there is a “causal connection” between the police inducements and the subsequent confession: Oickle, para. 84. As I discuss further below, the necessity of a causal link will be pivotal to this ruling.

[72] The court also considers, at this first stage, whether there was an atmosphere of oppression. This is a fact-driven analysis of both the personal characteristics of the accused and the conditions under which the statement was obtained. In addition to the age and sophistication of the accused, it considers the length of the interview, whether the suspect was denied access to counsel or deprived of food, clothing, water, sleep or medical attention; and the existence of excessively aggressive, intimidating questioning for a prolonged period of time. A further possible source of oppressive conditions is the police use of false evidence to convince a suspect to confess: Oickle, paras. 58-61.

[73] The final factor to be considered at this first stage is whether the accused has an operating mind. While this issue typically arises when the accused suffers from a cognitive deficiency, the bar is not high; the statement is admissible if the accused knows what he is saying and that he is saying it to police officers, who can use it to his detriment: Oickle, para. 63. He need not be capable of exercising “analytical reasoning”, or making a good or wise choice: R. v. Whittle, 1994 CanLII 55 (SCC), [1994] S.C.J. No. 69, at para. 45.

[74] The doctrines of oppression, inducements and an operating mind are primarily concerned with reliability. The second part of the analysis is a distinct inquiry into whether the police used trickery to obtain the statement. While it is still related to voluntariness, its focus is maintaining the integrity of the criminal justice system. Courts accept that to solve some crimes the authorities must use certain tricks or other forms of deceit; however, tactics which “shock the community” will not be tolerated. Examples cited by the Supreme Court include a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin: Oickle, para. 66.

[75] Finally, and importantly, a confession analysis must always be contextual. Because of the wide range of circumstances that come before the courts, judges should resist hard and fast rules and instead consider all the relevant factors unique to the case before them: Oickle, para. 47.

[76] In particular, in each case the court must consider both conduct and effect. Hence the Supreme Court’s statement in Singh that on the question of voluntariness, the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his free will. While the test is an objective one, it must take into account the individual characteristics of the accused: para. 36.

[77] This important theme runs through much of the jurisprudence. Several cases have emphasized that courts should not only seek to identify instances where the police have offered something in exchange for a statement, they should explore the strength of the connection between that which was offered and its effect on the accused: Oickle, paras. 50, 54, & 84; R. v. Upward, 2016 ONSC 752, paras. 62 & 64; R. v. Thomas, [2005] O.J. No. 1745 (S.C.), para. 32; R. v. L.F., [2006] O.J. No. 658 (S.C.), para. 11.

[78] In other words, depending on the makeup and constitution of the accused, the impugned statement may have a huge impact or barely make a dent. It is therefore important to take stock of the individual being questioned and his personal circumstances. As I expand upon below, this theme will be pivotal to my decision in this case.

My Assessment of Ordonio

[79] In their written and oral submissions, defence counsel repeatedly characterized Ordonio as a young, naïve prisoner who was oppressed and overwhelmed by a seasoned, wily and manipulative officer.

[80] I shall examine Heyes’ behavior in detail below. This was a focused and prolonged interview and at a few points, Heyes strayed into dangerous territory. However, I am confident that any transgressions Heyes committed had no meaningful effect in eliciting Ordonio’s statement. After careful review of this lengthy video, I find Ordonio, far from the browbeaten and beleaguered captive that defence counsel describes, to be a cunning and calculating individual who held his own throughout.

[81] This resolve and calculation was apparent in the initial interview with Allen and Wilson on July 10, 2015. Significantly, when asked to describe Ordonio’s demeanor during that interview, Wilson opined that Ordonio appeared to be using the interview “as an information gathering tool”. The videotape bears that out: Ordonio selectively answered certain questions and shrugged off others. When the officers pressed him on certain points he brushed them off like flies.

[82] This presentation continued throughout the long interview with Heyes. Ordonio promptly took stock of Heyes and realized he was up against an entirely different specimen than Wilson or Allen. But he adjusted quickly and adeptly, keeping Heyes at bay for several hours. He watched, waited and kept silent. It was only once the cumulative effect of the incriminating evidence became obvious that he decided to talk, in order to impress upon the police his version of what had occurred. At the crucial points of the interview, he was deliberate and strategic. Any personal connection Heyes may have established did not lull Ordonio into mistaking the true purpose of the interview – or his exposure.

[83] In sum, Ordonio was not a naïve or vulnerable teenager who was overborne by Hayes. Although still a young man at 25, he was alert throughout to his exposure. Once he understood the gravity of Dookhram’s allegations and the other incriminating evidence, he was savvy enough to strategize a more favorable outcome for himself.

[84] I shall elaborate on this in the appropriate sections below.

Issues and Analysis

1. Oppression

a) Length of Interview: Fatigue/Physical Discomfort[^3]

[85] Ordonio was in the interview room for almost 13 hours. During that time, he remarked on a few occasions that he was “tired”, and is seen yawning at various points. On several occasions while Heyes was outside of the room, Ordonio rested his head on the table.

[86] Defence counsel maintains that Ordonio fell asleep on one or more occasions. While he is certainly fatigued at points, I cannot conclude from watching the video that he ever fell asleep, and there is no evidence from Ordonio on this point. He certainly remained sufficiently alert during his interactions with Heyes, and it is clear throughout that he is carefully tracking the conversation.

[87] Ordonio also complained of back pain and at a few points opted to sit on the floor rather than the chair. On one occasion while Heyes was outside the room, Ordonio lay down on the floor to ease his back. From watching Ordonio throughout the entirety of the interview, any back discomfort he may have experienced clearly did not impede his ability to absorb what Heyes put to him or, when he so chose, to answer back coherently and forcefully.

[88] Importantly, there were also many breaks during the interview, including several points where Ordonio used the bathroom or was provided with food and drink. Ordonio used the bathroom just before the interview began and then on a further seven occasions during the interview (1:48 p.m., 2:14 p.m., 3:14 p.m., 4:42 p.m., 6:17 p.m., 9:02 p.m.,1:05 a.m.). In addition to the 8 occasions where he attended the bathroom, there were 22 other occasions on which questioning ceased and Heyes left the interview room (1:24–1:35, 1:48–1:49, 1:50–1:53, 1:56–2:01, 2:01–2:15, 3:15–3:19, 3:20–3:26, 4:42–4:43, 4:44–4:46, 5:53–6:00, 6:17–6:44, 6:44–7:00, 7:01–7:01, 7:16–7:16, 7:55-7:58, 8:02-8:03, 8:21-8:21, 9:02-9:03, 9:11-9:14, 9:59-10:02, 10:04-10:04, 10:50-11:00, 11:01-11:12, 11:49-11:49, 11:53-11:55, 1:05-1:06, 1:07-1:17, 1:41-1:44, 1:44-1:54).

[89] As for refreshments, at 1:47 p.m. Ordonio requested and was provided with tea. At 3:13, 4:42 and 5:52 p.m., Ordonio again asked for and received tea. He was also continually supplied with water. At 5:52 p.m., Heyes offered Swiss Chalet to Ordonio and submitted his request; the food was delivered to Ordonio at 7:00 p.m.

[90] At 6:03 p.m., Ordonio stated that he felt cold. The police brought him his jacket at 6:44. While that delay is somewhat disturbing, he later on voluntarily removed his jacket, suggesting the room was not unreasonably cold.

[91] Significantly, Ordonio’s admissions do not begin until approximately 9:00 p.m., more than two hours after he has been provided with dinner and warmer clothing. This suggests that there is no causal connection between those factors and the admissions ultimately elicited from Ordonio.

[92] Ordonio was also permitted to smoke, even though it was against usual policy to permit smoking in the interview room. At 3:09 p.m., Ordonio requested a cigarette. One was provided at 3:20 p.m. Ordonio requested and received cigarettes on four other occasions (4:42 p.m., 9:11 p.m., 10:02 p.m., & 1:17 a.m.).

[93] Finally, for someone who was allegedly oppressed and exhausted, Ordonio was disinclined for their conversation to end. He engaged Heyes in idle talk on a variety of topics late into the night, asking Heyes questions about his marriage; his country of origin; his athletic interests; and his wardrobe (pp. 318-324). At 2:00 a.m., after Heyes has clearly ended his questions, Ordonio carried on with casual chatter, asking Heyes details about his upcoming travel plans (pp. 384-6).

[94] In any case, other courts have noted that a lengthy interview does not, on its own, render a statement inadmissible. It is the events that occur within that time frame that must be scrutinized. The Court of Appeal in R. v. Owen, [1983] N.S.J. No. 367 found a 14 hour statement voluntary; despite “extremely persistent” questioning by the police, the accused’s will was not overborne. Much like Ordonio, he replied to questions when he wanted to and declined to answer when it suited his purposes (paras. 28-30). In R. v. Isaacs, 2016 ONSC 5272, the court concluded that a 10 hour session was not oppressive; Fragomeni J. observed that even after numerous hours the accused remained engaged in the conversation, asking questions and asserting his wishes (para. 124).

[95] Similarly, in R. v. Merritt, 2017 ONSC 2449, which involved a 15 hour statement, Dawson J. found the accused was not “worn down or weakened in his resolve by virtue of the length of the interview” (para. 80). As in Merritt, a significant portion of the interview here involved the presentation of evidence by the officer and the accused’s challenge of it. The evidence was not manufactured nor was its significance exaggerated. Moreover, it is apparent from the video that Ordonio was keenly interested and engaged in the evidence presented by Heyes. Following that, it was entirely Ordonio’s idea to write out and present his own version of how the crime unfolded. That dynamic between the two men prolonged the interview significantly.

[96] The Crown argues as well that despite the length of the interview, Ordonio’s resolve was never broken; although Heyes made it clear throughout that he believed Ordonio was the stabber, Ordonio refuted that to the end, and offered instead his own explanation for any incriminating information.

[97] That the interview did not result in the admission of liability sought by the police does not make it voluntary: R. v. Holmes, 2002 CanLII 45114 (ON CA), [2002] O.J. No. 4178 (C.A.), paras. 27-8; R. v. Barges, 2005 CanLII 47766 (ON SC), [2005] O.J. No. 5595, para. 78. Rather it is the court’s assessment of all the circumstances that is critical. While the interview in this case was very long, Ordonio was fully engaged throughout the conversation and any answers he chose to give were on topic. Both the oral and written versions that he gave of his involvement in the murder demonstrate that he understood not just the thrust of the allegations but the important details. Even at the very end of the interview, he remained engaged and alert.

b) Reid Technique

[98] The defence maintains that Heyes used a manipulative interview technique, specifically known as the Reid Technique, to extract admissions from Ordonio. The technique involves the interrogator running a tightly controlled session in which certain themes are developed. The themes include befriending the suspect and moving physically close to him; minimizing his blame or justifying the crime while insisting that he committed an offence; seeking (or suggesting) a reason why the suspect committed the offence; and suggesting two alternatives, both indicative of guilt but one more socially acceptable than the other. Throughout the session, the questioner encourages a confession by appealing to the suspect’s family attachments or personal circumstances.

[99] Although Heyes denied that he employed the Reid technique in this case, it is undisputed that he incorporated some of the themes, in particular his insistence on Ordonio’s culpability and his suggestions of how Ordonio could both admit to and rationalize his involvement. In that vein, he repeatedly suggested to Ordonio that the murder was not his idea, he just got “caught up” in a bad situation.

[100] I recognize that courts have expressed concern over the reliability of statements produced through the Reid technique, including Schreck J. in R. v. C.T., 2015 ONCJ 299, and Glithero J. in R. v. Barges, 2005 CanLII 47766 (ON SC), [2005] O.J. No. 5595 (S.C.). However, both they and numerous other courts have observed that the fundamental issue is not what technique the police used but whether, in all of the circumstances, the statement elicited was voluntary: R. v. Upward, 2016 ONSC 752, paras. 53-55; R. v. Morgan, 2010 ONSC 3459, paras. 25-26; R. v. L.F. [2006] O.J. No. 658 (S.C.), paras. 9-10.

[101] Heyes also acknowledged that at several points he made physical contact with Ordonio, another supposed hallmark of the Reid technique. This included moving in close to him at various points and, when Ordonio was in the corner crying (discussed below), placing his arm around his shoulders.

[102] Contrary to defence counsel’s submissions, in the context of this case I do not find it was “assaultive” behavior. Ordonio repeatedly encouraged and welcomed Heyes’ close presence. On several occasions, he indicated that he liked Heyes and sought his company.

[103] Defence counsel suggests this demonstrates that Ordonio was in thrall to Heyes, akin to the “Stockholm syndrome” wherein a hostage develops a psychological alliance with his captor, as a survival strategy. I see nothing whatsoever about Ordonio that suggests he switched sides. Whether he genuinely liked Heyes (as he repeatedly declared during the interview), or merely played nice in order to assuage him, he was mindful throughout of his own interests and how best to guard them.

[104] Defence counsel also referred me to R. v. Thaher, 2016 ONCJ 113, another case where Heyes was challenged for using characteristics associated with the Reid technique. While Schreck J. excluded the impugned statement on the basis that the Crown had failed to establish voluntariness, there are several important distinguishing features between Thaher and this case. Thaher was “seriously mentally ill”; he was offered no food (other than a tea biscuit) or any bathroom breaks throughout a 12 hour period; and Heyes made frequent use of false or non-existent evidence: paras. 27, 93, & 118.

[105] To the extent Heyes used the Reid method in this case, I find, for the most part, that nothing problematic resulted from it. Ordonio was not easily moved. The reason he ultimately provided an account of his involvement was to counter all the incriminating evidence police had collected. With a different, more vulnerable accused, a court might find the interactions between Heyes and the accused left a reasonable doubt about whether the latter’s will was overborne. That is not this case.

[106] In support of their assertion that Ordonio was overborne by the Reid method or other techniques Heyes used, defence counsel submitted a lengthy “Reference Chart” documenting, in minute detail, all the various alleged improprieties arising from the interview. Seen on its own, the chart is problematic, for three reasons.

[107] First, it leaves out many of Ordonio’s comments or responses, which demonstrate that for much of the interview, he often either stood his ground or gave back as well as he took. Here are some examples:

• At the outset, after Heyes introduced himself, Ordonio asked him to produce his badge in order to confirm his identity (p. 14);

• When Heyes produced a portrait photo of the murder victim and asked “it’s tough to look at her knowing that she doesn’t look like this anymore, does it?”, Ordonio responded “Well what do you mean by that?” (p. 178);

• After Heyes asked him “what do you think I have to talk about Eric [Lu] for?”, Ordonio replied “I wouldn’t know” (p. 179);

• When Heyes asked “Did you plan this?”, Ordonio responded “Why would I plan anything?” (p. 187);

• After Heyes stated “…I truly believe this was set up by somebody else and you know who that person is…”, Ordonio replied “Well who would that be?” (p. 189);

• When Heyes explained he didn’t want to estimate how long a prison sentence might be for this crime, saying “I don’t wanna be that bad guy. I’m already a bad guy as it is, cause I’m a police officer in some people’s minds…”, Ordonio responded “Well…you know cops do fucked up things as well” (p. 208);

• After Heyes showed Ordonio phone records confirming Lu had called him on the day of the murder, Ordonio pushed back: “Okay, let’s be real here…so what, he called me” (p. 222);

• After Heyes produced a video showing Dookhram and another man (allegedly Ordonio) returning the getaway Audi, and asked Ordonio “So, what do you think about that…?”, Ordonio responded “I don’t think anything about it” (p. 233);

• When Heyes opines that Lu hired Ordonio because that’s what he needed to “get it done right, so he comes to you, a cold-hearted killer”, Ordonio responds “No…I’m just an introverted guy that likes to play videogames.” (p. 235); and

• After Heyes asks Ordonio “You’re not afraid of what your life entails now?”, Ordonio responds “Well I didn’t do anything” (p. 240).

[108] Even at crunch time (around 9:00 p.m.), after the full weight of Dookhram’s damning statement has hit Ordonio, he tries to play tough (pp. 244-5):

Heyes: ….What about that?

Ordonio: (No response)

Heyes: Hmm, what do you gotta say about that?

Ordonio: (Shakes head no)

Heyes: No? You don’t like it though do you, I can see that…you don’t like it, cause you know why, cause that guy [Dookhram] is not lying, that guy actually has a conscience…Gonna get angry with him?

Ordonio: (Shakes head no)

Heyes: Cause that’s not what you told him to do, you told him (Inaudible) just stick to the story that’s what you told him that’s why you’re angry, that’s why you’re upset.

Ordonio: I’m not upset.

Heyes: Oh you are.

Ordonio: (Shakes head no)

Heyes: Your body is shaking like a leaf right now, because he’s not listening to what you told him to do…

[109] After Heyes goes on in that manner for several more minutes, Ordonio has a further rejoinder, declaring “everything that I’m hearing is pretty much hearsay” (p. 252).

[110] Second, the chart is problematic because it ignores evidence showing that Ordonio had his own agenda; he came into this meeting wanting to know what evidence the police had collected:

• At 2:27 p.m., in the initial stages of the interview, and before Heyes began to address the substantive issues, Ordonio told him to stop “beating around the bush” and ask him questions (p. 42).

• At 7:04 p.m., when Heyes asked Ordonio if he wanted to talk about the events, Ordonio stated “I wanna go through the events”. Heyes proceeded to do so (pp. 215-218).

• At 7:14 p.m., when Heyes was presenting a video from the Reflexology clinic, Ordonio asked him to make the screen bigger. As the video is shown, Ordonio watches it closely (pp. 219 - 220).

• At 7:20 p.m., Ordonio asked to see the phone records that Heyes relied upon in asserting that he was in Cooksville at a time relevant to the offence (p. 222).

• From 8:15 to 8:20 p.m., while Heyes played excerpts from Dookhram’s videotaped statement, Ordonio watched intently, and appeared stricken at points (p. 244-5).

• At 9:21 p.m., after Heyes indicates that “later on” he is going to show Ordonio a video clip from Lu’s interview, Ordonio states “I wanna see this, I wanna see this god damned clip” (p. 267).

• At 9:59 p.m., Heyes left the interview room. He left his file behind. With the officer out of the room, Ordonio immediately took hold of the file and riffled through the contents (p. 289).

• At 10:33, when Heyes confronted Ordonio with phone records showing calls between him and Dookhram around the time of the murder, Ordonio asked “Does it say received or outgoing?” (p. 304).

[111] Third, and most importantly, reading extracts from the transcript cannot accurately convey the full arc of the interview. As the Supreme Court noted in Oickle, “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” (para. 54). It is necessary to watch and listen to the complete video recording carefully because it reveals many dynamics that are not captured in the transcript. It demonstrates, in particular, Ordonio’s steady and resolute attitude throughout much of the interview. Vitally for this decision, it shows that the change in his approach at around 9:00 p.m. was triggered by the cumulative effect of the incriminating evidence that Heyes put to him – piece, by piece, by piece. I have watched the entire video carefully and reviewed much of that crucial transitional portion (between 5 p.m. and 9 p.m.) repeatedly. Ordonio finally talked not because he was bullied or tricked, but because he realized the evidence boxed him in.

[112] In sum, it is apparent from watching him on the videotape that he carefully followed the evidence Heyes presented, and that is what led to his admissions. Importantly, none of that evidence was fabricated or exaggerated. All of it was real, accurate, reliable and admissible.

[113] I recognize that Heyes deliberately misstated the circumstances around his son’s death (see paras. 57-8 above), undoubtedly to encourage Ordonio to follow the same example as the “offender” who obtained forgiveness by admitting to his crime. In any case, it did not work; although Ordonio expressed sympathy to Heyes for the loss of his son, he remained insistent that he played no role in this crime until hours later, when the full weight of the evidence impacted him.

[114] For those reasons, I conclude there is no causal connection between Heyes’ use of any aspects of the Reid method and the admissions ultimately elicited from Ordonio. To that I add one caveat. At several points during the interview, Heyes embarked on long monologues setting out his theory of Ordonio’s involvement. Those speeches had little if any impact on Ordonio and he never adopted them. However, lengthy monologues have been identified as a negative feature of the Reid technique. As Glithero J. noted in Barges, there may be little probative value in unanswered police theorizing, and it can have prejudicial effect as it “effectively allows the Crown to have another jury address” (para. 92). While in this case I have found that the statement in its entirety is voluntary, any prejudicial portions may, in the trial judge’s discretion, be edited or eliminated.

2. Inducements

a) Safety/Confidentiality

[115] As I noted above, shortly after 9:00 p.m., and just before he reveals his role in the murder, Ordonio raises various “safety” concerns for himself and his family. He stands up from his chair, moves over to the corner, sits down, and begins to cry. He claims he “can’t breathe” and expresses fear that whatever he says may be shown to others. He begins to whisper and refers to “mafia guys” and “triads” (p. 278-279). He asks Heyes for protection.

[116] At various points going forward, Ordonio seeks assurances of confidentiality regarding anything he says. Heyes gives conflicting responses. At certain points he appears to reassure Ordonio that he is out of the camera’s view and their conversation is private (pp. 277, 279, 285). However, Heyes also tells him that he cannot promise anything or address any safety concerns without knowing what they are based upon (pp. 266, 267, 278, 279). When Ordonio expresses concern that his revelations will “get back” to him, Heyes not only does not refute that possibility, he actually confirms it, responding “Well it’s gonna get back to Dookhram as well.” (p. 297)

[117] When pressed to explain his alleged safety concerns, Ordonio states repeatedly that the scheme goes “beyond” Lu and “came from higher”. He implies there is a large organization behind the murder, but remains vague. Although he proceeds to reveal some details about the murder, he signals that he wishes to write out his account on paper and asks for protection for himself and his family. Heyes tells him that he will do everything in his power to protect his family but needs to understand the nature of the threat (p. 300).

[118] They continue to discuss the murder and Heyes confronts him with additional incriminating evidence. This includes details of phone calls between him and Dookhram on the afternoon of the murder along with further video clips from Dookhram’s interview. Ordonio then asks to write out his account on paper.

[119] Defence counsel argues that Ordonio only revealed what he did because Heyes gave him false assurances of confidentiality, suggesting at various points that their conversation was private.

[120] On the evidence before me, there are two possible interpretations of this dynamic. The first one, as advanced by the Crown in its factum, is that Ordonio “feigned or hyperbolized his concerns for his safety.” Both Ordonio’s dramatic physical behavior (crying, whispering, crouching on the floor) and his claims about “mafia” and “triads” are contrived and convenient. As soon as the weight of the evidence against him becomes clear, Ordonio ducks it by inventing a crisis and claiming that he is now the victim, in need of protection.

[121] The alternative approach, and the one I take for the purpose of this analysis, is that however irrational Ordonio’s beliefs may be, they were genuine. The issue then is twofold: a) whether any alleged inducement by Heyes actually had an effect on Ordonio and was causal in producing his admissions, and b) if so, whether such admissions are rendered involuntary.

[122] The answer in both cases is “no”. Heyes never gave Ordonio a clear assurance that his statement would be kept confidential; at best his response was mixed. While there is no burden on Ordonio, there is nothing in the video to indicate he believed that, and it is difficult to think that he did since he subsequently wrote out his account by hand and signed it.

[123] In any case, the law is clear that an assurance by a person in authority that a statement made by an accused will be treated as confidential does not render involuntary a subsequent statement made by the accused if the promise of confidentiality is broken by the person making it: R. v. Moran, 1987 CanLII 124 (ON CA), [1987] O.J. No. 794 (C.A.), at p. 23.

[124] Defence counsel, however, relies on an obiter statement in Moran, to the effect that if the person in authority “promised insincerely” not to reveal the statement while intending nonetheless to disclose it, and had thereby “trapped or tricked the accused into making the statement”, then the result may be different. On the voir dire, Heyes conceded he never believed that any portion of the video interview could be concealed. It follows, argues counsel, that Heyes gave Ordonio assurances that he never expected to honour, and thus tricked him into speaking.

[125] That argument fails, for two reasons. First, as I’ve already explained, it is far from clear that Ordonio believed his statement would be kept confidential. Second, rather than exploiting any desire Ordonio expressed for “protection” from those “dangerous” people, Heyes repeatedly and emphatically told him such fears were groundless, and that Lu in particular had no ties to anyone dangerous:

• at 10:05 p.m.: “That guy [Lu] talks out of both sides of his mouth, he doesn’t know fucking triads or whatever…” (p. 290);

• at 10:10 p.m.: “…the fact is, the triads are no longer in this area. They’re not, okay?...the triads are nowhere to be found around here” (p. 291-2);

• at 10:29 p.m.: “Him [Lu] telling you there’s fucking triads out there, him, bullshit….Maybe I’m wrong, but I can tell you right now, bullshit, okay?” (p. 301-2);

• at 10:32 p.m.: “…Eric Lu who tells you that he’s got all these fucking triads gonna come after you if you fuck this up. He’s full of shit. Full of it.” (p. 304);

• at 10:46 p.m.: “I don’t know why you’re so scared of Eric Lu, Eric Lu is a big ass liar and a scaredy cat…” (p. 308); and

• at 12:23 a.m.: “Eric Lu is nothing but a pussy. Nothing. He’s got no ties to anybody, nothing. …You’ve probably dealt with badder ass people in the street than what that guy’s had. Probably can guarantee you that” (p. 342).

[126] In sum, while Ordonio expressed safety and confidentiality concerns, I am satisfied either Heyes dispelled them or they played no role in any admissions Ordonio made.

b) Discussion of Penalty

[127] At 6:04 p.m. Ordonio asked Heyes for a hypothetical assessment of his jeopardy: “Hypothetically how, how much am I looking at?”. Heyes first responded by saying he did not know. When Ordonio persisted, Heyes indicated he did not want to give an opinion but it would depend on various circumstances (p. 205-6):

Ordonio: What am I, what am I looking at?

Heyes: That would depend on the judge, I can’t tell you.

Ordonio: Well in your opinion?

Heyes: Well, in my opinion.

Ordonio: Mm-hmm.

Heyes: Depending on what happens and I, I don’t wanna give you opinions but in, in circumstances like this with other people involved I’m gonna tell you right now it’d be up to the person who decides to say hey I wanna step forward and tell the truth and be honest and what’s – what are they willing to do for me.

Ordonio: Well wha-, well let’s just say I’m as-, I’m really asking you how much am I looking at?

Heyes: Let, let me put it this way and I can’t, I can’t tell you for sure, cause I, I’m not a judge.

Ordonio: Mm-hmm.

Heyes: Okay?

Ordonio: Mm-hmm.

Heyes: I’m not a lawyer, I’m not a judge but what I’m saying to you is first-degree murder, do you know what the penalty is for that?

Ordonio: (Shakes head no)

Heyes: It’s 25 years to life.

Ordonio: 25 to life?

Heyes: 25 to life. That’s 25, before – that’s even before the parole is even granted, 25. But depending on the circumstances there’s lots of different things that can happen, right, that’s what I’m trying to say to you, so many different things that can happen, right? I’m not trying to put you in jail for life…But I would be amiss and I would not want you to look at me later on and go Mark you told me I would get 15 years or I would get ten, right? I don’t wanna do that, cause that would be lying and I would not want that to happen, okay, I don’t wanna do that to you, that’s not fair to Justin. So if I sit back and I say well you know what, there’s, there’s a parameter, right, there’s a parameter obviously and its, it’s, it’s always one of those where when there’s multiple people involved it depends on who comes forward and says here, here it is, here’s the circumstances…

[128] Heyes then urges Ordonio to be honest about what happened and states he doesn’t want to put words in Ordonio’s mouth; it has come from within him (p. 207). Heyes then adds this (p. 208):

…there’s different things at play here and I can’t give you a specific answer. I can’t. I wish I could. If I could Justin I would but I can’t and that would just be wrong of me and then you know, what happens if I said yeah, you know what Justin you’ll get ten years or 15 years. And then all of a sudden a judge goes no, no way, right, then I look like a bad guy. And I don’t wanna be that bad guy…

[129] Defence counsel argues that by suggesting to Ordonio that he might get a lower prison sentence if he “comes forward” and explains “the circumstances”, Heyes offered an improper inducement that contributed to Ordonio’s subsequent admissions. I disagree, for several reasons.

[130] First, it was Ordonio, not Heyes, who initiated and pursued the conversation on this issue.

[131] Second, Heyes repeatedly made it clear that he could not give him an opinion because it depended on many other factors, including what particular role anyone involved played and the views of the presiding judge. That was not put to Ordonio as a “trade” but rather was an accurate statement of what could happen.

[132] Third, nothing flows from this exchange. It is not until approximately 9:00 p.m. – three hours later – that Ordonio begins to reveal anything meaningful about his involvement, and that was triggered by various pieces of damning evidence that Heyes confronted him with. This is reminiscent of Oickle, where the accused’s confession was two hours after the alleged inducement, causing the court to observe that “the timing of the comments…suggests that there was no causal connection between the police inducements and the subsequent confession”: para. 84, emphasis added.

[133] Fourth, subsequent exchanges make it clear that Ordonio never grabbed on to that conversation as a lifeline or made any decisions based on it. At 9:21 p.m., after Ordonio speculates that he will not be returning home “for a very long time”, the following is said:

Heyes: …I don’t know what’s gonna happen, right? I don’t know if you wanna be the person who wants to, you know, be that guy to say here, here’s what happened just like Mark [Dookhram] did, right? This is what took place, then its up to the Crown Attorneys, it’s up to the judges, it’s not up to me, it’s not. I can’t promi-, I told you if you were…

Ordonio: You can’t make promises you can’t keep…

Heyes: Right.

Ordonio: …I understand.

[134] One hour later, at 10:32 p.m., after Ordonio has admitted to scoping out the murder scene and getting paid for his role, Heyes tells him his exposure is the same (p. 303):

…that’s all part and parcel of the same charge, so whether you did the stabbing…or you didn’t, you’re still. Still a charge. Still the same, it doesn’t change, cause people work together to make sure that this lady dies. And you were part of that. Mark [Dookhram] was part of that…

[135] Heyes conveys that again just after midnight, as the interview is winding down (at p. 344):

…The fact is you’re being charged with murder, whether you were the stabber or you were the driver in the car or you were in the backseat of the car or you were scoping it out to find out where she was…

[136] Significantly, Ordonio displays no surprise or betrayal upon hearing any of those remarks.

[137] For all those reasons I conclude that any discussion about potential penalties played no role in Ordonio’s admissions.

c) Impact of Silence on Jury

[138] Defence counsel further claims that certain remarks by Heyes undermined any legal advice Ordonio received to remain silent. There are three occasions where this allegedly occurred: two during the period when Heyes was presenting various pieces of evidence to Ordonio, and one near the end of the interview.

[139] The first was at 7:39 p.m., after Heyes produced some incriminating evidence from Dookhram. When Ordonio deflected any suggestion that he was involved, Heyes theorized at length about his role, and concluded by saying (p.231):“And you can sit there and you can act all cool, but this is gonna make you look like a really bad individual. Bad.”

[140] Approximately 10 minutes later, after a few more monologues from Heyes and another video allegedly showing Ordonio scoping out Hsin’s underground garage shortly before the murder, Heyes said (p. 234): “…you really need to start thinking and thinking hard about what is it that you wanna do, cause a jury is gonna look at you and go this guy has no remorse whatsoever, none.”

[141] Defence counsel argues this is the sort of behavior censored by the court in R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.), aff’d [2002] O.J. No. 3144 (C.A.). It is true that, like here, the officer in Van Wyk suggested to the accused that by maintaining his right to silence, he may not look “remorseful” in court: para. 138. But the driving factor behind Hill J.’s decision were two additional strategies in particular that the officer used: first, he implied that if the accused maintained his right to silence during the interview, the trial court would not later believe him; in other words, it’s now or never. Second, the trial court would hear that he exercised his right to silence, and draw an adverse inference from that: paras 160 – 165.

[142] Neither of those strategies were used in this case, at least not before all of Ordonio’s admissions were on the table. There is a third occasion, near the very end of the interview, when Heyes treads into this dangerous ground. Still frustrated by perceived incomplete admissions from Ordonio, at 1:37 a.m. Heyes states (p. 377): “I’m just telling you what other people are gonna look at. And I’m not talking about other people that are involved in this case. The jury…and the courts they’re gonna look and go Heyes was being decent with him and he was being decent with Heyes but it took him forever to be able to tell Heyes this is what I did…”

[143] That is a troubling comment. Any suggestion that Ordonio’s exercise of his right to silence would result in a negative inference being drawn against him at trial was not just legally incorrect, but had the potential to unfairly trap him. However, in this case it is moot, as it arose at the very end of the interview, after all of Ordonio’s admissions. It yielded nothing.

[144] This case is also distinguishable from the recent decision of R. v. Othman[^4], 2018 ONCA 1073. There, akin to Van Wyk, the officer repeatedly suggested that the accused’s credibility was at its highest during the interview and that the trial court will see and take a negative view of his refusal to speak, leading the Court of Appeal to conclude the officer “improperly undermined the advice the appellant received from his lawyer”: paras. 16 - 18. Neither of those features is present in this case until the very end when, as I have already explained, it made no difference.

[145] I note as well several other distinguishing features of Othman, including that the accused in that case was only 19 and repeatedly asserted his right to silence. Also, unlike Othman, and as I explained above at para. 110, Ordonio came into this interview keen to know what evidence the police had collected against him.

Final remarks on Voluntariness

[146] I recognize that even though none of the above issues raised sufficient concerns individually to render the statement involuntary, the court must consider their collective impact. Nonetheless, looking at the statement in its entirety, including its length, Ordonio’s personal characteristics, and the dynamics between the two men, I am satisfied beyond a reasonable doubt that Ordonio’s will was not overborne. He made a deliberate choice to speak and the statement was given voluntarily.

Conclusion

[147] Mr. Ordonio’s Charter application is dismissed. The Crown’s voluntariness application is allowed. The statement is admissible as voluntary.

COURT FILE NO.: CR-17-735

DATE: 20190321

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and –

JUSTINE ORDONIO

REASONS FOR CHARTER and VOLUNTARINESS RULINGS

BALTMAN J

Released: March 21, 2019

[^1]: R. v. Banwait, 2010 ONCA 869, at para. 145 (overturned on other grounds, 2011 SCC 55). [^2]: The photos, video surveillance, phone records and videotaped statement from Dookhram are all presumptively admissible (for whatever inferences can be drawn) without raising any hearsay concerns. [^3]: In their written submissions defence counsel alleged that Ordonio’s asthma puffer was removed from the interview room, causing him further discomfort; however, during the voir dire and upon close scrutiny of the videotape, counsel agreed the puffer remained in the room throughout. [^4]: Although this decision was released after oral submissions in this case were completed, counsel agreed in writing that I should consider it, along with brief written comments they submitted.