R. v. Kembo

2009 BCSC 1880 R. v. Kembo IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kembo, 2009 BCSC 1880 Date: 20091007 Docket: 24267 Registry: Vancouver Regina v. Charles Eli Kembo Restriction on Publication Pursuant to s. 517(1) of the Criminal Code [As the Trial Ended June 11, 2010, this Ban is no Longer in Effect] Before: The Honourable Madam Justice Stromberg-Stein Oral Reasons for Judgment Counsel for the Crown: H. J. R. Reiner, Q.C. M. McGivern J. A. Oulton Counsel for the Accused: D. E. Morrison G. Docolas Place and Date of Trial/Hearing: Vancouver, B.C. October 7, 2009 Place and Date of Judgment: Vancouver, B.C. October 7, 2009 [1] THE COURT: The law is clear that what constitutes hearsay depends on the purpose for which the evidence is being tendered. Evidence is hearsay if it is an out-of-court statement being tendered for the truth of the assertion. If it is being tendered for other purposes, it is not hearsay. [2] The Crown seeks to tender a number of utterances, attributable to the four victims, that were made to a number of people. These utterances fall into three categories: 1. hearsay tendered pursuant to the principled exception to hearsay rule; 2. hearsay tendered pursuant to the stated intention exception to hearsay rule; and 3. state-of-mind utterances advanced to reflect the present state of mind of the declarant and thus are not hearsay. [3] In R. v. Post, 2007 BCCA 123, 217 C.C.C. (3d) 225, Chief Justice Finch conveniently summarized the hearsay law as follows, paras. 46 - 52: [46] R. v. Khelawon revisits the principled exception to hearsay evidence, as it has developed in the Supreme Court of Canada since 1992 in a series of cases including R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), supra; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Starr, supra; and R. v. Mapara, [2005] 1 S.C.R. 358. [47] The Court restates much of what is now well settled law: 1. A hearsay statement is an out-of-court statement adduced to prove the truth of its contents, in the absence of a contemporaneous opportunity to cross-examine the declarant. 2. Hearsay evidence is presumptively inadmissible. 3. It is inadmissible because generally it is not possible to test the reliability of a hearsay statement. 4. A hearsay statement may be admitted for its truth if it is shown to be both necessary and reliable. 5. Its reliability must be sufficient to overcome the dangers arising from the difficulties of testing it. 6. The onus of establishing, on a balance of probability, both necessity and reliability is on the person who seeks to adduce the evidence. 7. The overarching principle is trial fairness which embraces not only the rights of the accused, but broader societal concerns including truth as the goal of the trial process. 8. There are two main ways of establishing reliability. The first is that because of the circumstances in which the statement was made, there is no real concern about the statement's truth. This approach is embodied in traditional exceptions to the rule against hearsay such as dying declarations, spontaneous utterances, and statements against pecuniary interest. 9. The second way of establishing reliability is because the statement's truth and accuracy can be sufficiently tested. The optimal means of testing reliability is to have the declarant state the evidence in court, under oath, and subject to contemporaneous cross-examination. In some cases where the optimal means are unavailable, it will still be possible to sufficiently test the truth and accuracy of the evidence because of the presence of adequate substitutes, including (a) an oath or its equivalent; (b) an opportunity to observe the statement being made (e.g. a video); and (c) the opportunity to cross-examine the declarant on his or her earlier statement. 10. Trial fairness requires consideration of factors beyond necessity and reliability. Even if those two factors are met, the trial judge has a discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect. 11. The trial judge must also be satisfied on a balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct. 12. There is a distinction between threshold reliability (i.e. reliability sufficient to be admissible) which is a legal question for the judge; and ultimate reliability, which is a question for the trier of fact. [48] In R. v. Starr the Court held that extrinsic evidence was inadmissible on the issue of threshold reliability. The Court said: [217] At the stage of hearsay admissibility the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence. On this point, I agree with the Ontario Court of Appeal's decision in R. v. C. (B.) (1993), 12 O.R. (3d) 608; see also Idaho v. Wright, 497 U.S. 805 (1990). In summary, under the principled approach a court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability. [49] In Khelawon the Court held that those comments should no longer be followed. Charron J. said: [93] As I trust it has become apparent from the preceding discussion, whether certain factors will go only to ultimate reliability will depend on the context. Hence, some of the comments at paras. 215 and 217 in Starr should no longer be followed. Relevant factors should not be categorized in terms of threshold and ultimate reliability. Rather, the court should adopt a more functional approach as discussed above and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers. In addition, the trial judge must remain mindful of the limited role that he or she plays in determining admissibility - it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire. [50] She adopted as sound the dissenting opinion of Kennedy J. in Idaho v. Wright, 497 U.S. 805 (1990) who reasoned that in considering admissibility the Court should take into account not only circumstances existing at the time the statements were made, but also the existence of corroborating evidence as indicia of reliability. [51] Charron J. said: [100] In my view, the opinion of Kennedy J. better reflects the Canadian experience on this question. It has proven difficult and at times counterintuitive to limit the inquiry to the circumstances surrounding the making of the statement. This Court itself has not always followed this restrictive approach. [52] She pointed out that in some of the earlier Canadian cases, extrinsic evidence was considered in deciding threshold reliability. For example, in Khan, a semen stain was relevant to the reliability of a child's hearsay statement. [4] As well, LeBel J. in R. v. Griffin, 2009 SCC 28 at para. 89, in dissent in the result, considered the issue of relevancy of hearsay evidence as follows: [89] We begin by recalling that hearsay evidence, like any other, must be relevant to be admissible (R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 29). It must tend to "increase or diminish the probability of the existence of a fact in issue" (R. v. Arp, [1998] 3 S.C.R. 339, at para. 38). Under the rule against hearsay, the presumption is that out-of-court statements are inadmissible to prove the truth of their contents (Blackman, at para. 33), absent an exception. One should first look to the traditional exceptions (R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358), and then to the principled exception (R. v. Khan, [1990] 2 S.C.R. 531). The traditional exceptions are presumptively valid, though they are still subject to modification in light of the principled analysis of necessity and reliability (R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144). The admissibility decision is also informed by the judge's residual discretion to exclude evidence where its probative value is outweighed by the potential prejudicial effect (R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 85; R. v. Smith, [1992] 2 S.C.R. 915, at p.937). On appeal, the trial judge's decision is entitled to deference, and should only be disturbed where there is an error in principle or the decision is not supported by the evidence (Blackman, at para. 52). [5] The courts in R. v. P(R.) (1990), 58 C.C.C. (3d) 334, 10 W.C.B. (2d) 279 (Ont. S.C.J.); and R. v. Jack (1992), 70 C.C.C. (3d) 67, 76 Man. R. (2d) 168 (C.A.) consider state-of-mind utterances and refer to the requirement of circumstantial guarantees of trustworthiness for admissibility. In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 [Khelawon] however, the Court considers the need to test for reliability, only when there is a hearsay purpose for seeking to admit the evidence. [6] Counsel for Mr. Kembo asserts that balancing probative force against prejudicial effect requires exclusion of the utterances in this case. Counsel submits the victims' states of mind are irrelevant and the evidence tendered is being put in for the truth of what Mr. Kembo told the victims as the Crown will seek to invite the jury to conclude that Mr. Kembo told the victims lies. Thus, the defence submits, there is a high risk that the jury would use the evidence for an improper purpose resulting in confusion and unfair prejudice. [7] Citing Fuerst J. in R. v. Wills, [2007] O.J. No. 823, at paras. 63 - 65, counsel for Mr. Kembo maintains most of the utterances are neither sufficiently contemporaneous nor sufficiently connected to the alleged offence and therefore lack probative force. Some of the utterances describe discredible conduct on the part of Mr. Kembo and, as expressed by Doherty J. in R. v. P(R.) at 348: There is a high risk that the jury would use this evidence for the improper purpose of concluding that [the accused] had acted improperly and bizarrely towards the deceased in the past and that he was therefore disposed to act in the same manner towards her [at a later point] [8] Finally, defence counsel submits that aspects of the evidence are vague or ambiguous and capable of misapprehension. [9] In my view, even if one considers circumstantial guarantees of trustworthiness or the reliability of the state-of-mind evidence in this case, the evidence sought to be tendered by the Crown withstands scrutiny. The reported utterances were made in trustworthy circumstances obviating the requirement to cross-examine the declarant. The declarants had no motive to lie or mislead about their relatively innocuous communications with the various recipients of those communications. A number of the recipients did not know Mr. Kembo and there is no suggestion of a bias against him so as to misrepresent what they may have been told by the declarants. Importantly, there is confirmatory evidence of the utterances of Margaret Kembo, Rita Yeung, and Ardon Samuel from Mr. Kembo. As well, there is circumstantial evidence of confirmation with respect to Sui Yin Ma and her connection to Mr. Kembo. The trier of fact will be able to rationally evaluate the evidence. [10] All of the individuals whose utterances the Crown seeks to tender are deceased and therefore there is no issue with respect to necessity. State of Mind Utterances: Rita Yeung [11] The Crown seeks to establish Rita Yeung's state of mind concerning her belief that her mother had gone to Brunei. The purpose for which this evidence is led is to show Rita Yeung's state of mind about the circumstances of her mother's leaving, her mother's activities while away, her mother's failure to contact her, and her mother not returning. Crown asserts that when Margaret Kembo disappeared on January 1, 2003, Mr. Kembo told different things to different people about her whereabouts, where she had gone, and why. From the assertions attributable to Rita Yeung, Mr. Kembo told Rita that her mother had gone to Brunei on business for him. He told her that he had learned that her mother had an affair and was too embarrassed to return home. He told her that her mother had taken the family money and, about a year later, had contacted him and told him that she had decided to become a Buddhist nun. Elements relevant to all these assertions are found in confirmatory evidence. Counsel for Mr. Kembo maintains there is no reliable evidence that Rita Yeung was going to Hong Kong to locate and confront her mother; therefore, her state of mind is irrelevant. [12] Ian Goh and Rita Yeung communicated by MSN. Rita never spoke of her mother face to face. There is other evidence that Rita was quite private and generally reticent to talk about her mother. There were over a thousand pages of MSN messages between Mr. Goh and Rita Yeung, but the only ones Mr. Goh produced as relevant to Rita and her mother were dated February 15 and February 25, 2004 (Exhibit G1 from 2:27 a.m. to 2:48 a.m.; 2:58 a.m. to 3:03 a.m.; Exhibit G2 from 11:25 p.m. to 12:06 a.m.). They did not communicate much in 2005 and Mr. Goh last saw Rita sometime in 2005. [13] In the MSN conversation of February 15, 2004, Rita sets out the details of her understanding as to her mother's situation, when she left, why she left, and why she was not returning. Rita said that her mother left a year ago; she was in Brunei supposedly working for her dad, but a week into the trip, "we" heard from "my dad's friends" that she was seen going into a hotel with a family friend; Rita never got to talk to her before she left, but heard it from her stepdad; for a year, they waited to hear and then "two weeks back", she called and said she was not coming back; they cannot keep in touch with her because she is in rural China with no access to phones; "she only called my dad once"; and she was waiting for her mother to contact her, but does not know if her mother "is willing to do that". [14] In the MSN conversation of February 25, 2004, Rita disclosed that her mother is in a Buddhist temple in a rural area of China with no cell phones; she indicated that she told "us" this last month after a year of silence; her stepfather still loves her and wants her back; her stepdad does not know where the temple is; her master does not want her tainted by the outside world; and that she left that other guy last year and became a nun. Rita also expressed, in addition to feelings of hurt and abandonment and a desire to confront her mother, that she was happy and did not feel sorry for herself. [15] On November 19, 2004, Sergeant Sobotin and Sergeant Kalkat, investigating Margaret Kembo as a missing person, interviewed Rita Yeung about her mother's whereabouts after pulling her from a class at UBC. Rita was surprised and reluctant to be interviewed so the officers decided not to record the interview. Notes were taken during the interview by Sgt. Sobotin, but these were not verbatim. The notes formed a report three days later. The Crown seeks to have admitted the entire interview going to the state of mind of Rita Yeung about her mother's leaving and her expressions of confusion, abandonment, and anger that her mother had run off. Mr. Kembo argues there are discrepancies between the notes and the report and suggests Rita Yeung lied to the officers about her address. These are matters of weight for the jury and, in my view, they do not impact on the threshold reliability. [16] In the police interview, Rita said her mother does not talk to her; she does not know why her mother does not have contact with her; and she is very upset about this and feels abandoned. She said she last spoke to her mother in December 2002; Charles Kembo tells her when her mother calls and relays the information to her; when Margaret Kembo calls Charles Kembo, she does so on his cell phone, 868-1383; Rita gave her address as 3495 Cambie, which is a mail-drop location, and then as 3594 Dunbar Street and, in fact, 3594 is the address on 34th Avenue which intersects with Dunbar; Mr. Kembo had showed her a fax indicating that he had received it from her mother; it was in Cantonese; Mr. Kembo told her in September that he spoke with her mother; she felt that her mother knows that she, Rita, will be mad at her for not calling and that is why the mother does not contact her; and Charles Kembo told her that her mother had to contact ICBC around May of 2004 to file a claim. In fact, there will be evidence that Genevieve Camara pretended to be Margaret Kembo in a call to ICBC on June 4, 2004. Rita indicated to the officers that she had told her mother's friends that her mother is well and she got that information from Charles; that he is the only one who has been able to tell her that her mother is well; her mother has not contacted any of their relatives, either, but she believes her mother is well and wants people to stop inquiring about her. [17] Jenny Lau testified that Rita was depressed that her mother had left her without saying a word. At the beginning of 2003, Rita said she did not know where her mom was; she had gone to China or Hong Kong to become a monk, to find peace, and to cut off any contact with family members. Rita indicated she was told this by her stepfather, Charles, and the only contact with her mother was a letter received by her stepfather supposedly from her mother, with no return address, which said her mother was fine and not to bother looking for her. Rita said her stepfather told her that he had been told by colleagues that her mother had run away with another man and she had been seen going into a hotel with a man. [18] Toward the end of 2003, Ms. Lau learned from Rita that her mother was ashamed about the affair and that is why she became a monk; Mr. Kembo told her that he did not think her mother would return; Rita was angry that Margaret Kembo had taken money; she went to the bank the summer of 2004 to confirm her mother had emptied the family bank account; Rita was dependent on Charles Kembo for money; Rita thought he was smart, successful, very intelligent, and she was very proud of him; Rita was not doing well at school and was depressed; she was planning a trip to Hong Kong the first week of August 2005 and she wanted to take her brother, Grant. Ms. Lau tried to talk her out of this, but Rita said it was set and it could not be changed. Rita reported to Ms. Lau that Mr. Kembo had taken Rita's laptop for a few weeks in July. [19] Leanne Ao-Yeong testified that Rita said that she did not know where her mom was; her mom had just disappeared; Rita said she was shown a letter by her stepdad; her mom had gone to find peace in a temple and could not be contacted. This was in 2004 or 2005. Ms. Ao-Yeong remembers Rita mentioning another man being involved. Ms. Ao-Yeong last communicated with Rita in July 2005, a few days before her murder. Rita mentioned her trip to Hong Kong or maybe Asia in 2005 and said her stepfather was going to pay for the trip. She spoke of police contacting her and she was annoyed. [20] Caesar Chow testified that Rita Yeung told him that her mother left the country without telling them; she sounded upset about it; Rita said her mother took all the money with her; and she thought she had gone somewhere in Asia. He was not sure what country. Her mother had contacted them at some point, but it did not sound like Rita had talked to her herself and Rita had no means of contacting her mother. In the summer of 2005, Rita mentioned planning to go to Hong Kong. Mr. Chow thought it was that summer, but there was no concrete plan and he did not know exactly when she was going. [21] Candace Ho testified that Rita Yeung left a message on Ms. Ho's computer, a few weeks to a month before a barbeque that Ms. Ho had July 22, 2005, with a status heading indicating that Rita had to go to Hong Kong (Exhibit J from 1:22 a.m. to 1:32 a.m.). Rita did not tell Candace Ho that herself. [22] Janet Khuu testified that she communicated with Rita Yeung by MSN, (Exhibit C, October 4, 2004, from 22:23 p.m. to 22:35 p.m.). Ms. Yeung said her mother had to go on a business trip relating to her stepdad and someone else. Ms. Khuu thought that Ms. Yeung was close to her mother and her stepfather. [23] Janet Woo testified that Rita Yeung told her that she was going to China or Hong Kong, she was pretty sure that summer, but she did not say why. [24] The only arguable element of truth contained in the state-of-mind assertions of Rita Yeung advanced by the Crown is that the source of the utterances, which the Crown says was false information, was Charles Kembo. Rita's utterances are not led for any hearsay purpose, but merely for the fact that the statements were made to her by the accused. [25] While I start from the proposition that there is no hearsay purpose at all to Rita's statements, even assuming that there is, I would conclude that the statements are relevant, necessary, and reliable and the probative value of this evidence outweighs any prejudicial effect. [26] In terms of reliability, the statements exhibit sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of these statements in determining "ultimate reliability". In examining threshold reliability, the following factors negate inaccuracy or fabrication: the statements were made spontaneously, naturally, without suggestion, and reasonably contemporaneously with the events having regard to the peculiar circumstances of this case, that being the length of time between Margaret Kembo's disappearance and Rita Yeung's death; they were made by a person of sound mind; by a person seemingly with no motive to fabricate; and there is substantial confirming evidence. [27] Margaret Kembo has never been located and the issues at trial will include: 1. is Margaret Kembo dead; 2. was she murdered; 3. was the murder planned and deliberate; and 4. was the murderer Charles Kembo? [28] With respect to Rita Yeung's state of mind concerning Margaret Kembo's whereabouts, the evidence is also relevant as original circumstantial evidence going to the actus reus, identity and motive. If Rita Yeung were alive, she could freely testify about what Mr. Kembo told her about her mother's circumstances. As well, with respect to Rita Yeung's death, the issue is the identity of her killer. Evidence of Rita Yeung's state of mind is relevant on the issue of a motive to kill her; that is, whether Mr. Kembo was threatened with exposure if Rita travelled to Hong Kong in search of her mother. Further, evidence of Rita Yeung's state of mind is relevant to provide a narrative and context of the relationship between her and her mother and her and Mr. Kembo. [29] It remains to be determined whether the jury will be instructed on what, if any, use they can make of this evidence, let alone to conclude that Mr. Kembo did, in fact, convey false information, and whether the utterances consist of statements against interest by the accused to his now deceased stepdaughter, or whether it is evidence of post-offence conduct. This will have to be revisited in advance of my final instructions to the jury. Principled Exception to Hearsay Rule: Rita Yeung [30] With respect to the principled exception to hearsay rule, the Crown seeks to tender evidence from Rita Yeung that she last saw her mother in December 2002. Rita Yeung was interviewed by police officers Sgt. Sobotin and Sgt. Kalkat on November 19, 2004. In the course of that interview, she indicated that she last saw her mother in December 2002 and had had no contact with her since; at the time her mother left they were living alone and not with Charles Kembo; they were on good terms; and her mother's friends, the RCMP, and ICBC had been calling her to inquire about her mother. The Crown asserts almost the entirety of the case involving Margaret Kembo will demonstrate the truth of the assertions about when Rita last saw her mother; namely, December 2002. [31] Threshold reliability is established considering the circumstances; namely, that Rita Yeung had no motive to lie. She projected a very favourable attitude toward Mr. Kembo and there is ample confirmatory evidence. In addition, what I have already said about necessity and reliability applies here. In my view, Rita Yeung's utterances are admissible under the principled exception to hearsay rule with respect to when she purportedly last saw her mother. State of Mind Utterances: Margaret Kembo [32] The Crown seeks to lead state-of-mind evidence about utterances made by Margaret Kembo to various witnesses about her leaving for Brunei. Mr. Kembo argues there is no reliable evidence that Margaret Kembo was going on a trip to Brunei and any talk of such a trip was not contemporaneous with the time she was last seen. [33] Monique Cabana testified that Margaret Kembo first told her Charles Kembo took a job in Brunei as a financial advisor to the King when she was pregnant with Grant, who was born in April 2000. She was told there would be money there and Margaret was excited. From time to time Ms. Cabana would bring up the subject; the last time it was mentioned in 2002. [34] So King Ngo testified that Margaret Kembo talked about her plans to go to Brunei to do a film for Charles, like "The King and I". Charles knew the King of Brunei. The subject was first brought up after Grant was born and was brought up almost every time they met; Margaret Kembo was excited and it was always that she was leaving anytime. The last time they spoke was close to Christmas 2002 when Margaret Kembo called to say she was leaving when the crew from the U.S. was ready. She said she was shopping for presentable clothes to leave to do business for Charles, she was in a rush, and the flight was that day. Although she did not say where she was going, Ms. Ngo assumed it was Brunei because of their previous conversations. [35] Ms. Ngo testified, as well, of asking Rita when her mother was coming back. Rita did not know and said that her mom was okay. Ms. Ngo had a MSN conversation where Rita asked her if she had called the police regarding her mom. Rita was annoyed and angry and thought people were nosy calling the police. [36] Jose Ang worked full-time in the store in October 2002. Mr. Ang testified that Margaret Kembo talked about going to Brunei. She said she and Charles were going to make a documentary film on the education system in Brunei. Mr. Ang heard her talking to customers about it and she was excited. [37] Ashwini Saywell got to know Margaret Kembo in the summer of 2002. Ms. Saywell testified that Margaret Kembo told her it was hard with Charles, but a psychic told her that they were meant to be together. She talked about wanting to go to Hong Kong. She also talked about a business trip in late September or early October 2002. Margaret Kembo said she was going alone to her husband's country in Africa on government business and Charles would join her later; she was evasive and she said she would be gone a couple of months. The night before she was to leave they had dinner together in the store. They said their goodbyes, Ms. Saywell gave Margaret Kembo her email address and told her to write when she got there. Two weeks later, Ms. Saywell went to the store and Margaret Kembo was there. Margaret Kembo said she had to make arrangements with banks to make sure Charles had access to the business if something happened. It could not have been 2003 when she last saw Margaret Kembo. [38] Angelita Carandang and Margaret Kembo closed the store together one evening in the end of December 2002. Margaret Kembo asked if she could use Ms. Carandang's bathroom to take a shower. After she finished, she said she had to meet Charles outside. They talked about Margaret bringing cigarettes to the store from Costco the next day. Ms. Carandang expected to see Margaret at work the next day but she did not show up. [39] I conclude that the evidence of Margaret Kembo's belief that she would be going to Brunei is admissible. It is relevant to the issues concerning whether she is dead; whether she was murdered; whether the murder was planned and deliberate; and the identity of her killer. I am satisfied the probative value of such evidence outweighs any prejudicial effect. Stated Intention Exception to Hearsay Rule: Margaret Kembo [40] The Crown seeks to admit evidence from Angelita Carandang about what Margaret Kembo told her the last time she ever saw Margaret Kembo. Mr. Kembo maintains that Ms. Carandang's evidence is unreliable. [41] Ms. Carandang testified that Margaret Kembo asked if she could have a shower at Ms. Carandang's apartment after they finished work. Margaret Kembo left Ms. Carandang's apartment saying she was going to meet Charles (or Charles Kembo) outside. Ms. Carandang cannot say, in fact, that Margaret Kembo did meet Charles Kembo. [42] Margaret Kembo's assertion is a classic example of the stated intention exception to hearsay rule and is admissible unless the defence shows that this is one of those rare cases where the indicia of necessity and reliability are lacking: Khelawon, at paras. 42 - 60. This particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. The determination of the ultimate reliability is reserved to the trier of fact. In terms of threshold reliability, there are many factors that go to inherent trustworthiness and certain factors that negate inaccuracy or fabrication. As I have said with respect to Rita Yeung's statements, these statements were purportedly made spontaneously, naturally, without any suggestion and contemporaneously with the events and by a person who seemingly had no motive to fabricate. In addition, there is substantial corroborating evidence. [43] I agree with the Crown that Ms. Carandang's description of Margaret Kembo's stated intention was of the most benign and innocuous sort, at least on the face of it, and that there is no suspicion raised such as in the cases of R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 or R. v. Smith, [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590. A balancing of the probative value and prejudicial effect involves an assessment of the risk that the jury may use the evidence for an improper purpose. In my view, a proper jury instruction in this case, as with all of the other evidence that I have already reviewed, will counter any such risk. [44] The Crown cannot use this as evidence to establish that Margaret Kembo actually met Charles Kembo that night, but it is circumstantial evidence of her intention to do so and can be used with other evidence in the Crown's case, including a conversation between Mr. Kembo and his girlfriend, Genevieve Camara, to establish that, in fact, Margaret Kembo did meet Mr. Kembo the night of her disappearance. State of Mind Utterances: Sui Yin Ma [45] In the final days of Sui Yin Ma's life, she quit her job with her brother's business. She gave notice at her apartment. She gave slightly different versions of her future plans to different people. The Crown asserts her attitude showed that she thought something appealing was about to happen or was happening. There will be evidence to show that Mr. Kembo had a sexual relationship with Ms. Ma as well as a business relationship. He was instrumental in having her open up a number of bank accounts for a company that he paid the incorporation fees to set up. After her death, there will be evidence to show that he was involved in an attempt to deposit forged GST cheques into some of these bank accounts. There will be evidence led that will purportedly show that he had access to her personal bank card, including her PIN number and credit cards. Thus, although it cannot be determined what exactly Mr. Kembo may have promised Ms. Ma, the circumstantial evidence will show that it was enough to cause her to believe that she was about to venture into a new life. In the Crown's view, the assertions by Ms. Ma about her new life are admissible as state-of-mind exceptions, and none are going in for the truth. [46] Ms. Ma told Sydney Mason, her apartment manager, on October 22, 2004, that she was going to move to the West End to look after her father's sister and that she was going to take her out in the car if she wanted to. She asked him to contact Big Brothers and give away her furniture and, when he suggested she sell it, she said she did not need the money. She told Alan Marr, her brother, that she had a new job driving for a big family. She was to drive an old man shopping and children to school. She told Grace Marr, her sister, that her new job was to go with some children to school and drive some old people. [47] The position of the Crown is that these assertions were all made on the same day, October 22, 2004, the last day, the evidence will show, that Ms. Ma was alive. In conjunction with other evidence, the key is she thought she was starting a new life which meant she would not need her job, her apartment, or her furniture. The position of the defence is that the evidence of the witnesses about what Ms. Ma told them is not reliable and the state of mind of Ms. Ma is not relevant. [48] Evidence of what Ms. Ma told Grace Marr, Alan Marr, and Sydney Mason about quitting her job, starting a new job, giving notice at her apartment, and disposing of her furniture is admissible, in my view, under the state-of-mind exception to hearsay rule. None of this evidence is tendered for the truth, but merely to show Ms. Ma's state of mind before her disappearance and death. [49] When clearing out Ms. Ma's apartment on November 13, 2005, Alan Marr discovered a note in Ms. Ma's handwriting about marrying a black man. This note is admissible as original circumstantial evidence. State of Mind Utterances: Ardon Samuel [50] The Crown's position is that the principal motive in the killing of Ardon Samuel was the existence of an insurance policy taken out on his life with the named beneficiary being Grant Kembo, Charles Kembo's young son. The Crown asserts there will be compelling circumstantial evidence that Mr. Kembo effected this policy, paid for its establishment, and had the completed policy sent to his mail drop box on Davie Street, which he had opened years earlier using Ardon Samuel's name. The Crown asserts the predicate for this "key man" insurance policy was Mr. Kembo's purporting to assist Mr. Samuel in securing financing for an Internet debit card operation, and Mr. Kembo's assertion that financing for the project had been obtained through a company called Oracle which had agreed to provide a cash advance. The Crown seeks to admit as state-of-mind evidence what Mr. Samuel told Danganyo Rwamagira, a friend and business partner, and Garrett Sandwell, a friend and employer. The Crown submits that all Ardon Samuel's statements are state-of-mind utterances, representing a belief fostered in the mind of Ardon Samuel that the financing of his project required him to have life insurance. [51] The position of the defence is that the evidence of the state-of-mind witnesses is not reliable and the state of mind of Ardon Samuel is not relevant. [52] Danganyo Rwamagira testified Mr. Samuel told him that Charles told him that Oracle's venture capital component had accepted the project for $5 million and the investment firm wanted life insurance; Mr. Samuel did not have the money and Charles Kembo was to pay for the life insurance; Mr. Samuel had gone for a check-up and sent everything to a company in Toronto; and Charles Kembo told Mr. Samuel he should look like a CEO and took him to look at Porsches to buy once he got the money. Mr. Rwamagira last spoke with Ardon Samuel late at night in November, close to the time when his body was found. Mr. Samuel told him that Mr. Kembo said, since it was the beginning of the Christmas period, they could not get the funding, but they would receive an advance of $100,000 the following week. In addition, there is confirmatory evidence as Mr. Rwamagira will testify about a time when he and Ardon Samuel went to a restaurant in the fall of 2003 and met Charles Kembo and his wife, Genny. Mr. Kembo showed them a letter of intent for funding from Oracle for $5 million. [53] Garrett Sandwell testified that Mr. Samuel told him that he had a business partner who helped people start businesses. He mentioned Oracle and said he had received, or was about to receive, around $250,000 to launch the venture. Mr. Samuel mentioned his partner was going to help him buy a condo in North Vancouver and buy him a Porsche. [54] In terms of the state-of-mind evidence of Ardon Samuel, offered by Danganyo Rwamagira and Garrett Sandwell, this is relevant to the financial benefit motive respecting Charles Kembo. While this evidence cannot be used directly to implicate Charles Kembo, the state-of-mind evidence can be used in conjunction with other evidence to permit the jury to conclude that it was Charles Kembo who created Ardon Samuel's state of mind. There is other anticipated evidence linked to Mr. Kembo that will confirm key elements of these utterances. [55] In the result, I conclude that the evidence that the Crown seeks to tender is admissible. "The Honourable Madam Justice Stromberg-Stein"