COURT FILE NO.: CR-17-00675-00
DATE: 20211012
ONTARIO
SUPERIOR COURT OF JUSTICE
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 and Kendra Stanyon for the Defendant Dookhram
Heard: September 27, 2021
PRE-TRIAL RULINGS
D.E. HARRIS J.
[1] This ruling deals with further pre-trial rulings in this matter, building on my previous rulings: see R. v. Lu, 2021 ONSC 4920. The subjects are the editing of Mr. Lu’s two statements to the police dated May 1, 2015 and November 11, 2015, further submissions with respect to editing Mr. Dookhram’s police statement dated October 8, 2015 and the issue of Mr. Lu’s application for severance.
I. THE EDITING OF MR. LU’S TWO STATEMENTS
[2] Mr. Lu’s statements were previously ruled admissible by Madam Justice Baltman, with the exception of a portion in the November 11, 2015 statement, in her ruling at R. v. Lu, 2015 ONSC 3104.
[3] Ms. Freeman’s submissions with respect to editing of Mr. Lu’s statements can be grouped under several heads:
a) References to Mr. Lu’s homosexuality and to his partner, Mitchell.
b) Comments by the interviewing officer, Cst. Heyes, suggesting that anyone who knows about the murder is guilty of the crime.
c) Statements by the officer that he does not believe Mr. Lu.
d) Asking Mr. Lu about the credibility of another witness.
e) Suggestions that Mr. Lu’s grandmother believed that Mr. Lu was capable of killing his mother (her daughter) and had, in fact, done so.
THE IDENTITY OF MR. LU’S PARTNER AND EVIDENCE THAT MR. LU IS GAY
[4] This submission must be set against the backdrop that Crown and defence are agreed on a challenge for cause question to ferret out those potential jury members with an anti-gay bias that they are incapable of setting aside. A jury instruction will also be given to counter the potential for anti-gay bias. I should also add that although anti-gay bias is serious, the specific concern is that moral disapprobation of Mr. Lu could encourage the jury to convict him of first degree murder or, to put it another way, whittle down the presumption of innocence and the necessity of proof beyond a reasonable doubt. While that must be guarded against at all costs, it is somewhat less virulent a type of bias than anti-Black racism which presupposes that Black men are more likely to commit crimes, especially crimes of violence.
[5] In full context, I do not believe that conversation with the officer about Mitchell and Mr. Lu’s homosexuality has any real potential to ignite significant anti-gay sentiment. On the other hand, cutting out those references – of which there are quite a few – could well distort the meaning and cohesion of the two statements.
[6] I do not see this as a pressing issue. The prejudice is minimal as is the probative value. In the end, the probative value wins out. Ms. Freeman’s compromise offer of entering into an agreed statement of fact on the subject does not significantly change the disruption of flow and coherence which would be caused by the excisions.
COMMENTS BY THE INTERVIEWING OFFICER
[7] Cst. Heyes suggested several times that knowing about a crime can make one guilty of it. Of course, this is blatantly incorrect. But I do not think the jury will take these statements seriously but rather, more likely, will see them as attempts to manipulate Mr. Lu. There is no realistic chance that the jury will act on the short, vague statements of law from Cst. Heyes in preference to those statements of law they will get orally and in writing from me.
STATEMENTS FROM THE OFFICER THAT HE DID NOT BELIEVE MR. LU
[8] There was some gamesmanship, including the use of the Reid technique, in the interview. This is common in interviews with the police and the jury will not be perturbed by what the officer says with reference to his belief that Mr. Lu was not being straight with him. A limiting instruction with reference to the officer’s erroneous statement of the law can include a brief reference to the irrelevance of his opinions with respect to Mr. Lu’s veracity.
INVITATION TO MR. LU TO COMMENT ON THE CREDIBILITY OF OTHER WITNESSES
[9] Ms. Freeman says that since it could not be asked in court, it should not have been asked by the officer and should be excised. The reason the question cannot be asked of an accused in court is because it tempts the finder of fact to reverse the burden of proof: see Markadonis v. R., 1935 44 (SCC), [1935] 3 D.L.R. 424, [1935] S.C.R. 657 (S.C.C.); R. v. H. (R.), 2013 ONCA 126, [2013] O.J. No. 871 (Ont. C.A.).
[10] There is authority to support the position that the same question in a statement to the police is similarly inadmissible. In R. v. C. (F.), 1996 623 (ON CA), 104 C.C.C. (3d) 461, the Court of Appeal said,
25 The appellant's statement to the police made following his arrest was reduced to writing and introduced in evidence by the Crown. It was conceded at trial that the statement was made voluntarily. It contained the following questions and answers.
Q. Frank, the allegation that you have sexually abused D. [the complainant] is a serious one. If what you say is true, give us an explanation as to why D. is saying this about you?
A. I don't have a clue.
Q. D. has told a number of people about this. Many believe him. Why would they believe him.
A. He's been left at home with other kids. Lucille has a wife beater for a brother. She is a drug addict. He didn't have a good atmosphere for a kid. His parents are separated. They always used to fight. Whenever I saw D. all he would do is watch T.V. I don't know why he would say me.
26 There was no objection taken by the defence at the trial to either of the questions and answers being put before the jury. In my opinion, neither should have been put before the jury. Neither question could properly be asked of the accused in the cross-examination. Each question calls for him to give a reasoned or persuasive argument with a possible adverse inference if he fails. The second question put before the jury, the fact that many, probably the police investigators, believed the child, was not only irrelevant but highly prejudicial. The questions and the answers had no probative value and no doubt served only to provide the basis for some attack on the appellant's credibility.
[11] That is a far more serious example, obviously, than occurred in this case. Here it involved the veracity of an ordinary witness, Tyler Bichel, not the alleged victim as was the case in C.F. Although this type of question in an interview is not invariably prohibited, the safer course is to excise it in this case. That relates to pp. 377-378 of the May statement of Mr. Lu.
REFERENCES TO HIS GRANDMOTHER’S OPINION THAT MR. LU KILLED THE DECEASED AND THAT SHE WAS AFRAID OF MR. LU
[12] This is interwoven with other evidence of the maternal grandmother quoted and paraphrased by the officer during the interview. In the one passage attacked by the defence, the grandmother is said by the police officer to have stated that she thought Mr. Lu was capable of killing his mother and that she thought he and his dad “did it”. i.e. committed the murder.
[13] The grandmother’s statement that she believed Mr. Lu had killed his mother, the grandmother’s daughter, as summarized in the officer’s questions, will have a significant impact on the jury. For the proverbial man on the street to believe that Mr. Lu is guilty is one thing; for the grandmother to believe it is another. It is particularly poignant coming from a close family member.
[14] We all believe that family members have special means of insight into the goings on within the family unit. It is often hard to say where this comes from in a particular case, whether it be first-hand knowledge, gossip or intuition. In any case, it is reasonable to assume the jury will put stock in the grandmother’s opinion. And, ultimately, if your grandmother believes you are guilty, you probably are.
[15] Of course, the grandmother’s recycled words could never be testified to in court by her as they are opinion, not fact. What she said as repeated by the officer is grossly inadmissible. That the grandmother’s opinion is contained in a statement by the officer and is not directly from the grandmother’s mouth does not change its toxic nature. Nor is what Mr. Lu says in response to the officer’s questions in this regard of any real value. If he confessed in answer to these questions for example, needless to say, that would be quite a different matter. But there is nothing of particular note to assist the Crown in Mr. Lu’s responses.
[16] In total, the police officer’s questions – including the grandmother’s opinion and Mr. Lu’s answers – have virtually no probative weight and generate only prejudice. These passages must be edited out. The fear of Mr. Lu expressed by the grandmother should also be removed. Counsel should endeavour to extricate this from the other parts of references to the grandmother’s statements in these passages at pp. 424-429 and pp. 443-445.
II. THE EDITING OF MR. DOOKHRAM’S STATEMENT
[17] At one point, Mr. Dookhram in his statement expresses that he feels fear for his life and is intimidated. He says at page 153 of the interview,
Just like when I heard triads, you know like my videogame idea of it is like just a bunch of like Chinese or Asian guys in black cars, you know, every time I would see like black cars pull up somewhere I would just get scared.
[18] Ms. Freeman, for Mr. Lu, says the passages on pp. 152-153 should be edited out. Mr. Cedro for Mr. Dookhram submits that these parts of the statement should remain.
[19] The dilemma in this instance is choosing between the prejudicial impact on Mr. Lu, who is Chinese, and fairness to Mr. Dookhram, in permitting the jury to appreciate the full context and content of his statement.
[20] As his statement continues, Mr. Dookhram reveals more and more of his involvement and what he knows. The Crown might point to this slow reveal as demonstrating his guilt. However, this piecemeal exposure of the truth could be at least partially attributed to the fear and intimidation Mr. Dookhram refers to in these two pages. Excising it will somewhat narrow the jury’s view of the full picture.
[21] The association of Mr. Lu with the triads, that is, Asian organized crime, is obviously prejudicial as is Mr. Dookhram’s fear of him and of Ordonio. However, I do not believe that the jury will take the reference to triads seriously and the fear expressed is also not a major motif. It must be seen in the context of Mr. Dookhram being put on the spot for his role in the death of the deceased during a lengthy, incriminating interview with a police officer. Furthermore, a curative instruction to say there is no evidence whatsoever that Mr. Lu has anything to do with triads could possibly be given to the jury, depending on counsel’s wishes. On the whole, fairness to Mr. Dookhram must supersede the minimal, fleeting prejudice to Mr. Lu. This portion of the statement should remain.
III. MR. LU’S APPLICATION FOR SEVERANCE
[22] I dismissed this application at the hearing. This is not a case with classic antagonistic defences between Mr. Lu and Mr. Dookhram. Similarly, neither accused would want to call the other accused at trial. Their roles alleged by the Crown are distinct. Mr. Lu cannot realistically point at Mr. Dookhram as being the perpetrator of the offence in order to avoid a finding of guilt. Mr. Dookhram’s likely defence will be, as touched on in the last ruling, that whatever he did was without the knowledge that he was participating in a murder plot.
[23] The preference for joint trials for accused alleged to be acting in concert or as parties to the offence is strong and is not significantly countered by other considerations in this case: R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384 (S.C.C.) at paras. 47-48; R. v. Last 2009 SCC 45 [2009] 3 S.C.R. 146 (S.C.C.) at paras. 16-18, 33.
[24] The only real concern with respect to prejudice from a joint trial are the references in Mr. Dookhram’s statement to Mr. Lu and his involvement. This was the subject of discussion in the last ruling in the context of the application to edit the statement. I will not repeat that here. In my view, the prejudice to Mr. Lu is manageable and will be the subject of mid-trial instructions to the jury.
[25] The preference for joint trials both as the superior method to get at the truth and the balance of convenience in terms of delay and efficiency is not rebutted here, Mr. Lu’s offer to waive Section 11(b) notwithstanding. It has been six years since the accused were arrested. This joint trial must go on. For these reasons, the application was dismissed.
D.E. HARRIS J.
Released: October 12, 2021
COURT FILE NO.: CR-17-00675-00
DATE: 20211012
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ERIC LU
- and -
MARK DOOKHRAM
PRE-TRIAL RULINGS
D.E. HARRIS J.
Released: October 12, 2021