COURT FILE NO.: CR-17-00000675-0000
DATE: 2021 07 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Alexander Cornelius and Paul Renwick for the Crown
- and -
ERIC LU
- and -
MARK DOOKHRAM
D. Sid Freeman for the Defendant Lu Hans Cedro for the Defendant Dookhram
Heard: September 14, 17 & 18, 2020
PRE-TRIAL RULING
D. E. HARRIS J.
[1] The defendants are charged with the first-degree murder of Ming-Chien “Theresa” Hsin, Mr. Lu’s mother, committed April 8, 2015. A man by the name of Justine Ordonio, alleged to be the person who stabbed Ms. Hsin to death in her car, was tried separately before Baltman J. He was convicted of first-degree murder.
[2] A trial of Mr. Ordonio and Mr. Dookhram had previously begun in mid-January 2019 before Coroza J., as he then was. However, it ended in a mistrial.
[3] Justice Coroza summarized the Crown theory in his alternate suspect/disclosure ruling: R. v. Dookhram and Ordonio, 2019 ONSC 599. On April 8, 2015, Theresa Hsin was moving into a new apartment with the assistance of her mother, her son Eric, and Eric's friend Tyler Bichel. The Crown's theory is that the killer hid in the back seat of Theresa's car while it was being loaded with clothing in her condominium's parking garage. Some time after 4:00 p.m. on April 8, 2015, Ms. Hsin went to the bank. She was reported missing by Eric that evening. Her body was found in her car on April 10, 2015, parked in a disabled parking spot near the bank. The Crown attributes the cause of death to multiple stab wounds and estimates death to have occurred around 4:30 p.m. on April 8, 2015. The Crown's theory is that Eric Lu paid Justine Ordonio and Mark Dookhram to kill his mother.
[4] This hearing was by Zoom videoconference. In these pre-trial ruling reasons, several issues will be resolved.
THE PARKS CHALLENGE FOR CAUSE APPLICATION
[5] Mr. Dookhram is a dark-skinned black man of Guyanese descent. Mr. Cedro requests that a challenge for cause based on the usual Parks question be permitted: R. v. Parks, (1993), 1993 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.), at p. 359 per Doherty J.A., leave to appeal to S.C.C. refused 17 O.R. (3d) xvii (note) (S.C.C.). Surprisingly, the Crown is opposed.
[6] The Parks challenge for cause has been an institution in Ontario jury trials for almost 30 years now. Parks was an interracial trial with a black accused and a white complainant. A challenge for cause based on anti-black racial prejudice was found to be required to ensure that a potential juror would be impartial between the accused and the prosecution under Section 638(1) of the Criminal Code. Following Parks, the necessity for a challenge for cause based on racial bias was extended beyond the interracial context in R. v. Wilson (1996), 1996 376 (ON CA), 107 C.C.C. (3d) 86, 29 O.R. (3d) 97 (Ont. C.A.). Chief Justice McMurtry held at para. 21 that “the question permitted by this court in Parks with the appropriate modification should be allowed in any jury trial in Ontario where the accused is black.” There were several subsequent Court of Appeal cases soon after which reinforced and further entrenched the Parks challenge for cause as a fundamental part of our law: see R. v. Koh (1998), 1998 6117 (ON CA), 21 C.R. (5th) 188, 42 O.R. (3d) 668 (Ont. C.A.); R. v. Campbell (1999), 1999 2688 (ON CA), 139 C.C.C. (3d) 258 (Ont. C.A.). The Supreme Court of Canada affirmed Parks in R. v. Williams, (1998), 1998 782 (SCC), 124 C.C.C. (3d) 481, [1998] 1 S.C.R. 1128 (S.C.C.) and in R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458 (S.C.C.).
[7] The wisdom of the Parks decision has never been questioned. As Justice Binnie said in Spence at para. 25,
…the courts recognize that racist prejudices are “corrosive” of the required indifference…The challenge for cause procedure is about the only tool available to an accused to root out and expose such racism where there is a “realistic potential” of its existence. The benefits of its exercise, where warranted, are at least threefold. The procedure eliminates from the panel potential jurors who cannot, in good conscience and under oath, give a negative answer to the question. It also brings home to the other jurors the potentially insidious effect of racial stereotyping, and thirdly it provides the accused (and members of visible minorities generally) palpable assurance that the law takes seriously the overriding objective of empanelling an impartial jury (Parks, at pp. 379-80, and Koh, at para. 43).
[8] The Crown takes the novel and unprecedented position that the word “black” should not be in the challenge for cause question. In the Crown’s submission, it is not a matter of what Mr. Dookhram looks like but rather how he identifies himself. In an unusual vignette, the Crown directly suggested to Mr. Dookhram in the video conference that he would identify as Guyanese to which, before his counsel could intervene, Mr. Dookhram agreed.
[9] The Crown submitted that we are in one of the most diverse jurisdictions in the country. Misidentifying Mr. Dookhram is a mistake. The Crown continued to say, as I understood him, that the implication that racial biases apply in the same manner per each racial group is an error. The Crown raised the spectre of a “clever lawyer upon the review of this matter” arguing that Mr. Dookhram did not receive the benefit the Parks challenge was intended to bestow. It was insulting to put everyone under an umbrella as black just because their skin was of a dark hue. Indo-Caribbean itself, without the reference to Dookhram as a black man, would identify him with people who have dark skin colour and it would serve the purpose for which the Parks challenge was designed. When asked whether the word black should ever be in a Parks question, the Crown responded by saying that Mr. Dookhram was not black so it would be wrong to have it included in the jury question.
[10] Mr. Cedro for Mr. Dookhram was opposed to the Crown’s proposal and argued that the public might not make the same distinction as did the Crown between black and Indo-Caribbean. He agreed, after consulting his client, that the term of “West Indian of Guyanese descent” was accurate.
[11] The arguments of the Crown cannot carry the day. During the many decades the Parks question has been a part of our jury selection procedure, there has been no hint from the judiciary that the Crown’s reasoning has anything to recommend it. The Crown could not point to any authority to support its position.
[12] The Parks challenge is based on the appearance of the defendant to the outside world, not his own self-identification or self-recognition. Racial prejudice, as abject as it is, derives primarily from the colour of a person’s skin although it of course can be based on other personal characteristics and circumstances as well. But in selecting a jury, a potential jury member is not assured of knowing anything about the accused other than how he looks in court and what he is alleged to have done. The challenge for cause case law is premised on the appearance of the defendant and the physical characteristics which indicate his ethnicity, whether Indigenous, Black or Asian. For example, Finlayson J. said in Koh:
… absent sustainable objection from the Crown, the trial judge should allow a challenge for cause by a member of a visible racial minority … I stress visible when referring to minorities, because I accept the submission of the intervener that distinctions between the various ethnic groups that make up the Asian community are unhelpful. The prejudice, where it occurs, is triggered by skin colour. The same would apply to all visible non-Caucasian minorities.
(Emphasis Added)
[13] The Crown’s submission that referring to Mr. Dookhram as a “black man” is insulting is based on a fundamental misconception with respect to his fair trial rights, however well meaning. Racial prejudice is not stirred up because Mr. Dookhram is Guyanese. Racial prejudice emanates from the colour of his skin. Skin colour, it is almost too obvious to say, is the source of the prejudice. Parks and all the post-Parks jurisprudence is based on it. Outside the law, distinctions based on skin colour are omnipresent in our society. It can be seen in the very language of the Black Lives Matter movement as well as the term “white privilege,” to take but two of a multitude of available examples.
[14] Issues revolving around skin colour are ubiquitous. Sadly, people are not only identified but classified and stereotyped because of the colour of their skin. In the case of black persons, the prejudice that often follows is a profound social injustice. It is one of the most serious social problems facing our society. When it rears its head in the courtroom, it has been held throughout the jurisprudence to be a serious threat to an accused’s fair trial interests.
[15] The Crown’s argument, as I understand it, is that lumping all people with black skin together with no distinction in a Parks challenge is demeaning because it itself feeds racial prejudice. It depersonalizes all people with black skin because, in using the colour of the skin as the sole determinator, it suggests they are all the same. That objection has some truth to it in the context which it constructs for itself. Anything that elides individual human characteristics in favour of a homogenous categorization has a destructive effect.
[16] In “Biased: Uncovering the Hidden Prejudice that Shapes What we Think, See and Do” by Jennifer Eberhardt, Ph.D. (Penguin Books, Kindle Edition, 2019), the author writes at p. 80 (online),
… the implication of the “MALE BLACK” drumbeat rankles me as a person. The label feels unforgiving, sweeping everyone under it into the same narrow space. It is what sociologist Everett Hughes, back in the 1940s, called a “master status”: the primary way in which one is seen. It elevates that aspect of the self above all others.
[17] However, racial prejudice as it contaminates the fact-finding function in the courtroom must be ferreted it out on its own terms, in its own territory. Attempting to eliminate racism from our system of justice is not the time or place for philosophical meanderings. As the Court of Appeal said in R. v. Glasgow (1996), 1996 4009 (ON CA), 110 C.C.C. (3d) 57 (Ont. C.A.), an accused is “entitled to confront ... potential bias head on in the challenge for cause process.”
[18] If the standard Parks question were amended as suggested by the Crown, and “Indo-Caribbean” was substituted for “black”, the question would read like this,
Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the accused person is of Indo-Caribbean descent?
[19] As trial judges, we often see confusion and uncertainty when a person is asked the standard Parks question. Sometimes the question is amended to make it easier for the nervous jury member to understand while answering it under the courtroom spotlight: R. v. Johnson, 2020 ONSC 3673, [2020] O.J. No. 2623 (Ont. S.C.J.). However, if the Crown question were asked in its stead, the potential jury member, observing Mr. Dookhram before them, would be confused and distressed. A jury member would not necessarily understand that he or she were being asked about racial prejudice against black men. They would expect, quite reasonably, if there was a question about racism, for the question to mention the source of the prejudice, that Dookhram is black skinned. They would not understand because on a practical level and taken in the challenge for cause context, the question is incomprehensible.
[20] The Crown rejected the suggestion that both “black” and “Indo-Caribbean” be included in the Parks question. For example, it could be asked of the prospective jury members,
Mr. Dookhram is of Indo-Caribbean descent. Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that Mr. Dookhram is black?
[21] In this way, both the accused’s interest in self-identification could be satisfied and the insertion of “black” would maintain the targeting of those harbouring racial prejudice jeopardizing the impartiality requirement. Both interests would be served simultaneously. The rejection of this obvious solution reveals that the Crown’s submission at bottom must be that the word “black” is a prohibited word and a prohibited concept.
[22] That is manifestly wrong. Some might say there will come a day when the colour of a person’s skin will not register and be irrelevant. But this utopia is no where in sight. The current climate is hardly the time to inject idealized and unrealistic notions into the challenge for cause process.
[23] Contrary to the Crown’s submissions, the proposed question does not honour or vindicate the concern lying beneath Parks; it muddles it. The Crowns’ approach relegates the fair trial interests of the accused to a secondary role in favour of misguided philosophical concerns.
[24] Departing from Parks and the subsequent authorities is fatal to the fairness of a trial: see for example Campbell at paras. 6-8. The submission advanced by the Crown invites reversible error at the very outset of this trial. It must be rejected. The standard Parks question will be asked with the inclusion of “Indo-Caribbean” or whatever language the defence feels best identifies and recognizes the accused.
THE CROWN’S EXPERT EVIDENCE APPLICATION
[25] The Crown applies to admit at this trial the evidence of two expert witnesses: 1. Detective Robert Hofstetter is tendered as an expert on bloodstain pattern analysis. The deceased was found murdered in the front driver’s seat of her car which was parked in a handicapped spot in the bank lot. It was Det. Hofstetter’s evidence on the voir dire that the blood evidence shows that the assailant, armed with a knife, while the deceased sat in the front driver’s seat, attacked her from the back seat of the car; and 2. Jacqueline Osmond, a forensic document examiner, was put forward to give expert opinion on handwriting. It is her anticipated evidence that an 8-page letter found in the Hamilton Correction Centre and purporting on its face to be written by Justine Ordonio, when compared to a known writing of Mr. Ordonio’s, was not actually written by him.
[26] Considering Det. Hofstetter first, Ms. Freedman’s objection is that the blood spatter evidence is not necessary, is unhelpful and a layperson would be able to form their own conclusions from the crime scene without his assistance. The evidence fails the cost\benefit analysis and would only needlessly prolong the trial. Furthermore, it is of no relevance where the assailant was sitting immediately before the attack.
[27] In the end, I disagree. White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, [2015] S.C.J. No. 23 (S.C.C.) compressed the previous authority into this summary of the admissibility of expert evidence:
19… First, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert (Mohan, at pp. 20-25; see also Sekhon, at para. 43). Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21. This is the second component, which the subsequent jurisprudence has further emphasized: Lederman, Bryant and Fuerst, at pp. 789-90; J. (J.-L.), at para. 28.
24 At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J. (J.-L.), Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: para. 76.
[28] A jury member, upon learning of the details of the injuries to the victim’s body and the specifics of the blood and articles in the car, could ascertain facts similar to that derived from the evidence of Det. Hofstetter. That does not preclude admissibility, however. The Crown is entitled to strengthen circumstantial inferences by means of expert evidence. The necessity requirement does not refer to necessity in the proof of the Crown’s case but necessity in assisting the jury.
[29] In R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275 (S.C.C.), Chief Justice McLachlin said in dissent, but with no disagreement from the majority,
21 When it comes to necessity, the question is whether the expert will provide information which is likely to be outside the ordinary experience and knowledge of the trier of fact: B. (R.H.) , supra ; Mohan , supra ; R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852 (S.C.C.) ; R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24 (S.C.C.) ; Kelliher (Village) v. Smith, 1931 1 (SCC), [1931] S.C.R. 672 (S.C.C.) . “Necessity” means that the evidence must more than merely “helpful”, but necessity need not be judged “by too strict a standard”: Mohan , supra , at p. 23. Absolute necessity is not required.
[30] For the majority, Major J. wrote on the subject of necessity at para. 47,
As stated by J. Sopinka, S. N. Lederman and A. W. Bryant,
expert evidence must be necessary in order to allow the fact finder: (1) to appreciate the facts due to their technical nature, or; (2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge.
(J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 620, citing Mohan, supra, at p. 23.)
[31] In my view, the evidence of Det. Hofstetter is necessary in the Mohan sense to ensure through the physics of blood spatter patterns that the jury form a correct conclusion on how the deceased died. This includes the fact urged by the Crown that the assailant likely used the element of surprise to murder her from his hiding place in the back seat of the car. Usurpation of the jury fact finding process and proximity to the ultimate issue, the main arguments against too lenient an approach to necessity, are of minimal or no concern in this instance. Nor will the fact-finding process be distorted if this evidence is heard by the jury. Experience has shown that to bring into tangible focus the details of the crime—where the assailant was, where the victim sat, what the circumstances of the assault were—is important in order for the Crown to present a convincing case.
[32] Therefore, the evidence is admissible. I would caution the Crown however that the stab wounds and other graphic and gruesome details of the death, including the horrifying pictures of the deceased taken at the scene, should be kept to an absolute minimum. They are inflammatory and of limited probative value. Measures must be taken to ensure that the probative value of each portion of the evidence adduced surpasses the prejudicial effect. One way to do this would be for Det. Hofstetter to state his bottom-line conclusions while keeping the evidence in support of his conclusions to the bare essentials. The evidence should not be drawn out in length or in specifics. How best to approach these matters can be discussed at trial.
[33] For the sake of completeness, I would note that I have considered the other prerequisites for expert evidence and find that they are met. Det. Hofstetter has impressive educational and real-life experience in the area of blood spatter evidence, an acknowledged sphere of expert evidence. The benefit of the evidence will outweigh its costs if it is properly managed at the trial. Nor is Det. Hofstetter biased in favour of the party calling him, the Crown, such as to render his evidence inadmissible.
[34] I would employ much the same analysis to the evidence of the proposed handwriting analyst, Ms. Osmond. Looking at the two writing samples, they appear to be quite a different hand, although not radically different. A reasonable jury member could well come to this conclusion on their own. However, like Det. Hofstetter, Ms. Osmond has specialized knowledge well beyond that of a layperson. Her knowledge is not as specialized or as technical of that of a surgeon, for example. But that is not the standard to be imposed. The Crown is entitled to strengthen their advocated inference that there are two different writers by resort to expert evidence, evidence that supplies the trier of fact with additional information making it more likely they will come to a reliable and correct conclusion. Ms. Osmond’s evidence satisfies the necessity criterion and the other prerequisites to the admission of expert evidence as well.
[35] Like for Det. Hofstetter, I have gauged Ms. Osmond’s evidence against the expert evidence criteria and find that her evidence is properly admissible as expert evidence in this trial. She has the training and the experience to qualify as an expert. In light of this, it is of no importance that in her field, there is no certification process. The area of handwriting analysis is well acknowledged as a proper area for expert evidence and she has plenty of experience in the field. Like Det. Hofstetter, I saw Ms. Osmond testify and have no concerns about her expertise or her objectivity.
THE ADMISSIBILITY OF THE STATEMENT OF MARK DOOKHRAM
[36] Ms. Freedman makes application on behalf of her client, Eric Lu, to edit out parts of the police statement of co-accused Mark Dookhram. The police investigators began to look at Mr. Dookhram as a person of interest in the fall of 2015, about six months after the April 8, 2015 murder. Mr. Dookhram was interviewed by the police over an almost 12-hour duration on October 8, 2015. At the 8-hour mark, Mr. Dookhram entered into an agreement with the police to render assistance to them in exchange for no charges being laid against him. The Crown does not propose to tender utterances that took place after this point in the interview.
[37] Justice Baltman, in a ruling dated May 21, 2019, found Mr. Dookhram’s statement to be voluntary and admissible: R. v. Dookhram, 2019 ONSC 3089 (Ont. S.C.). Ms. Freedman, for Mr. Lu, now argues that portions of the statement that implicate Justine Ordonio and Eric Lu have no probative value, are irrelevant and should be excluded. Counsel both for Mr. Dookhram and for the Crown are opposed to the editing.
[38] Ms. Freedman leads with the unassailable proposition that the contents of Mr. Dookhram’s statement are only admissible for and against him, not against Mr. Lu. But the law recognizes that a trial judge’s instruction to the jury to that effect can and will be followed: R. v. Olah, 1997 3023 (ON CA), [1997] O.J. No. 1579 (Ont. C.A.), paras. 40-50; R. v. Grewall, 2000 BCSC 1451, [2000] B.C.J. No. 2386 (B.C.S.C.), paras. 36-40; R. v. Jacobson, [2004] O.J. No. 932 (Ont. S.C.) at para. 4, and R. v. Papadopoulos, [2006] O.J. NO. 5409 (Ont. S.C.). However, there comes a point after which prejudice overflows and cannot be sufficiently curtailed by a limiting instruction. Ms. Freedman argues that there are some portions of the statements which fall into this category and should be redacted.
[39] Justice Baltman in R. v. Thind, 2011 ONSC 4577; aff’d 2013 ONCA 719, extracted the following guidelines for editing in a multi-accused trial from the case law (para. 8):
(1) The trial judge has the discretion to edit statements which include irrelevant or prejudicial evidence against a co-accused;
(2) Even where evidence has probative value it may be edited out if its prejudicial effect is greater;
(3) However, such edits must not change the meaning of the statement in a material manner, either by removing something of legitimate value to the Crown in its case against the declarant or by removing something of exculpatory value to the declarant; and
(4) In deciding whether to edit a statement to protect a co-accused, the Trial Judge must bear in mind that the jury will be instructed on the proper use of the statement and that we expect jurors to follow such instructions.
[40] The Crown’s theory, in a nutshell, is that Eric Lu hired Justine Ordonio to kill his mother. Ordonio enlisted Dookhram as his driver to drop him off near the murder site and to then pick him up after he had killed the deceased. In his statement, as best as I can piece it together, Dookhram says that on the morning of the crime, he met with Ordonio and eventually proceeded to an apartment complex. In his statement, Dookhram says that a Chinese fellow that he had seen once before and who Ordonio had said was named Eric arrived in another vehicle. Ordonio got out of Dookhram’s vehicle and went to talk to Eric. The two left in Eric’s vehicle for a period of time. After some time, Dookhram got a call from Ordonio to pick him up. After he picked him up in the car, Dookhram asked him what was going on and Ordonio told him to just drive. Ordonio took off one layer of the clothes he was wearing. He saw quite a bit of blood on him, especially around his hands. After much prompting, Dookhram admitted that he saw Ordonio with what looked like a hunting knife. Ordonio put the knife, with his extra clothes, in a bag. He said that he had killed a woman and Dookhram told the police that he knew the lady was Eric’s mother. Ordonio said that he had been in the back seat and he had stabbed her from there. Ordonio said that he was working for Eric. Ordonio said that he had done things for Eric before. Dookhram then dropped Ordonio off near Liberty Village in Toronto. Ordonio told him to clean the car and not to talk. About two weeks later, Ordonio gave Dookhram $3,000 in cash.
[41] The main topics of the statement then are where Dookhram drove and what he did at Ordonio’s request, what Ordonio said to him, what Dookhram saw (the blood on Ordonio and the knife he was in possession of) and observations of the Chinese person whom he knew as Eric.
[42] There are over 60 edits proposed. I do not intend to go through them individually. In terms of Ms. Freedman’s arguments that portions should be excised, I would group the evidence she argues under two hearings: 1. Hearsay conveyed by Dookhram. The declarant is Ordonio in the vast majority of these instances; and 2. Statements incriminating a Chinese person whose name is Eric. The reasonable inference is that this person is Mr. Lu.
[43] The analysis of the defence editing submissions need not be overly complicated. The statement of Dookhram is evidence for and against the Crown and for and against Dookhram in his defence. For the Crown, the statement is capable of demonstrating what Dookhram did—that is, drive Ordonio to the underground parking lot and pick him up in the general location of the murder—and, circumstantially, what he knew. For Dookhram, it is implicit in the statement that before Ordonio got back in the car, Dookhram had no idea that he was assisting in the murder. If this is believed or leaves the jury in a reasonable doubt, Dookhram would have to be acquitted.
[44] The editing task is to ensure fairness to the Crown, to Dookhram and to Lu all at the same time. Balancing their rights is necessary but by definition imperfect: R. v. Creighton, 1995 138 (SCC), [1995] 1 S.C.R. 858, [1995] S.C.J. No. 30 (S.C.C). For the Crown and for Dookhram’s defence, Dookhram’s reference to what Ordonio told him and the circumstances in which he told him is crucial. Mr. Cedro’s position that he wants the unexpurgated Dookhram statement to go in is of major weight on this application. Fairness to Dookhram acts as a counterbalance against editing to protect his co-accused Lu.
[45] The statement can be used, in the broadest sense, to infer what Dookhram knew before the deceased was killed. As it is not going in to establish the truth of what Ordonio said, it should not be labelled as “hearsay.” Of course, a finder of fact could fall into the error of using it for its truth. That risk will be substantially reduced by the fact that Ordonio is not before the court and is not being tried along with the other two accused. Furthermore, a limiting instruction mid-trial and in the charge will have to be crafted to ensure the jury knows how they can use and not use this evidence. Counsel will be expected to assist in the process of containing this evidence and developing an effective limiting direction.
[46] For this reason, I disagree with the submissions aimed at editing out the “hearsay” in Dookhram’s statement. It goes to Dookhram’s state of mind and is admissible for this purpose. With respect to the evidence incriminating Mr. Lu, most of Dookhram’s references in the statement are based on what he saw Lu do and his interaction with Ordonio. Again, this goes to Dookhram’s state of mind and the critical issue of knowledge. I would not edit these portions out either.
[47] On several occasions, Dookhram ruminates on whether Ordonio and the Chinese guy (Eric) were in on it together: see e.g. Part 1, pp. 201-202. I contemplated redacting this as it could be said to be of no relevance to the live issues at trial and to be prejudicial to Lu. However, I think that would be a mistake as it will not be given much if any weight by the jury towards proving Lu’s guilt. On the other hand, it could be of substantial importance to both the Crown and the defence case with respect to Dookhram. In the larger scheme of things, the risk of jury misuse against Lu is relatively low. A limiting instruction can diminish the potential prejudice still further.
[48] Although I have no note that it was argued, there are several instances in which Dookhram hints that he is concerned for his own safety: see Part 1, p. 200, Part 2, pp. 151-155. I am concerned whether this should go to the jury. This should be discussed with counsel. On another topic, at p. 131 of Part 2, there is reference to the stabbing in November 2014. I have concerns—of even greater importance with respect to the next portion of this ruling—with respect to evidence being led with respect to the previous assault on the deceased in November of 2014. This should be discussed with counsel as well.
[49] There may be other matters that should be edited out. I am open to hearing further submissions with respect to references in Dookhram’s statement about what Ordonio told him about what “Eric” did. Otherwise, the defence application is dismissed.
THE THIRD-PARTY SUSPECT APPLICATION
[50] The defence alleges that there is evidence to suggest that the real killer was Ms. Hsin’s boyfriend, Tim Chiu. Both Justice Coroza and Justice Baltman considered this issue: Justice Coroza in the trial of Ordonio and Dookhram he ultimately mistried and Justice Baltman in the subsequent solo trial of Ordonio.
[51] Justice Coroza held in his January 23, 2019 reasons that there was sufficient evidence to advance Mr. Chiu as an alternative suspect: see para. 28. In my view, by reason of the clear wording of Section 653.1 of the Criminal Code, that conclusion is binding on me. Although the provision grants me a limited discretion to diverge from decisions in cases that have been previously mistried, I would not do so in this instance. The Crown did not argue that I should. Nor do I see any reason to do so. Applying the third-party suspect case law, I agree with Justice Coroza’s reasons and his conclusion: see R. v. Grant, [2015] 1 S.C.R. 475, 2015 SCC 9 (S.C.C.), at paras. 20-21; R. v. Grandinetti, 2005 SCC 5, (2005), 191 C.C.C. (3d) 449 (S.C.C.), at paras. 46-48.
[52] After ruling that Chiu was a viable third-party suspect, Justice Coroza left open the question of the admissibility of some of the third-party suspect evidence. He held that some of it was challengeable as hearsay. In the course of this finding, Justice Coroza noted the relaxation of the hearsay rule in favour of the defence following R. v. Williams (1985), 1985 113 (ON CA), 50 O.R. (2d) 321, 18 C.C.C. (3d) 356 (Ont. C.A.) and R. v. Caesar, 2016 ONCA 599, 339 C.C.C. (3d) 354 (Ont. C.A.), at paras. 78-80. Furthermore, Coroza J. opined that if hearsay, it may be admissible under the principled exception to the hearsay rule.
[53] In the circumstances, I am left only the task of managing the admissibility of the proposed hearsay evidence. The non-hearsay evidence which the defence may lead through cross-examination of Chiu and through other witnesses if they choose--and assuming for the moment that it is not collateral--is:
i. Chiu had motive to commit murder. Before meeting the deceased, he was struggling to say afloat financially. He benefited materially from their relationship, becoming a part-owner of the deceased’s Relaxology massage and wellness centre in Milton, and driving her luxury cars. She paid for his rent, groceries and gas. It is arguable that he wanted the deceased out of the way so he could take over her store. This is what happened in the aftermath of her death.
ii. Between Ms. Hsin’s death around April 8, 2015 at 4:30 p.m. and when her body was found on April 10, 2015, Chui changed the locks on the Milton store. Madam Justice Baltman allowed questioning along these lines in Justine Ordonio’s trial.
iii. Chui’s alibi that he was at the store at the time of Ms. Hsin’s death cannot be confirmed by other witnesses.
iv. Chui’s cell phone records show that his phone was turned off during the likely time of the murder.
v. Chui lied to the police about his second cell phone and was reluctant to have the police inspect his other cell phone.
vi. Through the deceased’s mother, there was evidence that Chui may have taken the deceased’s keys to her condo and the underground lot in which her car was parked. The mother and the deceased’s brother believed that Chui had a key fob to the deceased’s BMW in which she was killed.
vii. A set of keys belonging to the deceased with her condo and car key on it was found in the Milton store about two weeks after her death.
viii. Chui dyed his hair after the killing.
[54] There is frequent reference in the defence application to the incident of November 2014 in which the deceased was stabbed by an unknown person and was hospitalized. The defence wishes to point the finger at Chui as the culprit, leading to the inference that he is also responsible for the murder several months later. This is a delicate subject and will have to be discussed with counsel. If the defence desire to implicate Chui in the November attack, it is conceivable that the Crown may request that they be permitted to attempt to implicate Lu in evidence or argument as the perpetrator of that attack: see Concise Summary of the Attempt Murder PR14-0614773. Before embarking down this road, with its obvious dangers, a discussion with defence and the Crown is necessary. It is important to go into this with open eyes.
[55] There is also some evidence said to implicate Chui as an alternative suspect in the form of hearsay. About a month before the murder, the deceased attended a meeting with Eric Li and Emma Qian at a restaurant. Qian and Li had invested $40,000 in the Milton Relaxology store owned by the deceased. Unbeknownst to the deceased, Qian recorded the conversation. In her ruling at para. 7, Justice Baltman summarized the important facets of the deceased’s references to Chiu in this conversation:
• "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."
[56] The Crown points out that the deceased was,
… meeting with two people who in her mind have caused great difficulty to the business that she works for, and they intend to speak to the police. Theresa says she will end the business if they choose to report. The natural inference is that she is simply agreeing with sentiments expressed by Emma and Eric to try to convince them of the folly of their potential course of action.
[57] Along these same lines, Justice Baltman concluded that this was a confrontational meeting called by the deceased’s disgruntled business partners, the deceased was guarded and strategic throughout the meeting, and the deceased consistently contradicted herself. She never expressed fear of Chiu and said she is not afraid of him: see paras. 11-15. Justice Baltman held that this evidence was unreliable, hence inadmissible.
[58] There is other hearsay as well which I would place in the same general category as the restaurant discussion. Emma Qian told the police after the murder that when she visited Theresa in the ICU after the November 2014 knife attack, "she [Theresa] 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." Justice Baltman held that this statement was ambiguous and that Theresa was in significant pain at the time. In the restaurant conversation, Theresa says that at the time of this hospital conversation, she could not hear, and she was wearing an oxygen mask (which was true).
[59] The last set of statements is narrated by Maria Hsin, the deceased’s mother. She said that after the November stabbing incident, "Theresa 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."
[60] At the preliminary hearing, Maria testified that after the November incident, Theresa told her that when she and Chiu were together they had frequent arguments, she was not going to marry him, she was afraid of him and that they had separated at the time of the November incident. There are good arguments to conclude that the fear she mentions is not fear of physical harm.
[61] I will analyze the hearsay statements as one group. I agree generally with Justice Baltman’s factual observations but not with her legal conclusion of inadmissibility. In my view, the starting point should be that this evidence is for the purpose of detailing the relationship between the deceased and Chui in order to bolster arguments that he had motive as an alternative suspect to commit the murder. The evidence fits into the traditional hearsay exception for state of mind and, emanating from that status, is circumstantial evidence pointing at Chui.
[62] The deceased’s state of mind with respect to the accused was ruled admissible for this same purpose in R. v. Griffin 2009 SCC 28, [2009] 2 S.C.R. 42 (S.C.C.). Justice Charron for the majority said,
59 … As this Court stated in Starr, declarations of present state of mind are admissible under the traditional exception to the hearsay rule where the declarant’s state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion (para. 168).
63 The connection between a deceased’s state of mind and that of an accused arises by virtue of a pre-existing relationship between the two ... That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused’s animus or intention to act against the victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319 (Ont. C.A.), at para. 31. See also R. v. Lemky (1992), 1992 431 (BC CA), 17 B.C.A.C. 71 (B.C.C.A.), aff’d 1996 235 (SCC), [1996] 1 S.C.R. 757 (S.C.C.). This is not to say that a deceased’s state of mind alone is capable of proving motive. Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, a deceased’s state of mind is one piece of evidence that may be relevant to the issue of motive.
64 In the instant appeal, Poirier’s fearful state of mind is probative of the nature of the relationship between he and Griffin in the time period immediately preceding the murder.
[63] Also see R. v. Moo 2009 ONCA 645 (Ont. C.A.), at para. 92, leave to appeal dismissed [2010] S.C.C.A. 152; R. v. Candir, 2009 ONCA 915, [2009] O.J. No. 5485 (Ont. C.A.), at paras. 51-58, leave to appeal dismissed [2012] S.C.C.A. No. 8.
[64] The same holds true in the current situation for the relationship between the deceased and the third-party alternative suspect, Chui. Evidence that demonstrates the nature of their relationship, a relationship with some degree of distrust and antagonism on the part of the deceased, is evidence of state of mind and is admissible as a traditional hearsay exception towards demonstrating Chui’s motive: Griffin, at para. 59. Furthermore, statements from which an inference of state of mind may be drawn are not classified as hearsay: Candir, at para. 56.
[65] The admissibility of this evidence as a state of mind hearsay exception is open to criticism on the ground that the deceased’s utterances were made in circumstances of suspicion that could cast doubt on whether they accurately represented the deceased’s true state of mind. This, beginning with Starr, has been a disentitling condition: Griffin, at para. 59; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.) per Iacobucci J., at paras. 168, 178-179 but see McLachlin C.J.C. dissenting at paras. 6-9 in which she criticized injecting circumstances of suspicion as a factor on admissibility.
[66] The presence of circumstances of suspicion was the essence of Justice Baltman’s reasons for concluding the evidence at issue here was inadmissible. In my view, despite its weaknesses, taken in the full context of the admissible evidence on this issue, it is sufficiently reliable to clear the admissibility threshold.
[67] The circumstances of suspicion in this instance were not nearly as powerful as they were in Starr. I am not concerned that they are sufficient to undermine reliability. Furthermore, there are two additional factors developed in the context of the principled exception to the hearsay rule which bolster the reliability of the evidence. The traditional hearsay exception can be supplemented by the principled approach. As Justice Iacobucci said for the majority in Starr, at para. 107,
The ... appropriate approach is to seek to derive the benefits of certainty, efficiency, and guidance that the [traditional] exceptions offer, while adding the benefits of fairness and logic that the principled approach provides.
[68] The recording of the restaurant conversation confers some degree of procedural reliability: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 (S.C.C.), at paras. 27-28. More importantly, in terms of substantive reliability, Bradshaw emphasizes the importance of evidence corroborating the material aspects of the hearsay statements. Here, there is corroboration for material parts of the deceased’s statements made in the restaurant meeting.
[69] The material parts of the statement, in very general terms, are that Ms. Hsin distrusted Chiu and that there were financial tensions between them. The deceased may have felt that Chui was a bad man. There was a concern that he would use the store as a brothel for his own purposes. On the other hand, the non-hearsay evidence elucidating Chui’s financial motives, as explained above, is admissible at the behest of the defence. Some degree of antagonism between the deceased and Chui can also be gathered from the non-hearsay evidence. Viewed in this light, little in the restaurant conversation breaks new ground thematically. A foundation for it was laid by the non-hearsay evidence and the non-hearsay evidence corroborates it to some degree in the sense referred to in Bradshaw.
[70] I would rely on a second factor. Given that this is defence evidence, the Williams and Caesar cases confer the right to relax the strictness of the hearsay admissibility conditions: also see R. v. F. (G.), (1999) 1999 3684 (ON CA), 132 C.C.C. (3d) 14, 43 O.R. (3d) 29 (Ont. C.A.), at para. 49. I would apply the Williams discretion in this case. The non-hearsay evidence is relevant and admissible; the hearsay evidence is supplementary to it and partakes of the same general theme.
[71] With all of the hearsay statements, limiting instructions based on the hearsay dangers, the lack of cross-examination of the declarant and the proper use of the statements by the jury will be necessary: see R. v. Candir, at paras. 66-68, 86-90; R. v. Li, 2012 ONCA 291, [2012] O.J. No. 1989 (Ont. C.A.), at paras. 63-71.
[72] In conclusion, given that the evidence qualifies under the traditional exception for state of mind but arguably is unreliable because of suspicion being present, considering the corroboration of material aspects found in the non-hearsay evidence, and relying on the discretion to relax the strictness of the hearsay exception, I find the evidence is admissible. I leave to the trial any issues which might arise with respect to the manner and method by which this evidence will be adduced.
D. E. HARRIS J.
Released: July 13, 2021