COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Liard, 2015 ONCA 414

DATE: 20150609

DOCKET: C55410

Laskin, Epstein and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Michelle Liard

Respondent

Elise Nakelsky and Michael Fawcett, for the appellant

James Lockyer, Lance Beechener and Daniel Brodsky for the respondent

Heard: October 27, 2014

On appeal from the acquittal entered on April 2, 2012, by Justice David L. Corbett of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A. Overview

[1] The Crown appeals Michelle Liard’s acquittal on a charge of first degree murder.

[2] On December 10, 2008, Rafal Lasota murdered Aleksandra Firgan-Hewie, a 13-year-old girl, in the bedroom of his Mississauga home. Liard was in the home when the murder occurred, but not in the bedroom. At the time she was 19 years old and was Lasota’s girlfriend.

[3] The Crown alleged that Liard and Lasota planned the murder, and that Lasota carried it out. They were jointly charged with first degree murder. At the trial before Corbett J. and a jury, Liard testified; Lasota did not. She was acquitted; he was convicted of first degree murder and received a mandatory life sentence with no eligibility for parole for 25 years.

[4] The Crown raises a single ground of appeal: the trial judge erred in law by allowing Liard, as part of her defence, to lead her lengthy police statement. The trial judge ruled that she could do so, relying on this court’s decision in R. v. Edgar, 2010 ONCA 529, 260 C.C.C. (3d) 1, leave to appeal refused, [2010] S.C.C.A. No. 466. In Edgar, this court held at para. 72:

[I]t is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination.

[5] Liard did take the stand and was cross-examined on her statement. But the Crown submits that the other two conditions for admissibility were not met: Liard’s statement was not spontaneous, because it was given 13 hours after the murder and after she had written a self-serving note to her grandmother; and it was not the first time she was confronted with an accusation of murder, because earlier Lasota’s family had questioned her about her role in the killing. The Crown also submits that even if Liard’s statement was admissible, the trial judge erred by allowing her to lead nearly all of it, instead of excising a substantial portion of it.

[6] The Crown asks for a new trial. To obtain a new trial it must persuade the court with a reasonable degree of certainty that had the trial judge not erred by admitting Liard’s statement, the verdict would not necessarily have been the same. The Crown submits that it meets this standard because Liard’s statement “overwhelmed” the jury, and thus prejudiced the Crown’s case.

B. The issues

[7] The Crown’s appeal raises four issues:

1. Did the trial judge err in finding that Michelle Liard was first confronted with an accusation of murder during her police interview?

2. Did the trial judge err in finding that Michelle Liard’s statement during her police interview was spontaneous?

3. Did the trial judge err in failing to excise part of Michelle Liard’s statement before it was shown to the jury?

4. If the trial judge did err, has the Crown shown that, but for the error, the verdict would not necessarily have been the same?

[8] I would answer “no” to questions 1, 2 and 3. In admitting Liard’s statement, the trial judge applied the correct principles and exercised his discretion reasonably. But even if he did not, I would answer “no” to question 4. The jury was well-equipped to consider the statement’s impact, and so its admission did not prejudice the Crown. I would dismiss the appeal.

C. The Crown’s case against Liard and Liard’s defence

[9] Lasota killed Aleksandra in his bedroom by stabbing and slashing her with a knife 37 times. The jury was instructed that he could be found guilty of first degree murder, second degree murder, or manslaughter. And his culpability for first degree murder could be established on either of two bases: that the killing was planned and deliberate, or that the killing took place during the commission of the offence of forcible confinement.

[10] For Liard, only two verdicts were available: guilty of first degree murder or not guilty. And her culpability required a finding that she participated in a planned and deliberate murder. The Crown’s theory that she did so rested on the following evidence: threats Liard allegedly made to Aleksandra; her actions on the day of the murder, before, during and after the murder took place; and a fictional tale of murder written by Liard and found in her bedroom. The defence’s position was that Liard did not play any role in the planning of Aleksandra’s death.

(a) The alleged threats

[11] Liard, Lasota, and Aleksandra were friends. Together, with others, they socialized at the “Tunnel”, a train underpass, which served as a hang-out for local youth. Those who met at the Tunnel varied in age from young teenagers, such as Aleksandra, to young people in their twenties, such as Lasota, who was 25. They would meet up, drink alcohol, and smoke marijuana.

[12] One of those frequenting the Tunnel was Gary MacDonald, a local thug in his mid-twenties. He and Aleksandra had become friends in the fall of 2008. Liard, however, suspected MacDonald of stealing a television set from Aleksandra and a camera and cash from Lasota. Those two incidents of theft led to repeated conversations between Aleksandra and Liard. MacDonald was eventually arrested after Liard urged Aleksandra to make a statement to police.

[13] The Crown led evidence from two young men who socialized at the Tunnel that Liard had made threatening comments to Aleksandra days before the murder. According to these witnesses, Liard told Aleksandra that she wanted to cut her up into little pieces.

[14] Liard agreed she may have said words like “don’t cut her up, chop her instead”, but said she had no malicious intent. Neither witness took her comment seriously. And Aleksandra’s diary, which was admitted into evidence, did not refer to any threats from Liard. In his jury charge the trial judge commented, “If it had been a serious threat, you might well think [Aleksandra] would have mentioned it [in her diary].”

(b) Liard’s actions before the murder: the phone call to Aleksandra

[15] On the afternoon of December 10, 2008, Liard called Aleksandra to arrange a meeting. When Liard called, Aleksandra was with her friend Rachael Miller. Miller testified that Aleksandra was told to keep the meeting secret. Liard denied that she told Aleksandra to do so.

[16] The ostensible purpose of the meeting was to discuss death threats made against Liard and Aleksandra by MacDonald, who had been charged with breaking into Aleksandra’s and Lasota’s homes. Aleksandra was expected to testify at his trial. Liard and Lasota were scared of MacDonald, who they suspected was responsible for a recent attack on Lasota, and they knew Aleksandra was reluctant to testify against him. They hoped to persuade her to do so.

[17] Liard, Lasota, and Aleksandra met at the Tunnel. All three then went to Lasota’s home, where he lived upstairs with his mother, Teresa Lasota. Lasota’s sister, Monika Lasota, and her husband, Artur Dziura, lived in a basement suite.

(c) Liard’s actions during the murder

(i) The invitation to Monika

[18] When they arrived at the Lasota home, Liard went to the basement suite and invited Monika outside for a cigarette. Dziura was asleep in their bedroom. Once outside, the two women talked about the injuries Lasota had sustained in the recent attack. The Crown contended that Liard lured Monika outside so that she wouldn’t be able to hear the murder taking place immediately above her bedroom. Liard testified that Lasota asked her to invite Monika outside. Although the two women went outside, Dziura remained in the house sleeping.

(ii) The “blocking” of Dziura

[19] The murder took place at about 5:30 in the afternoon. Dziura was awakened by banging and stomping upstairs. He came outside and asked Liard to go upstairs and find out what was happening. She went into the house and he followed her. He said that she blocked the door, preventing him from entering the hallway. He later told the police Liard had said, “don’t go there, don’t go there, everything’s okay, the girl’s okay”, and that Lasota was upstairs with a girl who had set him up to be killed. The Crown argued that these comments, attributed to Liard, showed that she was aware of what Lasota was doing.

[20] In her evidence at trial, Liard denied that she blocked Dziura’s way and denied that she said Lasota was with a girl who “set him up to be killed”. Dziura eventually agreed that Liard did not intend to block his way upstairs.

(d) Liard’s actions after the murder

(i) At the Lasota home

[21] The Crown argued that after the murder Liard went into “cover-up mode”. She washed bloody clothes in the bathroom while Lasota cleaned his bedroom; she made no effort to help Aleksandra; she lied to Monika that “the girl” had gone home; and she asked Monika and her husband not to call the police.

[22] Monika Lasota and Dziura apparently panicked, left the house, and drove around in their car for two hours. They returned and asked Lasota about the girl. He said, “she’s fine, she left.” Monika and Dziura then got back in their car and drove off again.

[23] Liard stayed with Lasota in his bedroom until his mother, Teresa Lasota, came home, close to midnight. Teresa confronted her son about what had happened. Throughout this confrontation Liard remained silent.

[24] Teresa asked Lasota if another girl had been there. Lasota said another girl had been there, they had had an argument, and she went home. Dissatisfied with her son’s explanation, Teresa went out to the backyard where she found two garbage bags. She touched the bags with her foot and they seemed soft. She went back to Lasota’s bedroom and asked him what was in the bags. He said his clothing. She didn’t like his answer and pressed him about the contents of the bags and the girl. She threatened to open the garbage bags herself. She then asked him if he had killed the girl. He started crying and admitted to killing the girl, but claimed that it was an accident. Teresa called the police.

(ii) After leaving the Lasota home

[25] After Teresa Lasota called the police, Lasota and Liard fled together. They separated after they saw the police driving around the neighbourhood. Liard went towards her own house, but on seeing the police outside, she waited across the street until they left.

[26] Liard then went inside the house and wrote a note to her grandmother, with whom she lived. The note was, in the trial judge’s words, “patently self-serving”. Liard left it in plain view on the kitchen table. In the note she said:

Rafal has done something horrific … [he] has murdered one of my friends. I had nothing to do with this and I’m very scared.… [T]his letter is [to] you because I know the police will not believe me because of how close I am with Rafal, only to know that I’ll never see him again and my life is in jeopardy.

[27] Liard then waited at her house for the police to return. They came back at about 5:30 a.m. – 12 hours after Aleksandra was murdered – and Liard agreed to accompany them to the police station, to be questioned as a potential witness. She was not under arrest. Meanwhile, around 7:15 a.m., the police found Lasota and arrested him for murder.

[28] At trial, Liard explained that when she found out about Aleksandra’s murder she was in a state of shock. She washed the clothing, lied to Monika and wrote the note because she was unable to think clearly. She wanted to hide what Lasota had done because she loved him.

(e) Liard’s fictional tale of murder

[29] The police searched Liard’s bedroom and found an unfinished story she had written. The story told of the abduction, torture, and murder of a young blonde girl who is captured and stabbed many times by her assailants Rafal, “Meesha” (Liard’s nickname), and their friend Matté. The Crown argued that the story gave insight into Liard’s interests and fantasies, and eventually her actions.

[30] In her defence, Liard testified that she wrote the story in October 2008 for her English class. Her English teacher testified and spoke highly of Liard and her writing potential. She said that the class was learning how to write short stories. One mode of storytelling was “first person witness”. In her story, Liard combined that mode of narrative with her interest in horror. Liard agreed that the characters in her story dreamed of a thrill kill – a murder where the only motive is the pleasure derived from it. She said the moral of her story was “stay away from that kind of behaviour, ‘cause look where it gets you.”

[31] Liard’s story and Aleksandra’s murder contained significant dissimilarities, which undermined the story’s value as a piece of circumstantial evidence supporting the Crown’s case. The victim in Liard’s story was a stranger; Aleksandra was Liard’s friend. In the story, the victim was killed by Matté in a motel room; Aleksandra was killed by Lasota in his bedroom. In the story, Liard’s character derived pleasure from the protracted torture, which was witnessed by all three characters; the murder of Aleksandra was fast and frenzied, and witnessed only by the murderer, Lasota.

D. Liard’s statement, the trial judge’s ruling, and his instructions to the jury

(a) Liard’s police statement

[32] The police began their interview of Liard at 6:30 a.m. on December 11, 2008 – 13 hours after Aleksandra was murdered. Throughout her interview, Liard was emotional, and much of the time hysterical. She screamed and cried uncontrollably, mainly about the hardship she and Lasota would face because of Aleksandra’s murder. At times she hyperventilated, rocked back and forth, banged on the table, talked to herself, prayed out loud, and yelled through the wall to Lasota, who was in the next interview room.

[33] Early in the interview, Liard described what she had done when she realized something was happening in Lasota’s bedroom. She said she ran upstairs but “Rafal’s got the door blocked; and I can’t get it open like, I can get it open just enough to see blood.” She said Lasota “must’ve just gone nuts”.

[34] Liard did not attempt to hide what she did after the murder. She admitted that she lied to Monika. Twenty-three minutes into the interview she told the police that Lasota cleaned up the room while she washed the bloody clothes. She was then cautioned and charged as an accessory after the fact.

[35] Liard lamented that Lasota “fucked up” her life, just when it had begun to improve. He had been treating her well and wanted to marry her. She claimed to be pregnant with his child (though in fact she was not). She said repeatedly and tearfully that she both loved him and hated him.

[36] At 12:38 p.m. – nearly six hours into the interview – Liard was charged with first degree murder. She replied, “I’m fucking innocent”, and appeared stunned by the charge. When asked if she understood her right to counsel, she didn’t respond. When she finally managed to speak she asked, “how is this possible?”, and later repeated, “I’m innocent”. She continued to protest her innocence until the interview ended at 4:14 p.m. – nine hours and 23 minutes after it began.

(b) The trial judge’s ruling

[37] The trial judge ruled that Liard’s police statement could be led in evidence during her examination-in-chief. In an email to counsel, he gave brief reasons for his ruling:

The statement will be admitted for the purpose of the jury being [able] to assess Ms. Liard’s demeanour at the time she made the statement, and to consider her response when she is first taxed (a) with her after-the-fact conduct; (b) with the allegation that she acted as an [accessory] after-the-fact; and (c) with the allegation of first degree murder. The statement is not admitted for the truth of its contents, and I will remind the jury that repetition of evidence, simpliciter, neither adds nor detracts to its truth. I will not advise the jury that the statement rebuts an allegation of recent fabrication (since no such allegation has yet been made).

I am indebted to all counsel for their assistance on this point. It was a close call. Written reasons will follow at the conclusion of the trial.

[38] The trial judge allowed Liard to put in evidence the first seven hours and 42 minutes of her interview. The jury watched the video of the interview over three days. Liard was then cross-examined by the Crown both on her trial evidence and on her police interview. During the cross-examination, the Crown put to Liard that her police statement was contrived, which she denied.

Q. Right. Is the reason why you were so emotional on the video is that you didn't actually think the police were going to believe you?

A. No. No, no.

Q. You – were you trying to convince them by your demeanour that they ought to believe you?

A. No.

Q. You knew because of your – as you say, you’ve, you’ve gone to the police station and given statements before. You knew that everything you said in that interview room was going to be videotaped, correct?

A. Yeah.

Q. Right. I'm going to suggest to you, Ms. Liard, that you knew that other people, not just the police but other people, may well be watching the statement you gave to the police on video while you were giving it?

A. I wasn't thinking that, no.

Q. All right. Okay. And I'm going to suggest to you that's why your demeanour is so different than the demeanour that Monika Lasota testified to when you were speaking to her at the house?

A. No.

[39] After the verdict the trial judge released reasons for 19 of his rulings, including lengthy reasons for his ruling allowing Liard to put in evidence her police interview. Two paragraphs of his ruling captured the essence of his reasoning. First, at para. 280, he wrote:

As demeanour evidence, the manner in which a person gives her police statement may be far more compelling than her evidence in court. I considered that Ms. Liard’s police statement conveyed her evidence powerfully. Ms. Liard’s performance in the witness box, however, seemed contrived and measured by comparison. It lacked the spontaneity and naturalness of her police statement. This is not to say that she was telling the truth to the police, and not doing so at court. Rather, I had the strong impression that we were getting far more of the “real Michelle Liard” during the police statement than during her testimony.

[40] And then, at para. 340:

I considered Ms. Liard’s video statement to be powerful evidence of her state of mind. Not all of it was favourable for Ms. Liard. She seemed genuinely upset, but on the whole she seemed more upset about losing her relationship with Mr. Lasota than she did about the death of Ms. Firgan-Hewie. She screamed “I love you” hysterically through a wall when she heard Mr. Lasota on the other side: this to a man she had dated for a couple of months and who had just brutally murdered one of her friends with a knife.

(c) The trial judge’s jury instructions

[41] The trial judge gave the jury both mid-trial and final instructions on how they could use Liard’s police statement. These instructions were not challenged at trial and are not challenged on appeal.

[42] Immediately before Liard’s statement was played for the jury, the trial judge outlined its purpose and permissible uses, and cautioned against its impermissible uses. He said:

You're not to consider it for the truth of its contents, as I've told you before. Because somebody says something in the past doesn't make the thing, or says it five times, doesn't make it more or less true. It's being played for you to give you an opportunity to observe Ms. Liard's demeanour on the 11th of December, shortly after the events that, that are the subject matter of this trial and to – for you to assess her emotional state and her demeanour as she's relating these events to police at a time that's very close in time to the events that are in issue.

[43] During his charge, the trial judge gave the jury more instructions on the proper and improper uses of Liard’s statement. He reiterated his earlier caution that simply because Liard repeated her testimony did not make it more likely to be true. He told the jury that Liard could have fabricated her statement, as she and Lasota had plenty of time together to “devise some sort of story”. He instructed the jury to weigh “the possibility that her police statement was self-serving.” And he pointed out those considerations supporting the authenticity of her statement: the shocking nature of the killing; the stress Liard was under; and the corroboration for parts of her statement from Aleksandra’s diary and Aleksandra’s own statements to the police. As I have said, the Crown has not objected to these instructions – or indeed to any part of the trial judge’s charge to the jury.

E. Did the trial judge err by allowing Liard to lead her police statement as part of her defence?

(a) This court’s judgment in Edgar

[44] Under our rules of evidence, an exculpatory out of court statement given by an accused is generally inadmissible. Under this general exclusionary rule, an accused who has given a previous statement consistent with the accused’s trial testimony cannot lead evidence of it.

[45] In Edgar, at paras. 18-34, Sharpe J.A. outlined five of the main reasons justifying this traditional exclusionary rule.[^1]

• The statement is hearsay.
• The statement may be fabricated.
• Admitting the statement would impair the goal of trial efficiency.
• The statement will have minimal or no probative value
• Admitting the statement would amount to impermissible oath helping.

[46] But our courts have also carved out exceptions to this exclusionary rule. Before Edgar, the recognized exceptions under which a previous consistent statement has been held to have probative value included statements to demonstrate an accused’s state of mind at the time the offence was committed or to rebut an allegation of recent fabrication, and statements made as part of the res gestae.[^2] , [^3]

[47] In establishing these exceptions, courts have recognized that excluding the evidence in certain cases would not serve the reasons underlying the general exclusionary rule. In Edgar, Sharpe J.A. carved out another exception, which I set out as follows:

A trial judge may admit an accused’s spontaneous out-of-court statement made on arrest or when first confronted with an accusation of a crime, if the accused testifies and can therefore be cross-examined.

[48] In formulating this exception, Sharpe J.A. also discussed why excluding these spontaneous statements does not serve the five reasons underlying the general exclusionary rule.

Hearsay

I find the cases cited above entirely persuasive on the point that the hearsay rationale for exclusion of a prior consistent statement evaporates where the accused takes the stand and exposes himself or herself to cross-examination. [Para. 68.]

Risk of Fabrication

I am also of the opinion that too much is easily made of the risk of fabrication. To assert blindly that all statements made by an accused person upon arrest are fatally tainted with self-interest and the motivation to lie assumes guilt and runs counter to the presumption of innocence.…The risk of fabrication can be dealt with more directly and precisely through cross-examination and by looking to the degree of spontaneity the proffered statement exhibits. Statements that are lacking in spontaneity may be either excluded or, in the case of doubt, made the subject of an instruction to the jury as to weight by the trial judge. [Para. 69.]

Trial efficiency

Trial efficiency is an important factor generally but rarely, if ever, will it justify the exclusion of relevant, probative evidence that could lead the trier of fact to acquit. [Para. 70]

No Probative Value

The English authorities make a persuasive case that such statements will very often have significant probative value. While probative value will depend upon the facts and circumstances of each case, I agree with the English authorities that an accused person's spontaneous reaction to an accusation may be of "vital relevance" and "one of the best pieces of evidence that an innocent man can produce is his reaction to an accusation of a crime". [Para. 65.]

Oath helping

The rule against oath-helping does no more than restate the need for evidence to have probative value. If evidence fails to add anything new, repetition is less than helpful. However, where an accused makes a spontaneous statement in the face of an accusation or arrest for a crime, something is added. The reaction of the accused in such circumstances may yield persuasive evidence of innocence, which has quite a different quality than the accused's testimony given months or years later in the formal proceedings of the courtroom. [Para. 67.]

[49] Sharpe J.A. also discussed the relevance of statements admitted under the Edgar exception. The statements are evidence of an accused’s reaction to being accused of a crime and are relevant to show consistency with an accused’s trial testimony. Thus, although not admissible for the truth of their contents,[^4] they are relevant to an accused’s credibility and as a piece of circumstantial evidence bearing on an accused’s guilt or innocence. In short, the statements are relevant because an accused’s immediate reaction to an accusation of a crime may be more reliable and more probative than the accused’s testimony given years later in a courtroom. See para. 72.

[50] Under Edgar, to put into evidence a previous exculpatory statement, an accused must meet three requirements:

• The accused must testify.
• The statement must be made when the accused was arrested or when first accused of committing a crime.
• The statement must be spontaneous.

[51] The first requirement is factual. Liard met this requirement: she testified and was cross-examined on her statement by the Crown. The trial judge explicitly found that Liard met the third requirement, and found at least implicitly that she met the second requirement. He therefore allowed Liard to lead her police statement as part of her defence. The Crown submits that in doing so, he erred. The Crown contends that Liard met neither the second nor the third requirement for admissibility.

[52] The trial judge’s decision to permit Liard to show her police statement to the jury was a discretionary decision. It attracts the usual principle of appellate deference. The Crown must show that the trial judge erred in principle or made an unreasonable finding.

[53] I now turn to the Crown’s three complaints about the trial judge’s ruling.

(1) Did the trial judge err by finding that Michelle Liard was first confronted with an accusation of murder during her police interview?

[54] Under the Edgar exception for prior consistent statements, only an accused’s spontaneous reaction “made upon arrest or when first confronted with an accusation” of a crime is admissible. This requirement makes common sense and is linked to the requirement of spontaneity. The natural reaction of a person first confronted with a false accusation of criminal wrongdoing would be to immediately assert one’s innocence.

[55] The accusation of a crime need not come from the police. Although earlier in his reasons, Sharpe J.A. referred to an accused’s statement “when first confronted by the police with an accusation, or upon arrest” (see paras. 24 and 41), his final formulation of the exception, at para. 72 of his reasons, was not so limited. Later decisions of this court have confirmed that the confrontation need not come from the police. See R. v. Kailayapillai, 2013 ONCA 248, 115 O.R. (3d) 363, leave to appeal refused, [2014] S.C.C.A. No. 35, at paras. 64-65.

[56] But the confrontation must include an accusation of a crime. Statements by civilians – even confrontations – which are not accusatory, will not affect the spontaneity of an accused’s reaction to a later police accusation of a crime.

[57] In my opinion, the trial judge implicitly found that Liard was first confronted with an accusation of a crime during her police interview. In the email to counsel in which he gave brief reasons for allowing Liard to lead the statement in evidence, the trial judge wrote:

The statement will be admitted for the purpose of the jury being [able] to assess Ms. Liard’s demeanour at the time she made the statement, and to consider her response when she is first taxed (a) with her after-the-fact conduct; (b) with the allegation that she acted as an [accessory] after-the-fact; and (c) with the allegation of first degree murder. [Emphasis added.]

And in his mid-trial jury instruction, he said the statement “gives you an opportunity to assess her reaction at the very time that those allegations are made to her” (emphasis added).

[58] Although the trial judge’s written reasons did not directly address whether the police interview was the first time Liard was confronted with the allegations, this finding is implicit. And although implicit, it is a finding of fact. Unless it is an unreasonable finding, it is entitled to deference on appeal. In my opinion, the trial judge’s finding was reasonably supported by the evidence.

[59] The Crown submits that Liard was first confronted with her role in the killing at the Lasota home, initially by Monika Lasota and Dziura, and then by Teresa Lasota. I do not agree. The record does not contain any direct evidence that any member of the Lasota family confronted Liard with an accusation she was complicit in the killing of Aleksandra.

[60] Monika Lasota and Dziura confronted Liard and Lasota and demanded to know what had happened to Aleksandra, but they did not accuse Liard of participating in her murder. Teresa Lasota questioned her son and eventually her questions became accusatory. She asked him, but not Liard, “if he killed that girl”. Teresa Lasota’s accusatory confrontation with her son does not help in evaluating Liard’s reaction to the police’s accusation of criminal wrongdoing.

[61] I would answer this first question “no”. The trial judge did not err in finding that Liard was first confronted with an accusation of committing a crime during her police interview.

(2) Did the trial judge err in finding that Michelle Liard’s statement during her police interview was spontaneous?

[62] The requirement that the accused’s statement be spontaneous is the critical requirement for admissibility under the Edgar exception. Spontaneity is what gives the statement its probative value and justifies its admission. A spontaneous reaction is more likely “to truly reflect the individual’s honest and genuine reaction to the allegation”, and thus is more likely to be a reliable reaction. See Kailayapillai, at para. 60. Conversely, when an accused has an opportunity to “think things through”, the spontaneity of the statement is diminished, and in some cases eliminated altogether.

[63] No single consideration, no single point in time, determines whether the spontaneity requirement has been met. The passage of time between the crime and the accused’s reaction to an accusation of committing it, and any intervening events, are undoubtedly relevant. But spontaneity lies along a spectrum. And along that spectrum, the degree of spontaneity may vary. In Edgar itself, the accused made three statements – the third, four hours after he was arrested. Sharpe J.A. held that all three statements were admissible. In R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, in an obiter comment at para. 71, Rouleau J.A. said he would have admitted under the Edgar exception a statement given by the accused on arrest, even though the arrest took place more than a month after the victim’s disappearance and over a week after her body was discovered.

[64] Thus, in determining whether an accused has satisfied the spontaneity requirement, the trial judge must consider all the circumstances of the case – the passage of time, any intervening events, and the making of the statement itself. Importantly, as Sharpe J.A. pointed out in Edgar, at para. 69, when in doubt about spontaneity, the trial judge should admit the statement and allow the jury to assess its weight. Proper jury instructions can eliminate any risk of the jury’s misuse of the statement.

[65] The trial judge applied these principles in finding that Liard had met the spontaneity requirement. The Crown makes four submissions on why he erred in that finding. First, the time between the murder and Liard’s police interview – 13 hours – was too long for her statement to be spontaneous. Second, and related, Liard’s note to her grandmother, written before her police interview, shows she had a chance to “think things through”. Third, the trial judge erroneously relied on the presumption of innocence to find that the spontaneity requirement had been met. And fourth, decisions of this court after Edgar are at odds with the trial judge’s ruling.

[66] I do not agree with any of these four submissions. I will deal with the Crown’s first two submissions together. The trial judge expressly considered the gap of 13 hours between the time Lasota killed Aleksandra and the time Liard began her police interview, and he expressly considered that before her interview Liard had a chance to “think things through” and write a self-serving note to her grandmother.

[67] Yet the trial judge found Liard’s reaction during his police interview, and particularly to the charge of murder, to be spontaneous. That was a reasonable finding and is supported by several considerations.

• The trial judge had the advantage we do not of watching Liard’s trial testimony and comparing it to her police interview. He was persuaded that Liard’s police statement conveyed her evidence powerfully. At para. 280 of his ruling he said: “I had the strong impression that we were getting far more of the “real Michelle Liard” during the police statement than during her testimony.”
• Initially, Liard was questioned not as an accused, but as a witness. Moreover, during a good part of her interview, especially up to the time she was charged with murder, Liard was not trying to exculpate herself. Instead, she gave quite incriminating evidence about her role in cleaning up the murder scene.
• Liard was only 19 years old when she was questioned by the police.
• Part of her statement was corroborated by Aleksandra’s diary.
• The trial judge concluded that “the police statement is rich in details” and “contained significant emotional content”.

[68] All of these considerations reasonably supported the trial judge’s finding that “the police statement is, on its face, spontaneous”. I am not persuaded we should interfere with this finding, which the trial judge himself recognized was a “close call”.

[69] The Crown’s third submission concerns the trial judge’s reliance on the presumption of innocence. The Crown argues that the trial judge relied on the presumption to find that the spontaneity requirement had been satisfied, and in doing so, wrongly assumed that a presumptively innocent accused can never anticipate being confronted with a charge of premeditated murder.

[70] I do not think that the Crown’s argument reflects what the trial judge meant in the paragraph of his reasons that is challenged. The relevant paragraph is 341, where the trial judge says:

If the theory of the case is that the two accused planned and executed a cold-blooded murder, for the sheer thrill of it, then there was plenty of time for them to concoct a story, both before and after the murder had been committed. That is the Crown’s primary theory. But if the analysis is based on this not being a planned and deliberate killing, and a presumption that Ms. Liard had not known that Mr. Lasota would kill Ms. Firgan-Hewie, then the degree of spontaneity involved appears rather differently. I approach my assessment of this issue with the presumption of innocence firmly in mind.

[71] In this paragraph, the trial judge is assessing the requirement of spontaneity against the Crown’s theory that Liard participated in a planned and deliberate murder. If the Crown’s theory was correct, then Liard’s police statement would likely not have been spontaneous, because in planning the murder, Lasota and Liard would likely have concocted a story to tell the police. The trial judge was saying only that in assessing whether the requirement of spontaneity had been met, he could not presume that the Crown’s theory was correct. To give effect to the presumption of innocence, he had to presume the opposite. He did not err in doing so.

[72] Finally, the Crown relies on two decisions of this court, released after Edgar: R. v. Badhwar, 2011 ONCA 266, 270 C.C.C. (3d) 129, and R. v. Kailayapillai. The Crown contends that both decisions are inconsistent with the trial judge’s ruling. I do not agree.

[73] In Badhwar, an accused and his friends were street racing and their actions caused the death of the driver of another vehicle. The accused gave a statement to the police five hours after the incident and after he had stopped to speak to his friends. Moldaver J.A. found that in the circumstances the accused’s statement had little probative value because it lacked spontaneity. In Kailayapillai, the accused was questioned by the police about his wife’s murder approximately seven hours after it took place. Doherty J.A. refused to admit the accused’s statement under Edgar because he had no basis in the record to find that the statement was either spontaneous or made when the accused was first confronted with an accusation of a crime.

[74] Two points about Badhwar and Kailayapillai are important. First, neither changed the core reasoning in Edgar. Second, in both cases an Edgar ruling was not sought at trial and was instead raised for the first time on appeal. Thus, in neither case did the trial judge examine the circumstances surrounding the making of the accused’s statement. The accused bears the onus of establishing that the statement was spontaneous and made when first confronted with an accusation. In neither Badhwar nor Kailayapillai could the accused do so.

[75] This case is quite different. At trial, Liard sought a ruling that her statement was admissible under Edgar. And she led evidence about her police statement that satisfied the requirements in Edgar. This court’s decisions in Badhwar and Kailayapillai do not assist the Crown on this appeal.

[76] I would answer the second question “no”. The trial judge did not err in finding that Liard’s statement during her police interview was spontaneous.

(3) Did the trial judge err by failing to excise part of Michelle Liard’s statement before it was shown to the jury?

[77] Michelle Liard’s police statement was nine hours and 23 minutes long. The trial judge allowed the jury to see the first seven hours and 42 minutes. Liard was charged with first degree murder nearly six hours into her interview, and the officer who charged her left the interview room about ten minutes later. He returned after about 30 minutes to continue the interview.

[78] The Crown submits that only the portion of Liard’s interview during which she was charged with murder and her immediate reaction to the charge, before the officer left the room, should have been played for the jury. Much of the interview was not accusatory: the police were simply questioning Liard and gathering information from her. Thus, in most of the over seven hours of her interview played for the jury, Liard was not reacting to a specific charge. According to the Crown, that large part of Liard’s interview during which she was not reacting to the charge of murder should not have been put before the jury.

[79] I do not agree with the Crown’s submission. Liard’s interview was continuous, and its entire context mattered. The jury would not have been able to properly evaluate Liard’s reaction to the charge, which came toward the end of her interview, without taking into account what came before. Editing out and isolating part of the interview would likely have undermined the jury’s ability to assess the probative value of Liard’s statement. The better course was to admit the entire statement (or virtually all of it) and let the jury decide what weight to give to it. That is the course the trial judge followed.

[80] I would therefore answer this question “no”. The trial judge did not err by failing to excise part of Liard’s police statement before it was shown to the jury.

[81] Thus, I conclude that in admitting Liard’s statement, the trial judge applied the principles in Edgar and exercised his discretion reasonably. Although my overall conclusion and my answer to the first three questions suffice to decide this appeal, I will discuss the fourth issue, which arises only if the trial judge erred in allowing Liard to lead her police statement before the jury.

(4) If the trial judge did err, has the Crown shown that but for the error, the verdict would not necessarily have been the same?

[82] The Crown bears a heavy onus to overturn a jury’s verdict of acquittal. Under the Criminal Code, it cannot appeal factual errors, or even errors of mixed fact and law. It can appeal only a question of law. And then it must establish to “a reasonable degree of certainty” that but for the error of law, the verdict would not necessarily have been the same. See R. v. Graveline, 2006 SCC 16, 207 C.C.C. (3d) 481, at paras. 13-16; R. v. Vézeau (1977), 1976 7 (SCC), 28 C.C.C. (2d) 81 (S.C.C.), at pp. 278-30. In applying this standard, both the nature of the legal error and the overall strength of the Crown’s case are relevant considerations.

[83] The Crown contends that allowing the jury to view Liard’s police statement mattered because it overwhelmed the jury. In the statement, Liard portrayed herself as an unwitting accomplice whose life had “crumbled apart” because of the murder. The Crown says that the jury had to be affected by the image of a distraught young woman crying endlessly over the course of a prolonged video statement. The Crown supports its contention by pointing to the trial judge’s comment in his reasons given after the verdict: the police statement may have made “the difference between conviction and acquittal.”

[84] I do not accept the Crown’s contention, and I do not think it has accurately interpreted what the trial judge meant by his comment.

[85] The nature of the error relied on by the Crown is important. This is not a case where the Crown was wrongly precluded from leading evidence potentially probative of the accused’s guilt. Instead, the Crown claims the trial judge erred by admitting defence evidence that had no probative value. If indeed Liard’s statement simply had no probative value, then its impact would have been neutral. It would not have affected the verdict. To meet the standard for obtaining a new trial the Crown has to do more than show Liard’s statement had no probative value. It has to show that allowing the jury to see Liard’s police statement was unfairly prejudicial and because of this prejudice, the admission of the statement affected the verdict.

[86] In my opinion the Crown cannot meet this burden. Although the statement was played over three days and took up much of the defence’s evidence, the jury was well-equipped to fairly assess its significance. It had the benefit of the Crown’s cross-examination, and the trial judge’s correct jury instructions on the proper and improper uses of the statement. The jury was cautioned not to consider the statement for the truth of its contents and not to conclude that Liard’s mere repetition of her exculpatory evidence made it more likely to be true.

[87] Either Liard’s statement was, as the Crown alleged, a contrived attempt to portray her innocence, or as the trial judge seemed to think, a portrayal of “the real Michelle Liard.” The jury was capable of deciding whether they accepted the Crown’s allegation. If they did, presumably they would have given the statement little, if any, weight. Courts frequently say we must trust the common sense of jurors. See, for example, R. v. Corbett, 1973 199 (SCC), [1975] 2 S.C.R. 275. As Lisa Dufraimont notes in “Evidence Law and the Jury: A Reassessment” (2008) 53 McGill L.J. 199, at p. 231, “the findings of jury researchers have suggested that jury fact-finding is “remarkably competent”.” I see no reason not to trust the jury in this case. In my view, the playing of Liard’s statement did not unfairly prejudice the Crown’s case.

[88] Moreover, the Crown’s case itself – at least in the trial judge’s opinion – was not particularly strong. And as I have said, the strength of the Crown’s case is relevant in assessing whether, but for allowing Liard to lead her police statement, the verdict would not necessarily have been the same.

[89] Liard was charged with participating in a planned and deliberate murder. In his charge to the jury, the trial judge outlined the weaknesses in the Crown’s theory. If the killing was planned and deliberate, in the trial judge’s view “it was a very bad plan”. He added that the “affirmative evidence that Ms. Liard was helping Mr. Lasota carry out the killing … does not seem particularly strong.” He noted:

• Planning a killing while members of the Lasota family were home made little sense.
• Similarly, killing the victim in one’s bedroom on a mattress bound to be soaked with blood seemed foolish.
• Lasota did not even bind or gag Aleksandra.
• Neither Lasota nor Liard had a plan to dispose of the body.
• Neither had a get-away plan.

The dubious strength of the Crown’s case against Liard further undermines its request for a new trial.

[90] Finally, I address the trial judge’s comment that the police statement may have made “the difference between conviction and acquittal”. The quoted words come from the report of the Honourable Fred Kaufman on Guy Paul Morin’s wrongful conviction. In the report, Commissioner Kaufman noted the Morins’ submission that:

If the jury had heard [Guy Paul Morin’s] repeated and emphatic protestations of innocence through a long and tiring interrogation, it may have made the difference between conviction and acquittal.

[91] Commissioner Kaufman agreed with the Morins that the law should be changed to allow accuseds to lead their exculpatory statements made on arrest, and included this recommendation in his report. Here, I think the trial judge simply meant that allowing the jury to hear Liard’s police statement may have helped avoid a wrongful conviction.

[92] I would answer the fourth question “no”. Even if the trial judge erred in admitting Liard’s police statement, the Crown has not shown that but for the error the verdict would not necessarily have been the same.

F. Conclusion

[93] In ruling that Liard could lead her statement to the police as part of her defence, the trial judge applied the proper legal principles and exercised his discretion reasonably. And even if he did not, the Crown has failed to show that had he not allowed Liard to lead her police statement, the verdict would not necessarily have been the same. I would therefore dismiss the Crown’s appeal.

[94] I end these reasons with the following comment. This was a long and hard-fought trial, replete with many motions, both pre-trial and mid-trial. The trial must have been emotionally draining for all the participants. It is very much to the trial judge’s credit that his conduct of the trial gave rise to only a single ground of appeal.

Released: June 9, 2015 (“G.E.”)

“John Laskin J.A.”

“I agree. Gloria Epstein J.A.”

“I agree. K. van Rensburg J.A.”

[^1]: Sharpe J.A. drew these reasons from a survey of the jurisprudence. Other cases have identified related reasons justifying the exclusion of a previous consistent statement: the statement will be self-serving (see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5), and admitting the statement runs the risk a jury may wrongly conclude that repetition renders the statement more credible (see R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31).

[^2]: Literally translated, res gestae means “things done”. It refers to the facts surrounding or accompanying a transaction. Statements made naturally and spontaneously, and without deliberation, during the course of an event may form part of the res gestae.

[^3]: In his article, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right” (2013) 17 Can. Crim. L. Rev. 181, Justice David Paciocco sets out and discusses all the exceptions. He lists nine of them.

[^4]: Unless they meet the necessity and reliability requirements under the “principled” approach to the admission of hearsay evidence.