RULING ON ADMISSIBILTY OF TEXT MESSAGE

D. E. HARRIS J.

[1] Counsel for Mr. Lu, during the cross-examination of Officer Quashie, applies to admit into evidence a text message from Mr. Lu to Officer Quashie on April 15, 2015. The text inquires whether the police had found any copies of his mother’s life insurance policy when the police executed search warrants on her residence and on the residence of her mother, Maria Hsin. Mr. Lu states in the text that his family has been looking for the policy and has not yet found it. The Crown is opposed to admission, arguing that the evidence is self-serving hearsay.

[2] Mr. Lu is charged with first degree murder in the killing of his mother, Teresa Hsin. He reported her missing to the police at about 9 p.m. on April 8, 2015. It is likely that she was killed that night. She was found stabbed to death in her car on April 10, 2015. Mr. Lu was interviewed by the police the next day, April 9, 2015, and again on April 10, 2015.

[3] At the outset of the April 10, 2015, interview, Mr. Lu is told that his mother’s car has just been found and that there was a person found deceased in the car. Shortly afterwards, the police advised Mr. Lu that the deceased in the car was his mother.

[4] The police interviewed Mr. Lu again on April 11, 201, on May 1, 2015, and, lastly, upon his arrest for the murder on November 11, 2015.

THE LIFE INSURANCE EVIDENCE

[5] The question of the deceased’s life insurance pertains to the issue of motive to commit the murder. Did Mr. Lu stand to benefit from his mother’s life insurance or did he believe that he stood to benefit? The evidence settles definitively the question of whether there was life insurance or not. There was but it was in favour of the deceased’s mother, Maria Hsin. Mr. Lu was not a beneficiary. Mr. Lu’s apparent belief that he was a beneficiary will be the primary focus for the jury on motive. Of course it is possible to have a motive for a crime based on a mistaken set of circumstances.

[6] The life insurance issue is woven into much of the evidence in the trial. It comes up in Mr. Lu’s statements to the police and in the evidence of his aunt (the deceased’s sister, Elise Kwan), his uncle (the deceased’s brother, Ben Hsin), and his cousin, (Jonathan Kwan, Elise Kwan’s son).

[7] The life insurance issue is first raised in the April 10, 2015 statement to Officer Quashie, after the death of Mr. Lu’s mother was confirmed. Mr. Lu volunteers several times without prompting that his mother did not have life insurance.

[8] Similarly, in his interview with Detective Heyes on May 1, 2015, Mr. Lu said that he was not a beneficiary on his mother’s life insurance. Later, in the context of talking about what he had to gain from his mother’s death, Mr. Lu again said that there was no life insurance. He soon clarified that his mother told him that there was life insurance, but he called to check and learned that there was, in fact, no life insurance. He called a “hundred companies.” She thought she had life insurance. But he had life insurance, not her. Finally, towards the end of the interview, Mr. Lu says that his mother had an insurance policy with Manulife in New York with his grandmother as beneficiary.

[9] Contrasting with this and suggesting that Mr. Lu may have been withholding what he truly believed from the police, there is evidence from Jonathan Kwan that Mr. Lu mentioned to him immediately after his police statement on April 10, 2015, that he was the beneficiary on his mother’s one-million-dollar life insurance policy. This was a clear and direct contradiction of what was said to Officer Quashie just minutes before.

[10] There is evidence from both Jonathan and his mother Elise Kwan that the following night, April 11, 2015, there was a family meeting at the grandmother’s condominium at 2 Rean Drive. Mr. Lu repeated to both of them that there was a life insurance policy with him as the beneficiary in the amount of one million dollars. Both witnesses said that this statement was unprompted. Ms. Kwan testified that this surprised her; she had no knowledge of an insurance policy. Ms. Kwan testified that on a subsequent occasion, Mr. Lu said he thought there were three life insurance policies.

[11] Ms. Kwan also testified that between that day and the funeral on April 18, 2015, Mr. Lu asked Ms. Kwan to check the deceased’s condominium to look for an insurance policy. He had not found one himself. Ms. Kwan testified that she looked for a policy and could not find it. Mr. Lu told her that his mother had told him there was a policy after she suffered a prior stabbing attack in November of 2014.

[12] Ms. Kwan agreed that she followed up with Mr. Lu on April 20, asking him if he had found the policy. She testified that she took steps to look for the life insurance policy as well. In her April 21, 2015 statement to the police which she adopted in cross-examination in this trial, Ms. Kwan said that Mr. Lu told her that he had found two policies. One was to the benefit of Maria Hsin, the deceased’s mother, Mr. Lu’s grandmother.

[13] In fact, a policy was found by the grandmother, Maria Hsin, before the funeral. It was in a magazine rack. Eric was not a beneficiary. Maria was the sole beneficiary in the amount of $250,000. The insurance policy from a New York company was entered into evidence as an exhibit.

[14] There was also some evidence from Ben Hsin, the deceased’s brother, about the life insurance issue. In cross-examination, Ben testified that when he was at the police station on April 10, 2015, after the body of Teresa Hsin was found, Mr. Lu told him that there was an insurance policy and that it was for one million dollars.

IS THE TEXT TO OFFICER QUASHIE HEARSAY?

[15] To assess whether the text is hearsay, it is necessary to ascertain the use of the evidence. As Justice Fish said in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520 at para. 36, “No evidence is hearsay on its face… its admissibility depends on the purpose for which it is sought to be admitted. Evidence is hearsay – and presumptively inadmissible – if it is tendered to make proof of the truth of its contents” (emphasis in original). Also see R. v. Bridgman, 2017 ONCA 940, 138 O.R. (3d) 721 at para. 73.

[16] Exploring the evidentiary purpose in Mr. Lu’s text to Officer Quashie, there are two ingredients that can be distilled from it: 1. I am actively looking for the life insurance policy; and, as a necessary adjunct to this, 2. I believe a life insurance policy exists.

[17] These two aspects must be viewed within the factual matrix of this trial and the life insurance issue. I gather that the Crown will argue to the jury that Mr. Lu mistakenly believed that his mother had life insurance designating him as the beneficiary in the amount of one million dollars. It will be posited that this large financial benefit forms evidence of motive to plan and commit the murder of Mr. Lu’s mother.

[18] The comments to Officer Quashie in the April 10, 2015 interview and to Detective Heyes that there was no life insurance suggest and may well be argued by the Crown to be lies to conceal this potential motive from the police. These alleged lies will be contrasted with the remarks to the Kwans that day and the next day that Mr. Lu believed that his mother had a one-million-dollar life insurance policy with him as beneficiary.

[19] Ms. Andrews argued that the evidence is “state of mind” or present intention evidence and, therefore, is admissible as a common law exception to the hearsay rule: see R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 at paras. 23-28; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 per Iacobucci J., at paras. 168, 178-179; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at paras. 49-66. There is some outward attraction to this submission. The text does convey Mr. Lu’s state of mind with reference to the existence of a life insurance policy.

[20] However, as an assertion, on its face and without looking at the background, it could well be a manufactured falsehood for Mr. Lu’s own purposes. This is not mere speculation. For one, in the statement to Detective Heyes, Mr. Lu admits that he lied about not seeing his mother’s car when he was driving around looking for it soon after she disappeared on April 8, 2015. He admitted to Detective Heyes that he did in fact see the car. There are other examples of lies Mr. Lu told, one of which he admitted to outright when confronted by Detective Heyes in the May 1, 2015 statement.

[21] In these circumstances, even if it could be characterized as falling within the present intention exception, the text fails to satisfy the condition required by Starr (see paras. 168, 178-179) that a statement in order to be admissible not be made under circumstances of suspicion. The contradictions between the prior police statements and the text to Officer Quashie are enough to raise this spectre.

[22] In my view, ultimately, both aspects of the text to Officer Quashie are dependant on their truth to garner any probative value in this trial. The statement by Mr. Lu that he was looking for a life insurance policy because he believed it existed, if false in fact, would result in the text lacking any evidentiary value in this trial. Without the contents of the text being true, the evidence has no relevance.

[23] I conclude that the purpose of admitting the text into evidence is a hearsay, truth-telling purpose. Hearsay is presumptively inadmissible: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 at para. 21.

[24] The text message is not only hearsay but hearsay from the accused. The rationale for the rule against admitting an accused’s statements is itself to protect against hearsay. Martin J.A. in R. v. Campbell, 1977 CanLII 1191 (ON CA), 1977 CarswellOnt 5, 1 C.R. (3d) 309 (Ont. C.A.) at paras. 41-44 wrote:

The refusal of the trial Judge to admit the evidence of other witnesses, whether in cross-examination or otherwise, of previous statements made by the appellant, involves two separate rules of evidence:

I. The rule which precludes an accused from eliciting from witnesses self-serving statements which he has previously made.

II. The rule which provides that a witness, whether a party or not, may not repeat his own previous statements concerning the matter before the Court, made to other persons out of Court, and may not call other persons to testify to those statements.

Statements made by an accused which infringe rule I are excluded as hearsay. … Each of the above rules is subject to well-recognized exceptions or qualifications, and there is some overlap, both in the rules and in the exceptions to them: see Phipson on Evidence, 12th ed. (1976), at pp. 650-3; Cross on Evidence, 4th ed., at pp. 207-20; Previous Consistent Statements, [1968] Camb. L.J. 64, by R. N. Gooderson.

(Emphasis added)

[25] And see Sharpe J.A. in R. v. Edgar, 2010 ONCA 529, [2010] O.J. No. 3152, leave to appeal refused, [2010] S.C.C.A. No. 466 (S.C.C.) at para. 28.

[26] With an accused in particular, the specific hearsay mischief to be guarded against is an attempt to germinate favourable evidence by the making of a self-serving statement. The authors of Sopinka, Lederman & Bryant: “The Law of Evidence in Canada”, 6th Ed (Sidney N. Lederman, Michelle K. Fuerst, Hamish C. Stewart) (online) at Section 7.3 comment:

Different rationales have been given for the exclusion of such [self-serving] evidence. The one most commonly relied on is that, due to the risk of fabrication, no person should be allowed to create evidence for him or herself. There is a hearsay danger inherent in such out-of-court statements because of a lack of cross-examination if the maker of the statement does not testify. (Footnotes omitted)

[27] The Supreme Court in R. v. Simpson and Ochs, 1988 CanLII 89 (SCC), 1988 CarswellBC 52, [1988] 1 S.C.R. 3said, per McIntyre J., at para. 24:

As a general rule, the statements of an accused person made outside court — subject to a finding of voluntariness where the statement is made to one in authority — are receivable in evidence against him but not for him. This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination.

[28] The danger of self-serving statements admitted in the Crown’s case is the possibility of concoction coupled with the inability to expose this in cross-examination. This problem must be satisfactorily addressed before an accused’s statement can be admitted into evidence.

DESPITE BEING HEARSAY AND SELF-SERVING, SHOULD THE TEXT BE ADMITTED?

[29] Labelling the text as hearsay and self-serving does not end the question of admissibility. Hearsay from the accused may be admissible in some circumstances. The case law has stressed for many years that “prior consistent statements of an accused are not always excluded”: Edgar at para. 35. Justice Sharpe recognized at least four exceptions:

Where the statement is relevant to the accused’s state of mind at the time of the offence;
To rebut a Crown allegation of recent fabrication;
If an accused’s statement is part inculpatory and part exculpatory – a so-called “mixed statement” – the Crown must tender the full statement; and
Where the statement is res gestae, that is, part of the incident for which the accused is charged.

[30] As Justice Sharpe pointed out in Edgar at para. 36, this list of exceptions is not exhaustive. Justice McIntyre in Simpson at para. 24., in a sentence immediately following the quotation from the case set out above, said:

[Inadmissibility] is, however, not an inflexible rule, and in proper circumstances such statements may be admissible…

[31] In Edgar at para. 72, Justice Sharpe carved out a new exception for admission if the accused’s statement is spontaneous upon first being confronted with the accusation, provided the accused takes the witness stand and exposes himself or herself to cross-examination.

[32] In my view, there ought to be an exception to the rule in this instance. Fairness to the accused requires that the text be admitted. The hearsay dangers posed by the admission of the text – the lack of cross-examination and the more specific concern raised with reference to the potential for concoction – are allayed when the evidence in this case is evaluated.

[33] The fairness inquiry is relatively simple. The Crown may argue in closing to the jury that Mr. Lu lied to Officer Quashie on April 10, 2015 in saying that there was no insurance. Even if this was not specifically argued, the inference is available to the jury and they might draw it on their own. The strength of the motive evidence is amplified by evidence that Mr. Lu actively attempted to conceal the insurance motive from the police.

[34] There is a strong evidentiary basis for this position. Nonetheless, without the text to Quashie that Mr. Lu and the family were looking for a life insurance policy, the jury would be left with an incomplete and potentially unfair picture.

[35] Mr. Lu may well have lied initially to Officer Quashie. That argument is open to the Crown no matter what evidence of subsequent statements is tendered, including the April 15 text. But it is of more than passing relevance that Mr. Lu, whether advertently or not, contradicted his April 10, 2015 statement in the text to Officer Quashie five days later. At that point, he seemed to believe that a life insurance policy existed. He no longer appeared to be hiding from the police that he believed a life insurance policy existed.

[36] I would draw a broad analogy to one of the exceptions Justice Sharpe cited in Edgar, the exception involving mixed statements. The law is that the exculpatory part of an accused’s statement must go into evidence together with the inculpatory part. The rationale is to ensure fairness to the accused and to complete the picture: R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111 (S.C.C.), at para. 37. The same general rationale underlies admission in this case. The April 10 statement, potentially injurious to the defence, does not convey the entire picture. The April 15 text tends to show that Mr. Lu was not hesitant to reveal that there was a belief that his mother did have an insurance policy. The admission of the one without the other would be unfair to the defence.

[37] The defence did not argue that the text should be admitted under the principled exception to the hearsay rule. That, however, does not preclude me from considering admissibility on this basis. Because no specific common law exceptions apply, there is no need to sort out the relationship between the common law and principled exceptions as canvassed in R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241.

[38] Is the prior statement of Mr. Lu reliable and necessary? In this instance, there is a powerful case for substantive reliability which propels admission. In Bradshaw at para. 57, four steps were specified for when corroborative evidence matters in cases of applying the principled exception to the hearsay rule:

identify the material aspects of the hearsay statement that are tendered for their truth;
identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

[39] The material aspects of the hearsay is Mr. Lu’s statement that he and the family were looking for an insurance policy which they believed was in existence. The hearsay danger was that this statement was concocted for Mr. Lu’s own purposes.

[40] Tests 3 and 4 from Bradshaw can be considered together. Addressing the prime hearsay danger of the lack of cross-examination and free rein to fabricate a statement, there are conclusive indications of the truth of the text. Alternative explanations can be ruled out. Ms. Kwan and Ben Hsin testified that the family, as Mr. Lu’s text to Officer Quashie conveyed, was indeed looking for the insurance policy both physically and by calling around to insurance companies. What Mr. Lu said to the officer was unquestionably true.

[41] Ms. Kwan and Ben Hsin’s evidence that a family search was going on for the life insurance reinforces the reliability of the Eric Lu text. Placed within the context of the hearsay jurisprudence, it is virtually conclusive corroboration demonstrating reliability: Bradshaw, at paras. 33-58; Nurse at paras. 105-108.

[42] There remains to consider the reason why Mr. Lu conveyed the information about the search for the insurance to Officer Quashie. It could have been a sincere attempt to find the policy; alternatively, the inquiry to Officer Quashie could have been for a manipulative, self-serving purpose. But that issue is for argument and ought not to hamper admissibility. The inability to cross-examine on this issue is of little importance when the truth of the underlying content cannot be reasonably questioned.

[43] In my view, a finder of fact, evaluating the question of whether Mr. Lu lied initially to Officer Quashie and deciding what the implications of that lie may be, ought to be apprised of what he said a few days later to the same police officer. It does not eliminate the Crown argument that Mr. Lu was lying to conceal his motive but it does require that it be qualified.

[44] I do not intend to analyze the hearsay criterion of necessity in any detail. It could be argued that admission is not necessary within the meaning of the principled exception jurisprudence, as Mr. Lu could testify and the text could be admitted through him. It strikes me as unrealistic in the context of a first-degree murder case to expect the defendant to assume the witness box to lay the groundwork for what can only be described as a minor piece of evidence. In the circumstances, if there is a need to demonstrate necessity, the test of necessity is met. In the alternative, I would exercise my judicial discretion to relax it in favour of the accused: R. v. Williams, 1985 CanLII 113 (ON CA), [1985] 50 O.R. (2d) 321, 18 C.C.C. (3d) 356 (Ont. C.A.)

[45] These are he reasons I held the April 15, 2015 text admissible upon the application of the accused.

D. E. HARRIS J.

Released: November 25, 2022

COURT FILE NO.: CR-17-675-00

DATE: 2022 11 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

and -

ERIC LU

RULING ON ADMISSIBILTY OF TEXT MESSAGE

D. E. HARRIS J.

Released: November 25, 2022

R. v. Lu, 2022 ONSC 6607

Case Summary

RULING ON ADMISSIBILTY OF TEXT MESSAGE

THE LIFE INSURANCE EVIDENCE

IS THE TEXT TO OFFICER QUASHIE HEARSAY?

RULING ON ADMISSIBILTY OF TEXT MESSAGE

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1