Court of Appeal for Ontario
Date: 2025-06-06
Docket: C69726
Coram: Gomery, Dawe and Wilson JJ.A.
Between:
His Majesty the King (Respondent)
and
Adam Picard (Appellant)
Counsel:
Howard Krongold, for the appellant
Roger Pinnock and Tracy L. Kozlowski, for the respondent
Heard: October 31, 2024
On appeal from the conviction entered by Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a jury, on October 24, 2018.
Gomery J.A.:
Introduction
[1] On October 24, 2018, a jury convicted Adam Picard of the first degree murder of Fouad Nayel. Mr. Nayel was killed during the early afternoon of June 17, 2012, at a hunt camp on Brydges Road, in a remote wooded area west of Ottawa. He was shot at least once in the head with a shotgun. His remains were found five months later, partially buried at a site off Norton Road, about six kilometers away.
[2] The Crown’s theory was that the appellant induced Mr. Nayel to ride with him in his Jeep to Brydges Road on the pretext of wanting to buy a large quantity of marijuana from him. According to the Crown, the appellant’s real intention was to rob Mr. Nayel of money and drugs and kill him with a shotgun that he had purchased a few days earlier. After the appellant shot Mr. Nayel at the hunt camp on Brydges Road, he buried his body, returned to Ottawa and, with the help of his brother and sister-in-law, cleaned up and disposed of Mr. Nayel’s personal belongings. The appellant returned to Brydges Road a few days later and moved Mr. Nayel’s remains to the new burial site off Norton Road, which he attempted to conceal with cement.
[3] The appellant testified at his trial. He admitted that he drove Mr. Nayel to Brydges Road on June 17, 2012, that his gun was used to shoot Mr. Nayel, that he returned to Ottawa with the marijuana that Mr. Nayel had brought with him that day, and that he arranged to dispose of Mr. Nayel’s personal effects.
[4] The appellant denied shooting Mr. Nayel, however. He testified that Mr. Nayel asked him to accompany him to a drug buy, which Mr. Nayel only belatedly disclosed involved a purchase of cocaine. After the appellant picked up Mr. Nayel in his jeep in Ottawa, he drove them, based on Mr. Nayel’s directions, to the hunt camp on Brydges Road. Once there, the two men from whom Mr. Nayel had arranged to buy cocaine became angry because he did not bring the full purchase price for it. One of the men grabbed the appellant’s gun from an open trailer behind the jeep and shot Mr. Nayel, killing him. The men threatened to harm the appellant and his family if he went to the police. They made him dig Mr. Nayel’s grave and threw his gun into the trailer behind his Jeep as he was driving away. The appellant denied that he later moved Mr. Nayel’s body to Norton Road.
[5] At trial, the appellant sought to elicit evidence from a lawyer he retained after his arrest. In particular, he wanted her to testify about what he initially told her about the two men he said were responsible for Mr. Nayel’s death. Following a voir dire, the trial judge excluded this proposed evidence as a prior consistent statement.
[6] The trial judge instructed the jury that it could acquit the appellant or convict him of manslaughter, second degree murder, or first degree murder. The jury was left with two alternative routes to convict the appellant of first degree murder. The first route was for the jury to find that the murder was planned and deliberate, and that the appellant had lured Mr. Nayel to Brydges Road to murder him for drugs and money, as argued by the Crown. The second route arose out of evidence from the appellant’s brother and sister-in-law that the appellant told them that he and an army buddy had planned to rob Mr. Nayel at the hunt camp, and that Mr. Nayel was shot by this other person during the robbery. The jury was instructed that on this scenario they could find the appellant guilty of constructive first degree murder based on the combined effect of the party liability provisions in s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46, and s. 231(5)(e), which makes a murder first degree murder if it is committed in the course of a kidnapping.
[7] The appellant appeals his conviction. He submits that:
(i) The trial judge erred in excluding his statement to his first lawyer;
(ii) The trial judge erred in instructing the jury that the appellant could be convicted of first degree murder under s. 231(5); and
(iii) In the alternative, the trial judge erred in failing to instruct the jury on the findings it would have to make to ground a first degree murder conviction under s. 231(5).
[8] I would dismiss the appeal. With respect to the first ground of appeal, it was open to the trial judge to exclude the appellant’s statements to his lawyer about the events of June 17, 2012 on Brydges Road as prior consistent statements that had only limited probative value, which was outweighed by their potential prejudicial impact.
[9] With respect to the second ground of appeal, there was an evidentiary basis on which the jury could have concluded that the Crown had proved the five elements in R. v. Harbottle required for a constructive first degree murder conviction; including, in particular, that the appellant kidnapped Mr. Nayel, that he was liable for second degree murder, and that he actively contributed to Mr. Nayel’s killing. If it concluded that the Crown had proved the Harbottle elements, the jury could convict the appellant of constructive first degree murder even if the Crown did not prove that he pulled the trigger.
[10] With respect to the third ground, the trial judge’s instructions, read functionally and as a whole, equipped the jury to understand what the Crown had to prove to obtain a first degree murder conviction under s. 231(5) and the factual findings required for such a conviction.
A. The Trial Proceedings
(1) The Crown’s Case
[11] The appellant was arrested and charged with Mr. Nayel’s murder in December 2012. In November 2016, the charge was stayed based on a breach of the appellant’s right to a speedy trial under s. 11(b) of the Canadian Charter of Rights and Freedoms. In September 2017, this court allowed a Crown appeal, quashed the stay of proceedings, and remitted the case back for trial. [1] The appellant’s trial took place over 34 days between September 4 and October 24, 2018. I will review only the evidence necessary to provide context for the issues on appeal.
[12] At trial, the defence ultimately conceded that (i) since the spring of 2012, the appellant had been regularly purchasing marijuana from Mr. Nayel, which he resold in Thunder Bay at a profit; (ii) in the week preceding Mr. Nayel’s shooting, the appellant arranged to meet with him on June 17, 2012 to buy marijuana from him; (iii) they drove together in the appellant’s Jeep to the hunt camp on Brydges Road, leaving Mr. Nayel’s car parked in Bells Corners; (iv) the appellant brought with him the Mossberg 500 shotgun that he had acquired a few days earlier; (v) at the hunt camp, Mr. Nayel was shot twice with the appellant’s gun; (vi) the appellant returned to Ottawa and disposed of some of Mr. Nayel’s belongings; and (vii) the appellant lied repeatedly to Mr. Nayel’s family and the police about what happened on June 17, 2012. I will accordingly not review the Crown’s evidence on these issues.
[13] Beyond this, the Crown sought to establish that the appellant killed Mr. Nayel for drugs and money; that the murder was planned and deliberate; and that the appellant later moved Mr. Nayel’s remains from Brydges Road to the Norton Road site where they were found five months later.
[14] The Crown led evidence to show that, after buying the Mossberg shotgun on June 12, the appellant practiced shooting it. Phone records also established that he drove west of Ottawa on June 14, near the area where Mr. Nayel would be shot three days later. Photographs and testimony established that the hunt camp was located in an isolated area, hidden from any other cottages or houses.
[15] The Crown relied on phone records consistent with its theory that the appellant and Mr. Nayel drove together from Ottawa to the area of Brydges Road on June 17. (As mentioned earlier, the appellant ultimately admitted that he drove Mr. Nayel to Brydges Road on June 17, and that he was present when Mr. Nayel was shot.) Phone records also showed that, as the appellant drove back from Brydges Road after Mr. Nayel’s death, he contacted his marijuana buyer in Thunder Bay.
[16] The appellant’s brother, Darcy Picard, and his sister-in-law, Jamie Taniwa, were important Crown witnesses. [2] They were involved in the appellant’s marijuana resale business and confirmed that he asked to borrow tarps from them a few days before he met with Mr. Nayel on June 17.
[17] Darcy and Jamie testified that the appellant arrived at their house in the afternoon of June 17. They recalled that he was visibly scared and upset. According to Darcy, the appellant had speckles of blood on his legs and clothing. The appellant’s fiancée at the time, Heather Cameron, also testified that, when the appellant arrived home later that day, he had a drop on the back of his shirt that looked like blood.
[18] Darcy and Jamie testified that, when the appellant arrived at their house on June 17, they agreed to help him get rid of a tarp with some items rolled inside it. They also agreed to store a cooler full of marijuana. Darcy and Jamie took the tarp to a wooded location in Chelsea, Quebec, a day or so later, and burned it. On the way, they threw a set of car keys that had fallen out of the tarp into the Ottawa River.
[19] The appellant gave Darcy and Jamie various accounts of what had happened at Brydges Road, some of which conflicted. They understood that someone had been hurt out in the bush during an altercation that involved two or three other people. At one point, the appellant said that he and an army buddy from Petawawa had tried to rob someone and there had been a fight over a gun, during which it went off.
[20] The Crown took the position that the appellant moved Mr. Nayel’s body on June 27 after learning that the police could obtain cell phone records that would establish his whereabouts on June 17. On June 27, phone records showed that the appellant drove to the west end of Ottawa then went “off the grid” for about four hours. Darcy and Jamie each testified that, for various reasons, they thought that the appellant had returned to the scene of the shooting. He denied this.
[21] Bank records showed that the appellant received payments from his drug buyer in Thunder Bay in July 2012, after he sold marijuana that he acquired from Mr. Nayel on June 17. He bought a chip truck and new equipment for his asphalt driveway business.
[22] The appellant met with members of Mr. Nayel’s family, who were searching for him, during the weeks following his disappearance. According to these family members, he denied knowing anything about Mr. Nayel’s whereabouts during these encounters.
[23] On November 11, 2012, the owners of a property near Calabogie called the police to report that they had discovered human remains about 200 metres into the bush from Norton Road. There, police found a crude burial site containing bones, chunks of cement, and remnants of clothing and jewelry. A firepit near the gravesite contained melted plastic and grommets from a tarp. Police also found a plastic tub with remnants of cement in it, a shovel and a bent pickaxe in a nearby pond. A forensic odontologist identified the human remains as belonging to Mr. Nayel. Shotgun pellets were found imbedded in the bones of the left hand and the front and interior of the skull. The cause of death was identified as a shotgun wound to the head.
[24] Darcy and Jamie testified that they were arrested, along with the appellant, on December 12, 2012. The appellant was charged with Mr. Nayel’s murder. When police threatened to charge Darcy and Jamie as accessories after the fact, they agreed to provide information about the shooting in return for immunity. On December 17, 2012, they took police to the site where they had burned the tarp that the appellant left with them on June 17.
[25] As part of its case, the Crown tendered an anonymous letter sent to police in April 2013 (the “anonymous letter”). The ostensible author of this anonymous letter was the former girlfriend of one of the two men who, according to the appellant, had killed Mr. Nayel. The Crown’s theory was that the appellant had written the anonymous letter (or arranged for it to be written) to corroborate his account of Mr. Nayel’s death, and that he had fabricated details in the letter to reflect what he had learned about the Crown’s case through disclosure. The anonymous letter is central to the appellant’s first ground of appeal, and I will discuss it in more detail later in these reasons.
(2) The Appellant’s Testimony at Trial
[26] The appellant testified that, when he was discussing arrangements to buy marijuana from Mr. Nayel a few days before June 17, Mr. Nayel asked him to accompany him to a drug buy on June 17. The appellant agreed to this in return for Mr. Nayel’s agreement to front part of the cost of the marijuana that the appellant was buying.
[27] When they met on June 17, the appellant brought his four-wheeler in a trailer behind the Jeep. He also brought his Mossberg shotgun. According to the appellant, Mr. Nayel asked him to bring it so they could practice shooting.
[28] Once they were in the Jeep driving out of Ottawa, Mr. Nayel provided directions to the hunt camp on Brydges Road based on instructions he was getting on a burner phone. Close to their destination, Mr. Nayel told the appellant for the first time that he had arranged a meeting to buy a kilogram of cocaine.
[29] On their arrival at the hunt camp on Brydges Road, the appellant and Mr. Nayel smoked some marijuana and turned the Jeep around so it was on the driveway facing back out to the road. The appellant gave Mr. Nayel $7,000 in cash, half-payment for ten pounds of marijuana he was purchasing from Mr. Nayel. Mr. Nayel told the appellant that he had brought with him an additional $20,000 in cash and seven more pounds of marijuana.
[30] They then unloaded the four-wheeler and went quadding, leaving the Mossberg shotgun, the cash and marijuana, and Mr. Nayel’s phone unattended in the Jeep. When they returned to the Jeep, Mr. Nayel asked the appellant to load the Mossberg because he was anxious about the upcoming cocaine buy. The appellant testified that, after loading the gun, he placed it in the open trailer.
[31] About 15 minutes later, according to the appellant, two men pulled up in a grey Ford truck. They went up the driveway and back down, parking behind the Jeep. The appellant described the driver as 6’ 2” or 6’ 3” tall and around 250 pounds, with short black hair and “really tanned” or olive skin. The driver spoke with a thick accent that was not French. The passenger was slightly smaller: around 6’ tall and approximately 200 pounds. He had a short “buzz cut” hair style and a “scruffy face”, and a similar skin tone and accent to the driver. When the passenger got out of the truck the appellant saw that he had a pistol.
[32] The appellant testified that Mr. Nayel walked over to meet the driver, carrying the bag of money. The driver took the money, but he and Mr. Nayel then began to argue when Mr. Nayel revealed that he had not provided the full purchase price of the cocaine in cash but instead brought marijuana to serve as a partial payment. As the driver started to walk back towards the truck, he grabbed the appellant’s Mossberg shotgun out of the trailer. The driver and Mr. Nayel tussled over the shotgun. The driver overpowered Mr. Nayel and pushed him back, then shot Mr. Nayel twice and stomped on his neck. He then told the appellant to dig a hole to bury the body.
[33] According to the appellant, the driver then took a photo of the appellant’s driver’s license with his phone and told him he was responsible for Mr. Nayel’s $15,000 debt. He warned the appellant that if he told anyone what had happened, he and his family would be dead.
[34] As the appellant drove away, he heard a bang in the trailer. He testified that he later realized that the men had thrown his Mossberg shotgun back into the trailer. He also had both the marijuana that Mr. Nayel had sold to him and the marijuana that the two men had refused to accept – a total of 17 pounds – and some of Mr. Nayel’s personal belongings, including his phone, his cooler, his bag, and some of his clothing.
[35] The appellant drove back to Mr. Nayel’s parked car in Bells Corners, intending to unload Mr. Nayel’s personal belongings into it. He was unable to get the car key to work, so he drove on in his Jeep to his brother Darcy’s house. He denied that he had blood on his clothes or that he changed while at his brother’s house.
[36] The appellant also denied that he returned to Brydges Road on June 27, or that he had even heard of Norton Road, the location where Mr. Nayel’s remains were later found. He said that he drove into the backwoods on June 27, thinking about committing suicide, and did not notice that his phone’s battery had died.
[37] The appellant testified that, in the weeks after June 17, the men responsible for Mr. Nayel’s murder contacted him by mail and phone, threatening to harm him and his then-fiancé, Ms. Cameron. Later that summer, according to the appellant, the man who had been the passenger in the grey truck came to the appellant’s house in a dark car, which the appellant recalled at trial was an Audi. The appellant gave the man $15,000 to clear the debt he had inherited from Mr. Nayel. At trial, the appellant was unable to produce any evidence to corroborate either this payment or the letters and phone calls he claimed to have received.
[38] The jury found the appellant guilty of first-degree murder after deliberating for just over a day. He was sentenced to life in prison with no chance of parole for 25 years, as required under ss. 235(1) and 745(a) of the Criminal Code.
B. Issues on Appeal
[39] As mentioned earlier, the appellant advances three grounds for his appeal:
(i) The trial judge erred in excluding the appellant’s prior consistent statements to his first lawyer about the two men he maintains killed Mr. Nayel;
(ii) The trial judge erred in instructing the jury that the appellant could be convicted of constructive first degree murder under s. 231(5) of the Criminal Code; and
(iii) Alternatively, the trial judge erred by failing to explain to the jury what it would have to find to convict the appellant of constructive first degree murder pursuant to s. 231(5).
The remainder of the judgment, including detailed legal analysis, application of the law to the facts, and the court’s disposition, follows as in the original text, with all formatting, links, and structure preserved as per the instructions above.
Disposition
[145] Having found no error by the trial judge, I would dismiss the appeal.
Released: June 6, 2025
“S.G.”
“S. Gomery J.A.”
“I agree. J. Dawe J.A.”
“I agree. D.A. Wilson J.A.”
[1] See R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135.
[2] For simplicity’s sake, I will refer to them simply as Darcy and Jamie in these reasons.
[3] This date was later established through phone records, as conceded by the defence at trial.
[4] The anonymous letter was produced on a computer. The appellant was in custody when the letter was received by the police, and would not have had access to a computer with a printer or the means of mailing the letter himself.
[5] It was not disputed that the appellant only had access to the disclosure in his counsel’s presence throughout the relevant timeframe.