# ONTARIO
## SUPERIOR COURT OF JUSTICE
**COURT FILE NO.:** CRIM(J) 963/11
(Brampton)
**DATE:** 20130830
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## B E T W E E N:
**HER MAJESTY THE QUEEN**
Crown
Brian McGuire and Jennifer Goulin for the Crown; Kim Twohig for the Ontario Attorney General on the Application for reserved Parking for Defence Counsel
— and —
**MICHELLE LIARD and RAFAL LASOTA**
Accused
Daniel Brodsky for Ms Liard
Gary J. Grill and David A. Smith for Mr Lasota; Peter Copeland for Mr Lasota on the Application to Remove Crown counsel and the Officer-in-Charge
David Butt for Ron and Kathy Hewie on the Application to Redact the Diary of Alexandra Firgan-Hewie
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# TRIAL RULINGS
**D.L. CORBETT J.**
[1] There was no mystery who had killed young Aleksandra Firgan-Hewie. Rafal Lasota did it. There was no mystery how, where or when he killed her: with a knife, in his bedroom, around 5:30 to 6:00 p.m. on December 10, 2008. The issues for trial were (a) whether this was manslaughter, second degree murder, or first degree murder; and (b) whether Mr Lasota’s girlfriend, Michelle Liard, was also guilty of homicide.
[2] Pre-trial applications began on January 30, 2012. Jury selection started on February 15th. The Crown opened to the jury on February 22nd, and began to call its case. Ms Liard called a defence and testified; Mr Lasota did neither. The evidence was concluded by March 27th, with closing addresses on March 29th. I provided my final instructions to the jury on March 29th and Friday March 30th. The jury deliberated throughout the weekend and returned with its verdict just before lunch on Monday April 2nd.
[3] They found Mr Lasota guilty of first degree murder. As prescribed by the Criminal Code, I sentenced Mr Lasota to imprisonment for life without parole eligibility for twenty-five years from the date of his arrest.[1] The jury found Ms Liard not guilty and she was released from custody, having spent nearly three years and four months in jail awaiting trial.
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# Structure of These Reasons
[4] These reasons are organized as follows. First, I summarize the facts.[2] Then I address the following 19 areas:
Pretrial Rulings
(1) Crown’s voluntariness application respecting Mr Lasota’s police statement [paras. 36-39]
(2) Mr Lasota’s application to exclude his police statement because it was obtained in violation of his rights to counsel and to be advised of the offences alleged against him {Charter, ss. 7, 10(a) and 10(b)} [paras. 40-69]
(i) preliminary concerns: (a) Mr Lasota was not re-cautioned at the start of the interview and (b) overly emphatic language used by the interviewing officer;
(ii) failure to allege first degree murder at the outset, and failure to provide a further consultation with counsel after Mr Lasota’s charges were “upgraded” from “murder” to first degree murder.
(3) Crown voluntariness application respecting Ms Liard’s police statement [paras. 70-78]
(4) Crown application to admit into evidence against Ms Liard documents written by or in her possession [paras. 79-108]:
(i) short story written by Ms Liard [paras. 80-95]
(ii) poster on the wall of Ms Liard’s bedroom [paras. 96-102]
(ii) binder of writings found in Ms Liard’s bedroom [paras. 103-108]
(5) Defence application for disclosure of Ms Firgan-Hewie’s diary [paras. 109-120]
(6) Defence application to put Ms Firgan-Hewie’s diary into evidence to show that: [paras. 121-154]
(a) Ms Firgan-Hewie was “capable of” being the aggressor;
(b) Ms Firgan-Hewie was mature beyond her years, as reflected in her sexual activity;
(c) Ms Firgan-Hewie was “stoned” at the time of the altercation;
(d) absence of references to threats allegedly made against Ms Firgan-Hewie;
(e) narrative and Ms Firgan-Hewie’s state of mind.
(7) Defence application to exclude or redact autopsy and crime scene photographs [paras. 155-177]
(8) Defence application to permit the accused to sit at counsel table [paras. 178-189]
(9) Mr Lasota’s severance application [paras. 190-207]
(10) Defence application for reserved parking [paras. 208-264]
Trial Rulings
(11) Ms Liard’s mistrial application because of prejudicial statements made by Ms Dixon [paras. 265-271]
(12) Defence applications to adduce prior consistent statements of Mr Lasota and Ms Liard (Edgar Applications) [paras. 272-344]
(13) Mr Lasota’s application to call Dr Julian Gojer as an expert forensic psychiatrist [paras. 345-377]
(14) Ms Liard’s request to call Mr Lasota as a witness [paras. 378-380]
(15) Defence application to remove senior Crown counsel and the officer-in-charge from this case [paras. 381-428]
(16) Defence application to adduce a police statement given by Ms Firgan-Hewie (in another case) [para. 429]
(17) Ms Liard’s application to put into evidence a note she left for her grandmother [paras. 430-433]
(18) Media issues [paras. 434-453]:
(i) Access to electronic exhibits during the trial
(ii) inaccurate media coverage pre-verdict and post-sequestration of the jury
(iii) application for a limited publication ban on portions of Ms Firgan-Hewie’s diary
(19) Trial rulings for which no further reasons are provided [para. 454]:
(i) Crown application to cross-examine A.J. Dziura and to adduce his police statement for the truth of its contents (Canada Evidence Act, s.9 and K.G.B. application);
(ii) Crown application to cross-examine Monika Lasota (Canada Evidence Act, s.9);
(iii) Admissibility of statements of Aleksandra Firgan-Hewie to her friends Racheal Miller and Kevin Martins;
(iv) Directions to the Crown’s blood spatter expert evidence;
(v) The effect of Mr Lasota’s unaccepted plea of guilty to manslaughter;
(vi) Possible verdicts as against Mr Lasota;
(vii) The basis for specific redactions to prior statements;
(viii) Response to infelicitous comments made during Mr Brodsky’s jury statements.
[5] Counsel did an exceptional job on this trial. Difficult legal points were argued with ingenuity and erudition. Reasonable concessions were made, and legitimate issues pursued with vigour. This was an emotional case and counsel placed it before the jury on the basis of evidence, reason and the law, and not by overplaying the strong visceral impact of some of the evidence. For all of this I am grateful.
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# Synopsis of the Case
[6] On December 10, 2008, about one month before her fourteenth birthday, Aleksander Firgan-Hewie was killed by Rafal Lasota in the bedroom of the home he shared with his mother. Aleks was stabbed and slashed 37 times with a knife. Three of the wounds were to her throat, including one to the jugular vein and one to the carotid artery. Others wounds were to her chest. It was a savage, savage crime.
[7] Rafal Lasota was not alone at the house when he killed young Aleks. His girlfriend, Michelle Liard, was there too. So was his sister, Monika Lasota, and Monika’s common law husband, A.J. Dziura.
[8] Rafal’s mother, Teresa, was at work, and not at home, when Aleks was killed.
[9] Rafal Lasota was tried for first degree murder. He acknowledged from the outset that he caused Aleks’ death. The issues for trial against him were:
(a) his intent, and
(b) whether either
(i) the killing was planned and deliberate,[3] or
(ii) whether the killing took place in the course of an unlawful confinement of Ms Firgan-Hewie.[4]
[10] Michelle Liard was also tried for first degree murder. The Crown’s theory was that Ms Liard and Mr Lasota planned to kill Ms Firgan-Hewie and lured her to the Lasota home to do so.
[11] Why would Mr Lasota and Ms Liard do such a thing? It is not necessary, of course, for the Crown to prove motive. However, it is open to the Crown to lead evidence of motive.[5] Evidence of motive could help the jury understand what happened in Mr Lasota’s bedroom.
[12] A number of residential break-ins occurred in the Clarkson area of Mississauga during the summer and fall of 2008. On November 5, 2008, Gary Macdonald and Donovin Rodriguez burglarized Mr Lasota’s residence on Bonnymede Drive. A digital camera and $90 were stolen.
[13] Ms Firgan-Hewie’s home had also been burglarized by Mr Macdonald. A television set had been taken that belonged to Ms Firgan-Hewie’s father, Ron Hewie.
[14] Mr Lasota reported the break-in at his home to police. Ms Firgan-Hewie had information relevant to this burglary and provided a statement to the police. Mr Macdonald was arrested in early November 2008. Apparently he had a history with police; he was not granted interim release.
[15] Mr Lasota and Ms Firgan-Hewie were subsequently threatened by friends or associates of Mr Macdonald for “ratting him out”. Mr Macdonald was reported to have said that he would “windmill them all”, a euphemism for killing them.
[16] In early December, Mr Macdonald was released from jail. Apparently Mr Lasota, Ms Liard and Ms Firgan-Hewie believed he had been released on bail.
[17] Mr Lasota and Ms Liard were afraid of Mr Macdonald, apparently for good reason. On December 7, 2008, while he was standing in front of his home having a cigarette, Mr Lasota was attacked by a balaclava-clad man who punched him in the face and slashed his arm with a knife, causing a deep gash. This frightened Mr Lasota so much that he went to a flea market and bought a knife to defend himself.
[18] Mr Lasota wanted to see the case against Mr Macdonald through trial. And he wanted to speak with Ms Firgan-Hewie about this, perhaps concerned that she would not follow through and testify against Mr Macdonald. And on December 10, 2008, at about 5 pm, he had Ms Liard call Ms Firgan-Hewie, asking to meet to talk about the Gary Macdonald situation. Ms Firgan-Hewie agreed, and soon afterwards they met at the “tunnel”, a place where some young people in that part of Clarkson would often congregate. They then made their way to the Lasota house.
[19] Ms Firgan-Hewie, Ms Liard and Mr Lasota went to Mr Lasota’s bedroom, in the upper part of the house. Soon after, Ms Liard left and went outside, where she invited Monika Lasota to join her for a cigarette. Mr Dziura remained inside in the basement, apparently sleeping.
[20] Mr Dziura was soon awakened by noises coming from Mr Lasota’s bedroom, which was directly above where he was sleeping. Mr Dziura feared that this was another break-in or an attack on Mr Lasota, and he ran outside to the garage and armed himself with a sword.
[21] Once outside, Mr Dziura met Ms Liard and Monika Lasota. Mr Dziura testified at the preliminary inquiry that Ms Liard told him that Mr Lasota was upstairs “putting a desk together or something”, to explain the noise. Mr Dziura told Ms Liard to go check on Mr Lasota. Ms Liard went to do this and Mr Dziura made to follow. Mr Dziura testified at the preliminary inquiry that Ms Liard blocked the entry, to prevent him from entering. Then Ms Liard said that Mr Lasota was upstairs in his room “with the girl who set him up”.
[22] It is at this time that Mr Lasota was killing Ms Firgan-Hewie.
[23] Monika Lasota was undeterred by Ms Liard and, concerned for her brother’s safety, went inside and upstairs. She spoke to Mr Lasota. He said something to the effect that he was alright and would be down shortly.
[24] Mr Lasota came outside about five minutes later. He spoke calmly. He indicated that “the girl” had gone home and that he was alright. He did not say what had happened.
[25] Monika Lasota and Mr Dziura were very concerned. They left the house and drove away. The drove to a mall where there was a community police station. They discussed going in. But in the end they did not. They did not know what to do.
[26] Mr Lasota and Ms Liard went back into the house. At some point Mr Lasota told Ms Liard that he had killed Ms Firgan-Hewie.
[27] Ms Liard helped Mr Lasota to clean up. She denies going into Mr Lasota’s bedroom. She does admit that she washed bloody clothing in a bathtub at Mr Lasota’s request. Both Mr Lasota and Ms Liard say that they were frightened and distraught.
[28] Mr Lasota and Ms Liard stayed at the house for hours afterwards. At some point, in some fashion, the room was cleaned up. Bloodied clothing was disposed of in a garbage bag. Ms Firgan-Hewie’s body was placed in other garbage bags. All the bags were placed behind a shed at the back of the Lasota property. Ms Liard and Mr Lasota both say that all of this was done by Mr Lasota. It was done so thoroughly that neither Teresa Lasota nor first-responding police saw evidence of the bloody crime that had happened when they looked at the bedroom.
[29] At some point, Monika Lasota and Mr Dziura returned to the house. They may have been concerned that someone had been trying to harm Mr Lasota. They spoke briefly with Mr Lasota and Ms Liard, who were outside on the front steps at that point. Then Monika Lasota and Mr Dziura drove away again and waited at a coffee shop for Teresa Lasota to come home.
[30] When Teresa Lasota came home later that evening, perhaps shortly after 11 pm, Monika Lasota reported her concerns to her. Teresa asked her son where “the girl” was, and he said she had gone home. She investigated and found the garbage bags outside. She did not open them. She went back inside and confronted Mr Lasota about the bags. He said that they were full of clothing. She pressed him and said that she was going to open the bags. At this point Mr Lasota broke down and told his mother that one of the bags contained Ms Firgan-Hewie’s body.
[31] Horrified, Teresa Lasota called the police.
[32] When police were called, Mr Lasota and Ms Liard ran away together. They ran and ran. At some point they saw a police car and Mr Lasota panicked, jumped a fence and ran away fast, leaving Ms Liard behind. So she went to her apartment alone. When she got there, police vehicles were outside. She did not go in until they left. Her apartment was empty. Her grandmother, with whom she lived, had gone with the police. Ms Liard was alone. She wrote a note to her grandmother, and stayed at the apartment until she was picked up there around 5:30 a.m. by police. She was taken to the police station to be interviewed as a witness to a homicide.
[33] Mr Lasota remained out all night. He had no money. He did not have access to a car. He was found the next day, “passed out” in the backyard area of a women’s shelter. 9-1-1 was called. By the time police arrived (not knowing the call was for Mr Lasota), Mr Lasota was awake and speaking with ambulance attendants. He was cold, but otherwise unhurt. Police recognized him from their morning briefing. They asked him if he was Rafal Lasota and he responded, “I’m the guy”. He was arrested, cautioned for “murder”, and taken to a police station for questioning.
[34] In the aftermath of the killing, police gathered the following evidence:
(1) the note Ms Liard wrote to her grandmother immediately after the killing. In the note, Ms Liard wrote that “Rafal has murdered one of my friends” and that she, Liard, “had nothing to do with this”. The note is patently self-serving.
(2) a handwritten story written by Liard which depicts, graphically, the kidnapping and torture of a young blonde woman. The protagonists in the story are named Meesha (the nickname preferred by Liard for “Michelle”), Rafal, and Matte (the name of one of Ms Liard’s ex-boyfriends). Ms Firgan-Hewie had blonde hair.
(3) hundreds of other pages of writings by or in the possession of Ms Liard, including journal entries, lyrics, poems, drawings, some of which mention death, murder, vampirism and blood (but most of which do not).
(4) posters and pictures on Ms Liard’s bedroom walls which reference “death metal” music, including a cardboard “tombstone” that reads “I’ll stop stabbing… When you stop screaming”.
(5) statements from other young people that Ms Liard and Ms Firgan-Hewie were part of a group that hung around at the “tunnel”. Ms Liard was reported to have said to people at the tunnel, and to Ms Firgan-Hewie directly, that she wanted to “experiment’ with Ms Firgan-Hewie and “cut her up” and “cut her into pieces”.
(6) police statements from Monika and Teresa Lasota and A.J. Dziura.
(7) police statement from Ms Liard in which she admitted cleaning Mr Lasota’s bloody clothes, staying with him after the killing, not reporting the killing to authorities, and running away with Mr Lasota when Teresa Lasota called police. She denied having foreknowledge of the killing or any involvement in it. She gave a detailed explanation of the reasons she invited Ms Firgan-Hewie to meet, and the prior history with Gary Macdonald.
(8) police statement from Mr Lasota in which he admitted killing Ms Firgan-Hewie. He claimed that she came at him with a pair a scissors and that he just reacted. It all happened very quickly and he never meant to kill her. But then he realized things had gone too far and he could not let her leave. And then he cut her throat. Mr Lasota denied that there was any plan to do this, and claimed that Ms Liard was not involved other than helping him clean up clothes afterwards.
[35] The Crown argued at the preliminary hearing that this evidence collectively established a planned and deliberate murder. The odd comments and threats demonstrate an animus towards Ms Firgan-Hewie, and the writings, especially the short story, are evidence of Ms Liard’s interest in committing murder in the manner in which Ms Firgan-Hewie was killed. The Crown also argued at the preliminary hearing that Ms Liard’s actions on December 10, 2008 were done to carry out the plan. She had “lured” Ms Firgan-Hewie to the Lasota house and emptied the house of everyone awake, thus enabling Mr Lasota to commit the murder. She then helped him clean up and then fled the scene with him.
(Full decision continues exactly as in the source through paragraph [455] and all footnotes.)
minicounsel