RULING ON RE-OPENING STATEMENT VOIR DIRE

D. E. HARRIS J.

[1] Counsel for Mr. Lu applied in a pre-trial application to re-open a statement voir dire in which a statement he made to the police was held admissible by Baltman J. (R. v. Lu, 2019 ONSC 3104). I dismissed the application at the time and now write these reasons to explain the decision.

[2] Mr. Lu is charged with the first-degree murder of his mother, Teresa Hsin. He gave a series of statements to the police, culminating in a May 1, 2015 statement to then Detective Mark Heyes of the Peel Regional Police. Justice Baltman, as the case management judge, held that Detective Heyes did not violate ss. 10(a) or (b) of the Charter of Rights and Freedoms and that the statement was voluntary under the common law. She ruled the statement admissible.

[3] Counsel for Mr. Lu argues that fresh evidence now available sweeps away the footings of Justice Baltman’s ruling and requires a new voir dire be held. I cannot accept that argument. The fresh evidence could not possibly have made any difference to the outcome of the voir dire. Furthermore, the evidence tendered is not fresh or new; it was before Justice Baltman originally.

Justice Baltman’s Ruling

[4] Mr. Lu’s mother was murdered April 8, 2015 and Mr. Lu was arrested on November 11, 2015. He gave several police statements prior to arrest. The one in issue here was made to Detective Heyes on May 1, 2015 and was the most important of all the statements to the Crown’s case.

[5] Justice Baltman recounted in her ruling that Mr. Lu was asked to come into the police station. The statement was very long, in the neighbourhood of 10 hours. Justice Baltman rejected the argument that Mr. Lu was tricked into attending the station under the pretext of providing him with an “update.” She held that in any case, any trickery involved was within permissible bounds, citing R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.

[6] Justice Baltman went on to make several findings:

Sections 10(a) and (b) of the Charter

a) Mr. Lu attended the police station voluntarily. He was not detained under s. 10 of the Charter.

b) Even if he was detained, he received his rights to counsel from Detective Heyes and understood them. When advised of his rights and responding ambiguously, Detective Heyes advised Mr. Lu that he was not arrested or detained but had the right to speak to a lawyer anytime he wished. Mr. Lu said he had spoken to a lawyer back in November 2014 when there had been an earlier attack on his mother. This was a reference to evidence which is now advanced as fresh evidence. In the dialogue with Detective Heyes, Mr. Lu expressly declined the opportunity to avail himself of counsel.

Voluntariness

c) Mr. Lu was not tricked into believing it was a police update he was coming in to hear; he was told that it was to “review some information.”

d) Detective Heyes was quite clear from the outset when he asked Mr. Lu directly whether he killed his mother. Mr. Lu responded that he did not. Detective Heyes also told Mr. Lu that if he was responsible for his mother’s death, he could be charged with murder.

e) By his own account in the interview, Mr. Lu knew he was a suspect back in November 2014 when his mother was first attacked. In the May 1, 2015 interview he said at several points that he was aware the police thought he was involved in his mother’s death.

f) Justice Baltman held that the police do not need to caution a suspect who is not detained, but Detective Heyes did in any case.

g) Detective Heyes told Mr. Lu on two occasions that he did not have to talk to him or say anything if he did not want to. When Mr. Lu said that he had already talked to other officers, Detective Heyes warned him that he was not obligated to talk to him about what he talked to the other officers about. Whatever he did say could be used against him in court.

[7] For these reasons, Justice Baltman dismissed the Charter application and held that the statement had been proved voluntary by the Crown.

The Fresh Evidence

[8] In essence, the fresh evidence advanced by way of an affidavit from Mr. Lu is that the person Mr. Lu had spoken to in the past was not in fact a lawyer but rather a former lawyer. He had been disbarred in 1993. He had no experience in criminal law. After being disbarred, he worked as a paralegal. When paralegals were required to be licenced, he applied but was denied. An affidavit from the paralegal advanced on this application confirms these facts.

[9] The Applicant Lu attests in his affidavit that at the time of the interview, he had no understanding of the distinction between a lawyer and a paralegal and did not know about the various fields a lawyers can specialize in. He did not speak to a lawyer before going in for the interview with Detective Heyes. Mr. Lu did not believe he was a suspect at this point in time.

The Legal Test for Re-Opening in s. 551.3(4)

[10] When she ruled on the statement, Justice Baltman was presiding over the pre-trial motions as a case management judge. The Criminal Code, (R.S.C., 1985, c. C-46) permits that prior rulings of a case management judge may be revisited at trial if doing so is “in the interests of justice.” Section 551.3(4), which is in the case management part of the Code, reads,

A decision that results from the exercise of the power referred to in paragraph (1)(g) [the adjudication power] is binding on the parties for the remainder of the trial — even if the judge who hears the evidence on the merits is not the same as the case management judge — unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced.

[11] The “interests of justice” phrase is exceedingly broad. In R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.), Doherty J.A. commented on the breadth of the same clause in s. 684(1) of the Code which gives the Court of Appeal authority to appoint counsel on an appeal. He said,

The phrase "interests of justice" is used throughout the Criminal Code. It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case by case basis. The interests of justice encompass broad based societal concerns and the more specific interests of a particular accused. [Emphasis added.]

[12] The same “interests of justice” phrase is used in the related context of s. 653.1 of the Code which makes pre-trial rulings in a case that is later mistried presumptively binding on a subsequent trial judge: R. v. Victoria, 2018 ONCA 69, [2018] O.J. No. 710; R. v. Beals, 2022 ONSC 2574.

[13] Fresh evidence, unlike in s. 653.1, is specifically mentioned in s. 551.3(4). The application to reopen could be based on “other considerations” as well. But the case at hand relies on fresh evidence to support the application to re-open.

[14] As in other contexts, the “interests of justice” phrase was a deliberate choice by Parliament to embrace any evidence or argument sufficient to justify departing from a prior trial judge’s ruling. The Court of Appeal in Victoria at paragraph 55 prepared a long non-exhaustive list of the type of matters that could be included under s. 653.1. A similar list could be compiled with respect to s. 551.3(4).

[15] Section 551.3(4) has the same structure as s. 653.1. The prior ruling is presumptively binding; the presumption is rebuttable, but no standard is articulated. The open list of matters capable of rebutting the presumption, in conjunction with the interests of justice standard, gives the presiding judge a particularly open-ended discretion.

[16] The rationale behind the presumption is efficiency and judicial economy, critical values in modern day criminal justice. Justice Watt said in Victoria at para. 49,

[Section 653.1] represents a parliamentary determination to limit or minimize the consequences of a mistrial on court resources by restricting relitigation of certain issues determined in the prior proceedings.

[17] I said in Beals, at para. 22,with respect to s. 653.1:

The purpose of s. 653.1 is to promote economic use of court time, efficiency, judicial comity and to protect interests akin to the rule against collateral attack. In a post-Jordan world, those gals have taken on renewed urgency. Re-litigation can be very time consuming and often is of little or no benefit.

[18] The same is true of s. 551.3(4). It is no exaggeration to say that the case management system in criminal cases is now indispensable to the functioning of the trial docket in Ontario. While it might be preferable from the point of view of institutional continuity to have the same judge stay with a case from the pre-trial motion stage right through the trial, this is often not feasible. The crush of cases-- their length and complexity—often preclude a one-judge solution to cases with a significant pre-trial component.

[19] The case management system permits cases to be broken into several segments. The pre-trial segments and then the trial can be presided over by different judges. This facilitates the scheduling of pre-trial motions and applications and the trial. Wasted time in waiting for the trial judge to become free is minimized. Piecemeal hearing of pre-trail applications allows the judicial work for each matter to be packaged into more compact time allocations, fitting the segments neatly together and preserving valuable judicial resources.

[20] In present day criminal procedure, a system without case management and the separation of pre-trial work from trial work would be untenable. In the Central West Region, an already badly overburdened system would collapse into chronic delay and regular Jordan stays.

[21] In this environment, issues previously decided should not be reargued without good cause. The system cannot bear redoes without a persuasive justification. As a result, as there was in this case, there should be a hearing in which leave is sought to embark on a full reconsideration of the previous decision. This hearing was less than a half day but ideally a s. 551.3(4) application ought to be considerably shorter.

[22] The leave requirement acts as a crucial safeguard to channel and narrow the breadth of s. 551.3(4). Several aspects of the discretion to be exercised are relatively clear. Key is that there be very substantial deference to the previous ruling. It would be clearly inappropriate for a trial judge to substitute his or her discretion for that of the case management judge. It is obvious that the standard of review for overturning a case management decision cannot be correctness. That would encourage re-litigation and initiate a potentially endless cycle of revolving judicial consideration. In exercising the s. 551.3(4) discretion, a judge must also be cognizant that if convicted or acquitted, the losing party will have appellate remedies available to them.

[23] The discretion to arrive at a result different than the case management judge will come into play where there is new and fresh evidence, an obvious and demonstrable error of law or a clearly inappropriate decision: see by analogy R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 139; s. 686(1)(a) of the Criminal Code.

[24] Procedurally, an application ought to be determined largely on a written presentation with oral argument as a means to highlight and complement the applicant’s position. To protect the system and to ensure timely resolution of cases, in a s. 551.3(4) application, a judge has the power to summarily dismiss the application if there is no reasonable prospect of success: Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, Rule 34.02.

The Fresh Evidence Test

[25] In this instance, the defence relies on fresh evidence, a basis explicitly referred to in s. 551.3(4). The Applicant Lu argues that the fresh evidence adduced requires a reassessment of the prior ruling. There is no direct attack made on the previous ruling of Justice Baltman.

[26] To build the analytic framework for this application, it makes logical sense to borrow from the fresh evidence jurisprudence with respect to criminal appeals. This is what the Supreme Court did in the bail review decision in St. Cloud, at paras. 122-138. The fresh evidence test from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775 was adapted to fit the bail context. The same approach should be used under s. 551.3(4) of the Code.

[27] The four-part test as it appears in R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at para. 50, is,

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial...

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[28] There may well be some differences of approach between the due diligence requirement for appellate review of a conviction or acquittal and the s. 551.3(4) discretion. Finality on appeal may well be a more pressing value than finality of a ruling by another judge during the trial stage.

[29] As a comparison, however, finality is much less important in the ever changing, fluid context of a decision whether to release an accused on bail: St. Cloud, at para. 130; R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673 (C.A.), at paras. 52-53; R. v. Saracino, 1989 CanLII 7197 (ON SC), [1989] O.J. No. 28, 47 C.C.C. (3d) 185 (S.C.J.), at para. 17. In the bail review context, the Supreme Court has said, in effect, that with a change of circumstances, due diligence will rarely be a factor in defeating a review application: St. Cloud, at para. 134.

[30] It is enough to say that in the present case, there is a strong societal interest in not allowing a “second kick at the can” without good and sufficient reason. The case management process in criminal matters must be protected. But it must yield in appropriate circumstances to ensure trial fairness. The comments of the Supreme Court in Warsing, at para. 51, are apropos:

It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.

Application of the Fresh Evidence Test

[31] The main issue which arises in this instance revolves around the fourth element of the fresh evidence test. Paraphrasing that part of the test, the evidence, when taken with the other evidence adduced at the original voir dire, must be shown to be capable of affecting the ruling dismissing the Charter application and the holding that the statement was voluntary.

[32] The Applicant fails to clear this hurdle. On the Charter s. 10 issue, Justice Baltman held that because the Applicant was neither arrested nor detained, he had no constitutional entitlement to counsel. Therefore, the evidence adduced to show that Mr. Lu did not have advice from a lawyer before going into the interview but only from a paralegal could not conceivably have made any difference to the result.

[33] Justice Baltman held in the alternative that even if Mr. Lu was detained, he was in any case given the informational component of his right to counsel and, despite fully understanding the right, chose not to exercise it. Again, that Mr. Lu did not have advice from a lawyer could not have any effect on the judicial decision that the informational component was properly given but, despite being understood, was not invoked.

[34] With respect to voluntariness, the fresh evidence could also not benefit the accused given the findings that were made. No case law was presented for the proposition that a statement may not be voluntary when a person does not speak to a lawyer before going in to talk to the police.

[35] Justice Baltman’s conclusions that Mr. Lu knew he was a suspect and that he was not tricked in any way within the confessions jurisprudence were not challenged. Nor was her finding that Detective Heyes properly gave the primary and secondary police cautions. Although the argument and decision on this application were rendered prior to the Supreme Court’s requirement that police officers inform detained individuals of their right to silence (R. v. Tessier, 2022 SCC 35), Detective Heyes complied with this requirement.

[36] It is difficult to see how the evidence now relied upon by the Applicant Lu could demonstrate a quid pro quo or any kind of inducement, the most common way to raise a doubt about the voluntariness of a statement: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.

[37] Nor could it have affected voluntariness under any other ground. A recent comprehensive summary of the values behind the confessions rule can be found in Kaiser J.’s opinion in Tessier, at para. 51:

[T]he confessions rule, the right to silence and the right to counsel are together concerned with “preserving for the suspect the right to choose” and whether “the action of police authorities deprive[d] the suspect of making an effective choice by reason of coercion, trickery or misinformation or the lack of information”.

And at para. 70:

70 The [confessions] rule is animated by both reliability and fairness concerns, and it operates differently depending on context. As Iacobucci J. explained in Oickle, while the doctrines of oppression and inducement are primarily concerned with reliability, other aspects of the confessions rule, such as the presence of threats or promises, the operating mind requirement, or police trickery, may all unfairly deny the accused’s right to silence (paras. 69-71; Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at pp. 682-83 and 688, per Lamer J.; Hebert, at pp. 171-73; Whittle, at p. 932; R. v. Hodgson 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at paras. 21-22; Singh, at para. 34). A statement may be excluded as involuntary because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence, whatever the context indicates. It may be excluded if it was extracted by police conduct [TRANSLATION] “[that] is not in keeping with the socio-moral values at the very foundation of the criminal justice system” (J. Fortin, Preuve pénale (1984), at No. 900).

[38] There is little to recommend an argument that not talking to a lawyer before voluntarily attending a police interview trespassed on any of these principles or resulted in an unfairness.

[39] The only time Justice Baltman referred in any depth to the evidence about the prior legal advice was within the voluntariness discussion concerning the caution given by Detective Heyes that Mr. Lu did not have to talk to him. In holding that Mr. Lu willingly chose to speak to the police, there was some reference at para. 47 to Mr. Lu having ignored his lawyer’s advice to “shut up.” Substituting a paralegal for a lawyer in this discussion changes nothing. The ultimate decision was that Mr. Lu had no right to a lawyer and, even if he did, he chose not to exercise it. Not having legal advice from a lawyer, therefore, worked no prejudice to him. Similarly, having advice from a paralegal rather than from a lawyer made no difference to the conclusion reached.

[40] The Applicant made one specific submission on how the new evidence could impact voluntariness. Counsel wrote,

…the fact he did not have the benefit of counsel’s advice prior to his interview with Detective Heyes proves he did not have an “operating mind” at the time of the interview.

[41] This argument misconstrues the nature of the operating mind test. In the leading case of R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, [1994] S.C.J. No. 69, Sopinka J. wrote for the Court,

The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest. [Emphasis added.]

[42] The new evidence is immaterial to this issue. It is inconceivable that a reasonable doubt could be raised that the Applicant did not have an operating mind based on the evidence now raised or on the other evidence in the record.

[43] It is further argued by the Applicant that the interviewing officer’s tactics violated the right to silence in s. 7 of the Charter. From reading Justice Baltman’s decision, it appears that a s. 7 argument was not raised at the earlier voir dire.

[44] This argument was however raised before me subsequently by Mr. Lu’s previous counsel at his aborted trial in November, 2021. The issue was abandoned. The argument is effectively precluded by the Supreme Court’s decision in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 8, which held that with respect to confessions, s. 7 of the Charter is the “functional equivalent” of the voluntariness rule. Section 7 does not add anything to what is already intrinsic to the voluntariness concept.

[45] For these reasons, it must be concluded that the fresh evidence could not have affected Justice Baltman’s ruling. That is sufficient to dispose of this application. But there is one further area which requires comment.

The Evidence Involving the Paralegal Is Not New

[46] There was considerable evidence with respect to the paralegal in Mr. Lu’s May 1, 2015 statement to Detective Heyes. Mr. Lu first mentions “Mario”, his paralegal friend, early in the interview (p. 54 of 498 pages) and refers to him frequently thereafter. In two passages, he explicitly admits to understanding that Mario is not a lawyer. The first passage is at p. 76:

HEYES: And then you then talked to your legal advisor, legal consultant.

ERIC: Yeah, I won’t say he’s a lawyer because technically he’s not a lawyer.

HEYES: Okay.

ERIC: But he does give me legal advice.

HEYES: Legal advice?

ERIC: (Nods head yes), that’s why I said like legal advisor you know what I mean.

HEYES: Yeah-yeah that’s fine.

ERIC: Yeah.

HEYES: That’s okay yeah-yeah. As long as you’re satisfied with some of the advice he gives.

ERIC: Yeah.

HEYES: I don’t know if he’s good at it or not.

ERIC: No he’s good that’s why. He’s my mom’s friend since I think college.

HEYES: Okay sure.

ERIC: That’s why we trust him you know.

(Emphasis added.)

[47] The second passage is at pp. 473-474:

ERIC: I, I understand I can find a lawyer.

HEYES: I get it.

ERIC: But you know.

HEYES: But what I want you to understand as well please listen to me…

ERIC: Yeah.

HEYES: …and listen to me carefully. Mario right…

ERIC: Mm-hmm.

HEYES: …he is not a lawyer.

ERIC: No I know. I know. I, I said to you he’s not a lawyer.

HEYES: I know.

ERIC: I said to you.

HEYES: I know you told me that.

ERIC: Yeah-yeah-yeah.

HEYES: But I’m just saying.

ERIC: No I know.

HEYES: But the advice that you may get…

(Emphasis added.)

[48] It is evident from these passages that the paralegal evidence was before the court when the admissibility of the statement was first challenged in front of Justice Baltman. His words in the interview make clear that Mr. Lu was well aware that this person was not a lawyer.

[49] Upon this application, Mr. Lu said at paragraph 10 of his affidavit, “As of May 1, 2015 I did not clearly understand the difference between a ‘lawyer’ and ‘paralegal.’” As I have held above, assuming this is credible, I do not believe that the distinction is material.

[50] The presence of the paralegal evidence in the May 1, 2015 statement makes it clear that what is being raised here is not so much new evidence as a new argument. While that is permissible and is encompassed within the broad scope of the “interests of justice”, it is more difficult to mount an effective s. 551.3(4) application based on a new legal argument than on new facts.

[51] In conclusion on this issue, as I have held, the argument is thin. It was available and could have been made originally. That it was not made is one sign of its lack of persuasiveness. Viewed from this perspective, this application appears to be principally an attempt at forum shopping. However, as it has already been concluded that the evidence advanced could not have affected the decision, there is no need to inquire any further into the issue.

[52] These are the reasons this application was dismissed.

D. E. HARRIS J.

Released: November 24, 2022

COURT FILE NO.: CR-17-00000675-0000

DATE: 2022 11 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

and -

ERIC LU

RULING ON REOPENING OF VOIR DIRE

D. E. HARRIS J.

Released: November 24, 2022

R. v. Lu, 2022 ONSC 6578

Case Summary

RULING ON RE-OPENING STATEMENT VOIR DIRE

RULING ON REOPENING OF VOIR DIRE

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 3