COURT FILE NO.: CR-17-735 DATE: 20190516
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
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: March 18 & 19, 2019
RULING on ADMISSIBILITY of HEARSAY STATEMENTS
Baltman J.
Introduction
[1] Justine Ordonio was charged with first degree murder charge resulting from the death of Teresa Hsin. Teresa was stabbed to death on April 8, 2015, while seated in the driver’s seat of her car, parked outside her Scotiabank branch. The Crown alleged that Ordonio was hired to kill Teresa by her son, Eric Lu, and that Ordonio in turn procured Mark Dookhram to help him carry out the murder. All three men are being tried separately.
[2] Teresa owned a number of spas, all named “Relaxology”. There was a previous unsuccessful attempt on her life in November 2014, when an unknown assailant stabbed her in the underground garage of her residence.
[3] Mr. Ordonio was granted leave (opposed by the Crown) to adduce evidence of a third party suspect, namely Tim Chiu [1]. Chiu was Teresa’s boyfriend and was also involved in running her Milton Relaxology store. At the beginning of the trial the Defence sought to adduce ante mortem statements made by or attributed to Teresa in conversations with her business partners (Emma Qian and Eric Li) and her mother, Maria Hsin, in which she made negative comments about Chiu.
[4] On April 5, 2019 I ruled that the proposed evidence was inadmissible, with reasons to follow. These are my reasons.
Submissions and Analysis
[5] The defence argued that the proposed evidence was relevant to motive and disposition. In particular, defence counsel asserted that Chiu killed Teresa in order to take over the Milton spa and turn it into a brothel, which he had tried to do previously but was prevented by Teresa and the other owners of the spa.
[6] There are three ante mortem statement clusters that the defence sought to adduce. In each case, defence counsel argued they are admissible either under the state of mind exception to the hearsay rule, or under the principled approach to the admission of hearsay. It is undisputed that necessity has been established, as Teresa is deceased. The real debate, under either approach, is about the trustworthiness or reliability of the statements. With that concern in mind, I shall examine the three categories of statements individually.
a) The Emma-Eric-Teresa Restaurant Conversation
[7] On March 15, 2015 – less than one month before Teresa was murdered – Teresa attended a meeting arranged by Emma Qian and Eric Li. Emma and Eric were partners in the Milton store, having invested $40,000 in the business. They were concerned that Chiu was using the spa as a brothel. This meeting was held at a restaurant and was secretly recorded by Qian. Over the course of the 90 minute meeting Teresa made the following comments (translated from Mandarin):
- “He [Chiu] does not have good character and he is an evil person… He is a horrific person…;
- [After Eric expresses concern that Chiu will turn the Milton store into a brothel]; “Is it possible? Do you think it is possible, unless I am dead…He can only do it after I died, then he can be carefree to do whatever he wants”
- “Even now that madman thinks that I am with you two, you know? Tonight we had an argument and we both cursed each other’s ancestors”;
- “My Reflexology Wellness Centre is not to be used to provide sexual services. If so I would have been very prosperous a long time ago…He is crazy for money…Let me tell you, one should not be afraid of a honourable person, but should be afraid of a villain”;
- “It is impossible for me to have the store carrying my business name and provides sexual services. It will not happen, okay?...the result is the store will be closed.”
- “How can this person become so horrible…It’s really horrible”;
- “I think the most important things is if you are going to report him, I will close the store. I will close the store for sure…Kick him out…If you are not willing to operating it, we will sell the store together. I will try to find a buyer”;
- “If you decide to close, uh, to report him I will support you…I will tell him that you are going to report him”;
- “I will not allow him to turn this store into a brothel”;
- “I did not choose to spend the rest of my life with this person. I am afraid….I already told you, to be in the company of a villain, I cannot ignore all my stores…he is not a normal person.”
[8] The defence proposes to call Emma as their witness in order to give the background for this conversation, and then refer to the specific comments by Teresa set out above. Counsel argue the comments are relevant because they demonstrate the strained relationship between Teresa and Chiu, and the animus that Chiu bore toward Teresa: R. v. Griffin, 2009 SCC 28, para. 63; R. v. Carroll, 2014 ONCA 2, para. 109.
[9] Counsel further assert the statements are reliable because they were spontaneous comments captured on an audio recording, were contemporaneous with the relevant events (the November stabbing and the murder), and because Teresa had no motive to lie or exaggerate her view of Chiu and their relationship: Carroll, paras. 108-110.
[10] While recognizing that at this stage the court need only be satisfied of threshold reliability, the court “must look to the circumstances in which the declarations were made” to see if they can substitute for the traditional means of testing reliability, namely contemporaneous cross-examination: R. v. Moo, 2009 ONCA 645, para. 92. At the same time, courts may take a more relaxed approach to the necessity/reliability analysis when it is the defence seeking to advance hearsay evidence and the defence will be prejudiced if the evidence is not admitted: R. v. Williams (1985), 50 O.R. (2d) 321; R. v. Caesar, 2016 ONCA 599 at para. 68.
[11] In my view several circumstances of this meeting make the utterances in question highly unreliable. First, this was a confrontational meeting that Teresa was summoned to attend by disgruntled partners. They had an agenda and were secretly recording the meeting. They start off the meeting by telling Teresa they intend to report Chiu to the police.
[12] Second, it is apparent Teresa is guarded and strategic throughout the meeting. She tells both individuals at the outset that they have ruined half her business by other disclosures they have made to the police. As the meeting progresses she tries different tacks to appease the partners and resolve any dispute. She is anxious to avoid legal entanglements, in contrast to R. v. Cote, 2018 ONCA 870, para. 25, where the proposed statements were made in a “natural manner” and without “contemplation of any legal proceedings.”
[13] Third, Teresa contradicts herself repeatedly. At some points she tells the partners not to report Chiu to the police; elsewhere she suggests they should. At some points she suggests she is afraid of Chiu; elsewhere she states flat out that she is not afraid of him (p. 18). Ultimately her preferred strategy is for Chiu to believe they will report him to the police, in the hope that will propel him to behave better.
[14] I find it significant that even though Teresa repeatedly refers to Chiu in a negative fashion, she never expresses any specific fear of violence or retribution on his part, and in fact states definitively that she is not afraid of him.
[15] For those reasons I find the restaurant conversation is not admissible.
b) Purported statement from Teresa to Emma, in the Hospital
[16] Following the unsuccessful murder attempt on November 13, 2014, Teresa was hospitalized for several weeks. While she was still in the Intensive Care Unit, Emma visited her.
[17] On April 12, 2015, two days after Teresa was found murdered, Emma was interviewed by police. The interview was audio and video recorded. Emma told the police that when she visited Teresa in the ICU back in November 2014, “she [Teresa] said be careful with Tim, I’m like what, what’s going on? Tim hurt you? She said I don’t know, but be careful with him, she’s [sic] a really dangerous person that’s what she said.”
[18] The defence proposes to introduce through Emma that while in the ICU unit (following the November 2014 attack), Teresa told her to “be careful” with Tim, he’s a “dangerous” person.
[19] My first concern is that the statement is ambiguous. It is unclear whether by “dangerous” Teresa is referring to her physical safety, or to Chiu’s activities at the spa, the latter of which she clearly thought put the business at risk.
[20] Second, and more importantly, this statement was made in highly unreliable circumstances. Teresa was still in the ICU, in significant pain and breathing through an oxygen mask. During the restaurant conversation with Emma several months later, when Emma alludes to a discussion that supposedly took place while Teresa was in the ICU, Teresa replies “I did not hear it. You told me this when I was lying in the hospital with an oxygen mask, okay?” (p. 12). As I noted above, Teresa also then states she is not afraid of Tim (p. 18).
[21] Teresa’s own words therefore cast doubt on the reliability of anything she purportedly said while in the ICU.
[22] For those reasons the statement is not admissible.
c) Purported statements from Teresa to Maria, after the November attack
[23] These statements were relayed by Maria (Teresa’s mother) in two different contexts:
i. On April 15, 2015, five days after Teresa was found murdered, police interviewed Maria, at the police station. The interview was audio and video recorded. During the interview Maria reported that after the November stabbing incident, “Teresa told me to guard against [Chiu]. This is a narrow-minded person. I don’t know what evil things he will do. Do not offend him.” ii. At the preliminary hearing on June 28, 2017, Maria testified that after the November incident Teresa told her that when she and Chiu were together they had frequent arguments; that she was not going to marry him; that she was afraid of him; and that they had separated at the time of the November incident.
[24] When combined, the upshot of these two statements is that according to Maria, Teresa said she was not going to marry Chiu because they argued a lot, she was afraid of him, and he was a “narrow-minded” person.
[25] It is difficult to attach any relevance to those comments. The only one that suggests animus or motive is Teresa’s supposed fear of Chiu. But according to Maria, any “fear” Teresa had meant nothing more than he was narrow-minded. This became evident during the cross-examination of Maria during Lu’s preliminary inquiry. At p. 67:
Q. And Teresa told you that she is afraid of Tim? A. Yes. Q. What did she tell you with respect to the reason why she was afraid of Tim? A. She just said that, she did not tell me the reasons. She just said he is very narrow minded , she and she is afraid of him… Q. When you say he’s narrow-minded, what does that mean? Can you use some other words to explain what you mean by narrow minded? A. What was that? Q. What do you mean by narrow minded? A. It’s, it’s very for me difficult to explain like narrow minded. It is-the person is not open minded . He goes always into the minor details, all the nitty-gritty’s. And I don’t know how to say this clearly, but that’s why she is afraid of him.
[Emphasis Added]
[26] This is nothing there to suggest alarm or danger. Any “fear” attributed to Teresa appears to be based on Chiu being stubborn or inflexible, rather than menacing. Significantly, Teresa never articulates her feelings as a fear for her physical safety. At most it appears she is concerned about his impact on her spa business. I see no basis to admit these statements.
Conclusion
- For the above reasons I conclude that Mr. Ordonio’s hearsay motion is dismissed in its entirety.
Baltman J.
Released: May 16, 2019