COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Taylor, 2026 ONCA 565
DATE: 20260806
DOCKET: COA-22-CR-0428
Miller, George and Monahan JJ.A
BETWEEN
His Majesty the King
Respondent
and
Richard Taylor
Appellant
Anita Nathan, for the appellant
Katie Doherty and Hannah Freeman, for the respondent
Heard: June 16, 2026
On appeal from the convictions entered by Justice Antonio Skarica of the Superior Court of Justice, sitting with a jury, on June 17, 2022.
REASONS FOR DECISION
[1] The appellant appeals his convictions for first-degree murder in connection with the deaths of his mother and stepfather. He argues that the trial judge erred by: i) finding that he was not psychologically detained when he made certain statements to police; ii) admitting his stepfather’s dying declarations or, alternatively, failing to properly instruct the jury on those declarations; and iii) allowing statements the appellant made about a knee injury to be introduced as possibly concocted and improperly instructing the jury on fabricated statements and post-offence conduct.[1]
[2] For the reasons that follow, we dismiss the appeal.
Background
[3] At approximately 3:30 a.m. on July 9, 2018, the appellant’s mother, Carla Rutherford, and his stepfather, Alan Rutherford, were asleep in their home when fuel poured near the foot of the bed in the home’s primary bedroom was ignited, setting the room on fire. Mr. Rutherford escaped the home through a window. Mrs. Rutherford did not escape and died.
[4] Mr. Rutherford went to his neighbour Karen Monk’s home, where Ms. Monk and one of her daughters, Lauren, spoke with him.
[5] Ms. Monk testified that when she asked Mr. Rutherford whether she should call anyone, he replied, “[d]on’t call Rich, he did this, he’ll already know about it”. She said that she knew the appellant went by “Rich” or “Richie”, and that she later learned the appellant’s biological father was also named Richard. Lauren testified that she heard Mr. Rutherford say something like “[d]on’t call Rick, I think he had something to do with it” or “I know he had something to do with it”. She also heard him refer to his “son-in-law”.
[6] After paramedics arrived, Mr. Rutherford made several further statements. One paramedic testified that Mr. Rutherford said his “son-in-law” was responsible because “there’s [a lot of] problems going on.” Another testified that, when asked who he thought would have done this to him, Mr. Rutherford answered, “[f]amily”; when asked why, he said, “[f]inancial.” The boyfriend of one of Ms. Monk’s daughters testified that he heard Mr. Rutherford say that he knew who did it, his son-in-law, “Rick”. A police officer who attended the scene testified that Mr. Rutherford said his wife’s son, “Rich”, was responsible.
[7] Mr. Rutherford died in hospital later the same day.
The Appellant’s Statements to the Police
July 9, 2018
[8] The police asked the appellant and his father, Richard Taylor Sr., to attend the police station the same day as the fire. At the station, an officer advised the appellant and his father that they were being investigated for first-degree murder and asked each of them to provide a statement. The officer also told them that they were free to leave, were not required to give statements, and could contact a lawyer before deciding whether to give a statement.[2]
[9] During his interview with police, the appellant stated that he was asleep at his home when the fire occurred. The appellant also said he had recently injured his knee after falling down a flight of stairs. He explained that, because of the injury, he had not been sleeping in the same bedroom as his wife.
[10] At one point during the interview, the officer told the appellant that she needed his phone. She said the appellant could sign a consent form to show he was “fully cooperative”, but that she was going to seize the phone regardless. The appellant signed the form, gave the police his phone, and provided his password. After downloading the data from the phone, the police returned it to him.
July 10, 2018
[11] The next day, July 10, two police officers interviewed the appellant’s wife in their vehicle near the appellant’s home. They told her about Mr. Rutherford’s dying declarations, which left her distraught. After getting out of the vehicle, she immediately approached the appellant and said something to the effect of “they think you did this”. The appellant then walked over to the police vehicle and got inside. The officers testified that they had not planned to interview the appellant that day and were surprised when he entered the vehicle. For that reason, they did not think to caution the appellant or advise him of his right to counsel.
[12] Once inside, the appellant asked the officers what they had told his wife. He became angry, denied killing Mr. Rutherford, and said that his knee injury rendered him unable to walk down stairs or drive a car. When asked by one of the officers, the appellant denied being in financial trouble.
January 23, 2019
[13] On January 23, 2019, police arrested the appellant for first-degree murder and conducted a third interview. The appellant was cautioned and given an opportunity to speak with counsel, which he did. During the interview, the officer presented documentary evidence showing that the appellant was in significant debt, had falsified banking documents to conceal that debt from his wife, and had borrowed money from friends and family. The appellant acknowledged that he had been in financial distress “for quite a while” and that he had hid it from his wife.
[14] The officer then played surveillance footage from July 10, 2018, showing the appellant climbing down a steep ditch and walking without a cane. The footage contradicted the appellant’s earlier statement to police that his injury prevented him from walking down stairs. The appellant nevertheless maintained that he was injured and could not have set the fire. The officer also showed the appellant the step-counter data from his phone, which recorded no movement between midnight and 4:00 a.m. on the night of the fire, followed by 1,806 steps between 4:04 a.m. and 4:41 a.m.—the period shortly after the fire was set. The officer suggested that the appellant had left his phone at home while he set the fire, then picked it up on returning home and began pacing nervously. The appellant could not explain the data. The officer also confronted the appellant with deleted text messages, including messages he had sent to a friend on the morning of the fire about his mother’s death. The appellant responded that, for various reasons, he often deleted messages after sending them.
The Admissibility Rulings
[15] The trial judge admitted the appellant’s statements to police, the evidence from his cell phone, and Mr. Rutherford’s statements following the fire.[3]
[16] The trial judge rejected the appellant’s argument that the police had intentionally misled him during the July 9 interview or that he failed to appreciate the full jeopardy he faced. The trial judge found that the appellant was a “sophisticated, educated person, who ha[d] skillfully juggled daunting financial issues for many months, if not years” and concluded that his July 9 statement was voluntary.
[17] The trial judge further found that the appellant was neither physically nor psychologically detained when he spoke with police on July 9 and 10, and therefore that his rights under ss. 10(a) and (b) of the Canadian Charter of Rights and Freedoms were not engaged. Before the July 9 interview, the appellant was properly cautioned and told that he was under investigation for murder. The trial judge accepted that the appellant was told what Mr. Rutherford had said at his neighbour’s home and found that he understood he was free to leave or speak with counsel. The interview was otherwise conversational, respectful, and relatively brief.
[18] As for the July 10 statement, the trial judge noted that the appellant, not the police, initiated the exchange. The appellant entered the police vehicle uninvited and imposed himself on the officers after his wife had spoken with them, apparently to repeat his denial of any involvement in the fire. The trial judge found that the appellant was not detained and that the police were therefore not required to caution him or read his rights to counsel.
[19] The trial judge held that the police breached s. 8 of the Charter when they seized the appellant’s phone on July 9. Because the appellant was told that the phone would be seized regardless of whether he consented, the seizure amounted to an unjustified warrantless search. However, after conducting a s. 24(2) analysis, the trial judge admitted the evidence. In doing so, he relied on the fact that the police only seized the phone and did not search it until they had obtained a warrant; that they acted in good faith, honestly believing they were entitled to seize the phone to preserve critical evidence; and that the law on this issue was somewhat uncertain.
[20] Finally, the trial judge admitted Mr. Rutherford’s statements following the fire into evidence. He found that they qualified as both dying declarations and spontaneous utterances, each an exception to the hearsay rule. The trial judge rejected the appellant’s argument that, even if the statements fell within those exceptions, they should be excluded because the witnesses gave differing accounts of what Mr. Rutherford said and because Mr. Rutherford’s distress, including his inability to accurately provide his age and date of birth to paramedics, made the statements unreliable and inadmissible under the principled approach. The trial judge held that those concerns went to weight, not threshold admissibility, and could be assessed by the trier of fact. Applying the principled approach, he found sufficient circumstantial and evidentiary guarantees of substantive reliability.
Discussion
[21] At the conclusion of the appellant’s oral argument, we asked the Crown to address only whether the appellant was psychologically detained when he spoke with police on July 9 and 10. We will first address the grounds of appeal that did not require a Crown response, before turning to the psychological detention issue.
Dying Declarations
[22] The appellant submits that the trial judge erred in finding that Mr. Rutherford’s utterances bore sufficient indicia of threshold reliability to be admitted into evidence.
[23] As the appellant acknowledged below, Mr. Rutherford’s statements came within the traditional hearsay exceptions for dying declarations and spontaneous utterances and were therefore presumptively admissible.
[24] There is no basis to disturb the defence concession at trial that Mr. Rutherford’s utterances qualified as both dying declarations and spontaneous utterances. The issue on appeal is therefore whether the trial judge erred in finding that the appellant failed to meet his onus to show that the utterances were so unreliable as to fall within the “rare-case” exception, warranting exclusion.
[25] The appellant argues that the rare-case exception applies because Mr. Rutherford’s statements appeared to identify three different people: Rich, the appellant; Rick, the appellant’s father; and Mr. Rutherford’s son-in-law. We agree with the trial judge that this concern goes to ultimate reliability and was for the jury to assess.
[26] To be admissible, Mr. Rutherford’s statements had to be trustworthy. However, the Crown was not required to establish the “reliability of the perception, memory, narration or sincerity of the declarant … with absolute certainty”: R. v. MacKinnon, 2022 ONCA 811, 164 O.R. (3d) 535, at para. 37, leave to appeal refused, [2023] S.C.C.A. No. 37. The trial judge had to be satisfied, on a balance of probabilities, that the statements were “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49. Questions of ultimate reliability remained for the jury.
[27] In finding that threshold reliability had been established, the trial judge considered the surrounding circumstances and concluded that they pointed to one person, the appellant. Those circumstances included the appellant’s significant financial problems, the similarity between the names Rich and Rick, and the fact that the appellant, unlike his father, was Mr. Rutherford’s stepson. It was open to the trial judge to consider that evidence in assessing threshold reliability. Although Mr. Rutherford’s statements, viewed in isolation, could be understood as identifying three different people, the surrounding circumstances narrowed those possibilities down to one person, the appellant.
[28] Any ambiguity about whether Mr. Rutherford actually saw who set the fire, or merely believed the appellant had done so, does not make this a “rare case”. Whether Mr. Rutherford was giving direct evidence that he had seen the arsonist, circumstantial evidence about the state of his relationship with the appellant that could support motive, or merely speculating without any obvious basis, was the critical question for the jury. A statement’s susceptibility to different interpretations does not necessarily undermine threshold reliability or preclude the trier of fact from considering it: see MacKinnon, at paras. 20, 25 and 73-76; R. v. Andrews (1987), 84 Cr. App. R. 382 (Eng. H.L.), at pp. 386, 392; and R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at paras. 30-35, 86 and 94.
[29] We therefore conclude that Mr. Rutherford’s utterances were properly admitted into evidence.
[30] The appellant nonetheless argues that, even if the statements were properly admitted, the trial judge’s jury instructions were unbalanced. We disagree. The trial judge specifically advised the jury to approach the statements with caution, and his summary of the evidence was fair.
[31] We therefore reject this ground of appeal.
Post-Offence Conduct and Fabricated Statements
[32] The appellant challenges the admission of, and jury instructions concerning, his out-of-court statements about his knee injury and the physical limitations that he said prevented him from setting the fire. He submits that the trial judge erred by admitting those statements as evidence of fabrication without first determining whether there was a sufficient evidentiary basis to find that they were fabricated.
[33] By way of background, the Crown led evidence that, in its submission, showed the appellant had exaggerated or fabricated his knee injury, including surveillance footage of him walking without a limp or cane at the relevant time. At trial, the appellant admitted that he had lied to police about the extent and effect of his injury. He testified that he did so because he knew he had not killed his mother or Mr. Rutherford and wanted the police to stop investigating him.
[34] The appellant submits that the trial judge erred at the admissibility stage by failing to determine whether there was evidence of fabrication, independent of the evidence showing the falsity of his statements, that could reasonably support a finding that the statements were fabricated. In the alternative, if there was no admissibility error, he argues that the trial judge was required to explain to the jury the distinction between evidence that proved the statements were false and independent evidence capable of supporting an inference of fabrication. He further asserts the jury instructions were flawed because they framed his knee injury as an alibi and because they failed to fully summarize his position about why he lied about his injury.
[35] We are not persuaded.
[36] In R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), this court held that where the Crown relies on an accused’s out-of-court statement as evidence of fabrication, there must be evidence, independent of the mere disbelief of the accused, capable of proving the lie. A failure to conduct that analysis, however, is not necessarily fatal: O’Connor, at paras. 29-30.
[37] That omission is not fatal here. First, as in O’Connor, the admissibility of the appellant’s police statements was addressed on a voluntariness and Charter voir dire, and the appellant did not object to the Crown’s intention to rely on those statements as evidence of fabrication. Second, the impugned statements were the appellant’s out-of-court statements, not his trial testimony. And, as this court explained in O’Connor, at para. 25, such statements do not carry “the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown.” Third, from the outset it was apparent that the appellant’s claimed injury was going to be challenged as fabricated. This was clear from the circumstances surrounding the January 2019 statement, when the appellant was directly confronted with evidence suggesting that his leg injury was feigned.
[38] Nor did the trial judge err in instructing the jury on this issue. The appellant’s claim that his injury made it impossible for him to commit the offences was closely tied to his assertion that he was not at his mother’s home when the fire was set. In that context, it was open to the trial judge to describe the appellant’s statements as asserting both that he was elsewhere when the fire was set and that, because of his leg injury, he was physically incapable of setting it. The trial judge did not misdirect the jury on the appellant’s alibi.
[39] The trial judge also correctly directed the jury to distinguish between disbelief and fabrication and identified the evidence relevant to deciding whether the appellant’s statements were fabricated. In any event, there was clear evidence that the appellant had dishonestly attempted to deflect suspicion from himself, which was capable of satisfying the threshold described above. On that record, it was open to the jury to find that the evidence of the appellant’s use of a cane and pronounced limp in the presence of police, taken with the video evidence of him walking normally on other occasions, constituted independent evidence that supported the conclusion that his statements were not merely false but fabricated. In light of the evidence and the parties’ submissions, which were fairly and accurately summarized by the trial judge, that distinction would have been well understood by the jury. There is no reversible error.
[40] We therefore reject this ground of appeal.
Psychological Detention
[41] The appellant accepts that he was not physically detained when he spoke with police on July 9 or 10 but submits that he was psychologically detained on both occasions. On that basis, he argues that his Charter rights were engaged and breached when the police failed to caution him and advise him of his right to counsel. The appellant further submits that his third statement, given after his arrest in January 2019, was tainted by the information obtained through the first two statements. He also argues that the denial of access to counsel and the use of an inducement created oppressive circumstances that rendered his statements involuntary.
[42] The appellant submits that the statements should have been excluded under s. 24(2) or, alternatively, found to be involuntary.
[43] We do not accept these submissions.
[44] Sections 10(a) and 10(b) of the Charter are engaged only where there is an arrest or detention. Detention entails the “suspension of the individual’s liberty interest by a significant physical or psychological restraint”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Psychological detention may arise where a person is legally required to comply with a police direction, or where police conduct would cause a reasonable person in the individual’s circumstances to conclude that they had no choice but to comply and were not free to leave: Grant, at paras. 30-31, 44; R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at paras. 21-22; R. v. Le, 2019 SCC 34, 2019 SCC 692, [2019] 2 S.C.R. 692, at para. 25; and R. v. Joseph, 2020 ONCA 73, 385 C.C.C. (3d) 514, at para. 37.
[45] The question for the trial judge was whether a reasonable person in the appellant’s circumstances would have understood that the state had restricted his liberty. In deciding that issue, it was open to the trial judge to consider the circumstances in which the statements were made, the nature of the police conduct, and the appellant’s personal characteristics and situation. The analysis is objective and depends on how a reasonable person would have perceived the encounter: Grant, at paras. 30-32; Lafrance, at para. 22; and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 29.
[46] Whether detention has occurred in a particular case is a question of law, reviewable for correctness. However, a trial judge’s application of that legal standard is grounded in factual findings, which are entitled to deference and should not be disturbed absent palpable and overriding error: Grant, at para. 43; Lafrance, at para. 23.
[47] The trial judge identified the applicable standard, made findings of fact that were open to him on the record, and correctly concluded that the appellant was not psychologically detained on either July 9 or July 10. In reaching that conclusion, the trial judge considered the totality of the circumstances, including that, on July 9, the appellant was told that Mr. Rutherford had said “Rich” or “Rick” was responsible for the fire, cautioned in relation to first-degree murder, advised that he did not have to say anything, and told that he could leave at any time. Regarding the interaction on July 10, the trial judge found that the police did not initiate the interview and that it was the appellant who sought out and imposed himself on them. The fact that the police suspected the appellant was responsible for the fire and questioned him about it does not, without more, establish psychological detention. The relevant inquiry is how the police acted on those suspicions in their dealings with him. Here, there was nothing improper or coercive in the manner in which the police interacted with the appellant.
[48] We reject the appellant’s submission that the trial judge’s conclusion that ss. 10(a) and 10(b) were not breached is irreconcilable with his finding that the police breached s. 8 by seizing the appellant’s phone on July 9. The trial judge expressly considered whether the seizure bore on the psychological detention analysis and reasonably concluded that it did not.
[49] It was also open to the trial judge, when assessing the appellant’s personal circumstances, to consider the appellant’s education and his demonstrated ability to skillfully manage significant financial difficulties over an extended period.
[50] Having regard to the totality of the circumstances, the trial judge correctly concluded that the appellant was not detained and that his statements were voluntary. Those conclusions disclose no legal error and provide no basis for appellate intervention. We therefore reject this ground of appeal.
Conclusion
[51] For these reasons, the appeal is dismissed.
“B.W. Miller J.A.”
“J. George J.A.”
“P.J. Monahan J.A.”
1The appellant raised other grounds in his notice of appeal, but he did not pursue them in his written or oral submissions.
2The appellant’s brother was also asked to attend the police station and to provide a statement, though he was not suspected of involvement in the murders. The appellant, his father, and his brother attended the station together, with two friends.
3The trial judge’s reasons for admitting Mr. Rutherford’s statements are reported at R. v. Taylor, 2022 ONSC 2764. His reasons for admitting the appellant’s statements to the police and the evidence from his cell phone were provided orally and not reported.