Court File and Parties

COURT FILE NO.: CR-18-1164 DATE: 2020 06 11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

TRAYON JOHNSON and RICHARD IRELAND Applicant M. Addie and J. Kopman, for the Applicant Trayon Johnson A. Perrin, for the Applicant Richard Ireland

- and -

HER MAJESTY THE QUEEN Respondent E. Taylor and C. Presswood, for the Respondent Crown

HEARD: June 5, 2019

REASONS FOR DECISION (ADMISSIBILITY OF PRIOR CONSISTENT STATEMENT OF TRAYON JOHNSON)

BARNES J.

Introduction

[1] Trayon Johnson and Richard Ireland were charged with second-degree murder for the killing of Mark Chavez, and with the attempted murder of Jackson Merizzi. The offence date is October 14, 2017. At the end of the Crown’s case, Trayon Johnson applied to introduce his exculpatory statement made to the police on October 20, 2017. Mr. Ireland did not participate in Mr. Johnson’s motion.

[2] For the following reasons, I granted Mr. Johnson’s motion, leaving it to the jury to determine what weight to give to the exculpatory statement.

Factual Background

a) Details of the Alleged Offences

[3] Mr. Johnson and Mr. Ireland are cousins. On the date in question, Mr. Ireland arranged to purchase marijuana from Mr. Merizzi. They agreed to meet in the parking lot of a McDonald’s restaurant that was close to where Mr. Ireland and Mr. Johnson were staying at the time. Mr. Ireland and Mr. Johnson rode bicycles to the meeting place. Mr. Merizzi drove to the McDonald's with his friend, Mr. Chavez, who sat in the passenger’s seat of his mother’s blue Ford Escape.

[4] Terrell Thompson and Trevan Langaigne, who are friends of the accused, confirm that on the date of the incident, they went to the McDonald’s with Mr. Ireland and Mr. Johnson.

[5] Mercedes Doyle, Mr. Johnson’s former girlfriend, testified that Mr. Johnson told her that he and Mr. Ireland went to meet Mr. Merizzi to rob him.

[6] At some point, Mr. Ireland and Mr. Johnson entered Mr. Merizzi’s vehicle. Mr. Merizzi testified that the marijuana transaction went awry. Mr. Ireland then stabbed him and Mr. Chavez multiple times. Mr. Merizzi also testified that he was tasered during the altercation.

[7] The jury heard medical evidence that Mr. Chavez died from injuries sustained from the forceful application of a sharp object, such as a knife. The jury also heard evidence that Mr. Merizzi’s injuries were caused in a similar manner by a similar object. Mr. Ireland has conceded that he stabbed Mr. Chavez and Mr. Merizzi. He concedes that he is guilty of manslaughter, not second-degree murder or attempted murder.

[8] On October 20, 2017, Mr. Johnson was arrested and charged with first-degree murder.

b) Mr. Johnson’s Interview with Constable Colthurst

[9] On October 20, 2017, the date of his arrest, Mr. Johnson was interviewed by Constable Colthurst. The interview began at 11:55 a.m. and lasted until 11:06 p.m., almost 12 hours.

[10] The interview began with general conversation on topics such as running shoes, efforts to contact Mr. Johnson’s mother so she could contact a lawyer on his behalf, his girlfriend Mercedes, mutual familiarities with Port Credit High School, West Indian food, discussions about members of Mr. Johnson’s immediate family, the types of sports Mr. Johnson loved and played, the use of duty counsel, his age (22 years old), the fact that Mr. Johnson had never been involved with the police before, Mr. Johnson’s job as a roofer, his place of residence, and who he lived with.

[11] At some point, Mr. Johnson got tired of waiting for his mother to contact counsel on his behalf. He spoke to duty counsel from 12:38 p.m. to 12:39 p.m. Just after 1:42 p.m., Constable Colthurst began to venture into the outskirts of the matter at hand and asked Mr. Johnson if he had heard of the death of a young man, who he later identified as Kevin Pham.

[12] On two occasions during this period, Mr. Johnson asserted his right to silence. Almost immediately thereafter, Constable Colthurst pivoted to a discussion about videogames, Netflix, and how much time Mr. Johnson spent with his girlfriend Mercedes. Just before 1:46 p.m., Constable Colthurst inched his way towards the murder investigation. He asked Mr. Johnson where he had been since the previous Wednesday. Mr. Johnson replied that he was with Mercedes. The interview then pivoted to the fact that Mercedes had a child and her visitation times with her child. They discussed Mr. Johnson’s use of cellphones, his mother’s ongoing efforts to get him a lawyer, videogames, his friendship and living arrangements with Mr. Langaigne, Mr. Johnson’s fear of driving, visits with his father and siblings at his father’s house, how Mr. Johnson earned income, and what he did when he was not earning income.

[13] Just after 2:04 p.m., Constable Colthurst asked Mr. Johnson how he spent the previous weekend. (Note that Mr. Chavez had been killed and Mr. Merizzi almost killed the past weekend.) Mr. Johnson said he spent the weekend alone. He explained that Mercedes was in Chicago that weekend and that she had returned that Sunday morning. He explained that he spent the previous Friday night drinking with his brother and then he went home. On Saturday, he stayed home all day and night and spent the evening talking to Mercedes. Mr. Johnson later conceded that this was a lie.

[14] Just before 2:15 p.m., Constable Colthurst urged Mr. Johnson to tell him the truth about what he was doing on Saturday night. He asked him if he knew anything about what happened to “the kid” (Mr. Chavez) on the past Friday or Saturday night. Mr. Johnson said he knew nothing. Once again, he told Constable Colthurst that his lawyer told him not to say anything. Constable Colthurst persisted, asking further questions about Mr. Johnson’s conversation with Mercedes over the past weekend. Mr. Johnson held his ground. Constable Colthurst then pivoted and the conversation shifted to Mr. Johnson’s hours of work, the impacts of heavy labour on his body, drinking alcohol, smoking marijuana, and spending time with his friends.

[15] Just before 2:20 p.m., Constable Colthurst returned to the matter under investigation. He asked where Mr. Johnson was the previous Saturday morning. Mr. Johnson reminded Constable Colthurst that his lawyer had told him not to say anything. Constable Colthurst changed the topic slightly. This time, he asked Mr. Johnson what he would typically do on a Saturday. Mr. Johnson said he would typically relax, garden, cook, and spend time with his girlfriend if she was around. Constable Colthurst then returned to the investigation and asked if Mercedes was with him the past Saturday. Mr. Johnson responded in the negative and reminded him that his lawyer had advised him not to say anything. Constable Colthurst persisted. Mr. Johnson repeated his lawyer’s advice. Constable Colthurst then pivoted again and began asking general questions about what Mr. Langaigne would do on a Saturday. He then specifically asked whether Mr. Langaigne was with Mr. Johnson at his home on the past Saturday. Mr. Johnson repeated his lawyer’s advice not to say anything.

[16] Constable Colthurst persisted. He asked Mr. Johnson questions about what he was doing on Saturday night and when Mr. Johnson spoke to Mercedes that past weekend. Mr. Johnson insisted that he did and said Mercedes returned from Chicago on Sunday morning. Constable Colthurst then questioned Mr. Johnson on details about how Mercedes travelled from the airport to his home that Sunday morning. Mr. Johnson said he was not sure but surmised that she must have taken a cab to his residence.

[17] I do not disagree with the Crown’s submission that at this point, it is apparent that Mr. Johnson had began to give some thought to his situation. However, I note that up to this point, Mr. Johnson has been quizzed about his whereabouts on the night of the murder and attempted murder but had not been confronted with his involvement in the crime.

[18] Just before 2:25 p.m., Constable Colthurst told Mr. Johnson that they had had a good conversation thus far and that it was now time to answer questions about what happened to “the kid” (Mr. Chavez). Constable Colthurst asked Mr. Johnson if he told Mercedes anything about what happened to “the kid”. Mr. Johnson said he did not. Constable Colthurst asked Mr. Johnson what he would say if he was told that Mercedes said she knew about “the kid” getting killed. At this time, Mr. Johnson repeated his lawyer’s advice not to say anything. Constable Colthurst persisted. Mr. Johnson repeated his lawyer’s advice and asked if he could speak to his lawyer again. Constable Colthurst denied the request. He reminded Mr. Johnson that he had already spoken to a lawyer.

[19] Constable Colthurst continued with the questioning. At 2:29 p.m., he asked Mr. Johnson to tell him everything that happened that night. He told him that while he may not be talking, other people were talking. Mr. Johnson said he did not know anything. He repeated his lawyer’s advice not to say anything. Once again, Constable Colthurst told Mr. Johnson that while he may not be talking about what happened, other people were talking. Mr. Johnson repeated his lawyer’s advice not to say anything. This is the closet Constable Colthurst had come, thus far, to confronting Mr. Johnson with his direct involvement in the crime.

[20] Constable Colthurst continued. However, he pivoted to conversations about Mr. Johnson’s relationship with his parents, inquiring about which parent he was closest to, his parents’ heritage, and his relationship with his siblings. Just before 2:24 p.m., Constable Colthurst announced that they should break for food. Mr. Johnson asked if he could speak to his lawyer. Constable Colthurst said that he did not have to give him access to a lawyer because Mr. Johnson had already spoken to a lawyer, however, he would see what he could do. At 2:34 p.m., Constable Colthurst took a break and left the interview room.

[21] At 2:49 p.m., Constable Colthurst returned with food. Mr. Johnson then had his meal. During the meal they talked about food, marijuana, roofing, Constable Colthurst’s friend Sam, Mr. Johnson’s mother’s desire for a grandchild and her battle with breast cancer, relationships, marriage, whether Mr. Johnson’s parents had re-married, cooking and food, eating healthy and staying in shape, Mr. Johnson’s grandfather, Mr. Johnson’s shrinking appetite, the fact that they both grew up in Mississauga, and schools, places and neighbourhoods they were both familiar with. The meal and this phase of the conversation ended at 3:35 p.m. with Constable Colthurst leaving the interview room.

[22] Constable Colthurst returned to the interview room at 3:36 p.m. At that time, Mr. Johnson said he was feeling chilly and requested something to keep him warm. Constable Colthurst left at 3:36 p.m. to address the request. He returned at 3:38 p.m. and reported that he could not find anything to keep Mr. Johnson warm.

[23] Constable Colthurst told Mr. Johnson that he had been in touch with his mother and had given her an update. Constable Colthurst confirmed that Mr. Johnson’s mother was very upset, and they surmised that Mr. Johnson’s grandmother would be very upset too. Mr. Johnson complained that his siblings did not treat his mother well. Just after 3:40 p.m., Constable Colthurst returned to questioning Mr. Johnson about the crime. Constable Colthurst observed that despite the good conversations they had been having, Mr. Johnson shut down anytime he asked questions about the crime. Mr. Johnson said he did not know anything about the crime and repeated his lawyer’s advice not to say anything.

[24] Constable Colthurst told Mr. Johnson that he seemed like a good person. Mr. Johnson talked about his loss of two cousins to violence and the violent deaths of his friends KP and Pablo. He talked about his mother and grandmother’s battle with breast cancer and how all of this made him numb. He said he did not know what was going on. When Constable Colthurst asked him if he was not the least bit curious, Mr. Johnson said he was not curious. He repeated his lawyer’s advice not to say anything.

[25] Just before 3:44 p.m., Constable Colthurst remarked that it was odd that despite the fact that he was facing a murder charge, Mr. Johnson was not curious about what had happened. Mr. Johnson said he was not familiar with the process and did not want to say the wrong thing. He repeated his lawyer’s advice not to say anything. He said he had never been involved with the police and that he was very scared for his life. He was also scared about what would happen to him if he went to jail. He wanted his lawyer to keep him safe. He said he did not do anything.

[26] In response, Constable Colthurst was even more direct and asked, “what do you mean by you didn’t do anything?” Mr. Johnson said he had just been at home and did not know anything about any murder. Constable Colthurst assured him that he had nothing to be scared of. Mr. Johnson said he was not scared of the police, he was scared for his life. He feared that he was going to get killed or raped in jail. He also talked about being scared during his arrest at gun-point.

[27] Constable Colthurst continued to ask questions about the murder. Constable Colthurst told Mr. Johnson that “the kid” was stabbed. Mr. Johnson feigned surprise and said that is how his friend Kevin Pham died. He said it was devastating. Constable Colthurst asked Mr. Johnson if he was curious about what happened in the area. Mr. Johnson explained that he did not know details about the murder. He expressed his disgust with the murder and explained that he could not stand the sight of blood.

[28] Constable Colthurst then asked Mr. Johnson if he was curious about the details of the murder. Mr. Johnson said the officer had provided him with details already. After discussing the impacts of such a loss of life on the victims’ families, Constable Colthurst told Mr. Johnson that the murder had occurred the past Friday night or early Saturday morning. Mr. Johnson stated that it now made sense why the officer was asking him questions about the past Friday and Saturday. I question the sincerity of this statement.

[29] Constable Colthurst then reiterated Mr. Johnson’s earlier statement that he was sleeping on Saturday night, and Mr. Johnson confirmed that he was.

[30] Constable Colthurst then told Mr. Johnson that there were cameras at the crime scene. He asked Mr. Johnson if there was any reason why he would be depicted in the cameras. Mr. Johnson said no. Constable Colthurst asked Mr. Johnson if there was any reason why anyone would say he was there. He said there was not. Constable Colthurst asked Mr. Johnson if he wanted any more details. Mr. Johnson responded that he wanted as much detail as the officer could share. He said he was scared and that his lawyer had advised him not to say anything.

[31] Constable Colthurst persisted, offering to provide further details. He told Mr. Johnson that there were cameras on-scene showing some footage of what happened. He also said that there was an eye-witness to the stabbing. Mr. Johnson said he did not know anything. He repeated that his lawyer had told him not to say anything. Constable Colthurst invited Mr. Johnson to guess what happened. Mr. Johnson said he could not and did not want to guess. He insisted that he did not do anything and did not know anything. At this point, Constable Colthurst was clearly hinting that there may be incriminating evidence against Mr. Johnson.

[32] Constable Colthurst then asked Mr. Johnson if he told Mercedes anything. Mr. Johnson said no. Constable Colthurst pivoted and asked questions about Mercedes’ background. This phase of the conversation concluded with Constable Colthurst’s comment that a good person from a good family would be honest in reporting details to the police of what they had seen at a murder scene. Mr. Johnson said he did not tell Mercedes anything. Constable Colthurst told Mr. Johnson that Mr. Johnson had given Mercedes information about the murder. Mr. Johnson insisted that he did not and repeated that his lawyer told him not to say anything. Constable Colthurst asked Mr. Johnson how Mercedes knew details about the murder. Mr. Johnson said he did not know. He did not tell her anything. He then repeated that his lawyer had told him not to say anything.

[33] Constable Colthurst told Mr. Johnson that Mercedes had been very cooperative with police and had provided details about the incident that the public did not know. Mr. Johnson told Constable Colthurst that he did not tell Mercedes anything about the incident. Mr. Johnson then requested to speak with a lawyer. Constable Colthurst denied the request and continued asking questions. At approximately 4:04 p.m., he again asked Mr. Johnson why Mercedes would know details about the murder that the public did not know. Mr. Johnson repeated his lawyer’s advice that he not say anything.

[34] At 4:05 p.m., Constable Colthurst was direct. He told Mr. Johnson that there is no way Mercedes would have the information she had unless someone who was there told her. Mr. Johnson again said that he did not tell Mercedes anything. Constable Colthurst suggested that he must have told her something. He also suggested that Mercedes would not lie to the police. Twice, Mr. Johnson repeated the advice of his lawyer not to say anything.

[35] Between 4:07 p.m. and 4:13 p.m., Constable Colthurst suggested to Mr. Johnson that the police may have incriminating evidence against him. Constable Colthurst told him that there were cameras at the scene of the crime, asked him whether he had access to bikes, asked him if he could hazard a guess as to why he was asked about bikes, told Mr. Johnson that Mr. Johnson rode a bike to the scene of the murder, and asked him if there were bikes at his residence on Jumna Road. Mr. Johnson denied any knowledge. During this sequence, he conveyed his lawyer’s advice to remain silent at least thrice.

[36] Constable Colthurst again asked where Mr. Langaigne was on the Saturday night. Mr. Johnson said he was not at home. Constable Colthurst told him that the murder took place in a vehicle at a nearby McDonald’s parking lot. He talked to Mr. Johnson about possible forensic testing of the vehicle. Mr. Johnson stood his ground and repeated his lawyer’s advice not to say anything.

[37] At 4:18 p.m., Constable Colthurst left the interview room. He returned at 4:21 p.m. On his return, Constable Colthurst mentioned the name of the victim, Mr. Chavez, for the first time. He showed Mr. Johnson pictures of two males riding bicycles at the scene. He told Mr. Johnson that the police had a search warrant to search Mr. Johnson’s residence at 380 Jumna Road and would be looking for the clothing and bicycles seen in the images. He told Mr. Johnson that witnesses saw two males get into the blue vehicle depicted in the images and two other males get on the bicycles and ride away. He asked Mr. Johnson if he was present during the incident. He asked Mr. Johnson if he would lie to him. Mr. Johnson said no. Just after 4:48 p.m., he told Mr. Johnson that Mercedes and Mr. Chavez’s friend had placed Mr. Johnson in the blue vehicle.

[38] Throughout this sequence, Mr. Johnson said he did not know what the officer was talking about as he was at home at the time. On four occasions, Mr. Johnson repeated his lawyer’s advice not to say anything, as he had done several times before. Constable Colthurst told Mr. Johnson to take a deep breath. After watching the videotaped interview, I conclude that this was to calm Mr. Johnson down.

[39] Just after 4:30 p.m., Constable Colthurst urged Mr. Johnson to tell his side of the story. He suggested that Mr. Johnson was part of a plan that had gone terribly wrong. On eight occasions, Mr. Johnson repeated his lawyer’s advice not to say anything.

[40] In response to questions from Mr. Johnson, Constable Colthurst confirmed that Mr. Johnson had been under police surveillance for a few days after the incident. Constable Colthurst suggested that Mr. Johnson had told Mercedes everything. Mr. Johnson denied this. He said he was scared several times. He inquired whether Mercedes had in fact placed him in the vehicle. He denied any knowledge of the incident and said he was not a killer. Mr. Johnson asked Constable Colthurst whether the police had the name of the killer. Constable Colthurst responded that they had Mr. Johnson’s name. At least eight times, he repeated his lawyer’s advice not to say anything.

[41] At 5:00 p.m., Mr. Johnson told Constable Colthurst that he wanted to provide information, but he was scared. He inquired whether the police could keep him safe. Constable Colthurst said that the police would keep him safe. Mr. Johnson said he did not kill anyone. He said he was scared. Constable Colthurst encouraged him to provide information.

[42] Just after 5:05 p.m., Constable Colthurst encouraged Mr. Johnson to provide information by analogizing to a countdown just prior to plugging into cold water. Just before 5:10 p.m., he initiated a countdown by counting backwards from three. Mr. Johnson began to provide the portion of the statement where he detailed his involvement.

[43] Mr. Johnson told Constable Colthurst that his cousin, Mr. Ireland, arranged to buy an ounce of marijuana from the driver of the vehicle. In the vehicle, Mr. Ireland grabbed the drugs from the driver’s hand. The driver asked for payment a few times, and Mr. Ireland slowly counted the money. Mr. Ireland was slow to give the money, so the driver began driving fast around the parking lot. Mr. Johnson said that Mr. Ireland said, “run your shit”, which means you are getting robbed. Mr. Johnson said he was scared, and that Mr. Ireland was freaking out and screaming “stop the car”. He said Mr. Ireland was scared and angry at the same time. Mr. Johnson told the police that neither he nor Mr. Ireland had any intention of going to rob and kill the victims.

[44] Mr. Johnson told Constable Colthurst that Mr. Ireland stabbed the passenger and the driver. Somehow, Mr. Ireland reached out and removed the car key, causing the vehicle to stop. The two other males on the bicycles then tried to open the door for them. He and Mr. Ireland got out of the vehicle and ran away from the scene together with the other two males.

[45] Mr. Ireland told them that if anyone disclosed what happened, he would kill them. Mr. Johnson said he was scared of Mr. Ireland. Mr. Johnson told Constable Colthurst that he did not know the names of the two men who opened the car door for him and Mr. Ireland to exit the vehicle. He described the two men as Mr. Ireland’s guys. Mr. Johnson said that afterwards, he and Mr. Ireland parted ways with the two men on bicycles.

[46] Mr. Johnson admitted to Constable Colthurst that he told Mercedes what happened. He denied telling her that he and Mr. Ireland had a plan to rob the drug dealer. He said he had seen Mr. Ireland with a lot of money, so there was money to pay for the marijuana. He said he had no idea Mr. Ireland had a knife and that there was no plan to stab anyone.

[47] Constable Colthurst told Mr. Johnson that Mercedes said he had a taser and had used it on one of the victims. He also told him that the driver said a taser was used on him. Mr. Johnson initially denied telling Mercedes he had a taser. He eventually said that Mr. Ireland gave him the taser in the car and that he had used it on “the big guy” (Mr. Chavez) when he grabbed Mr. Johnson. He admitted telling Mercedes this. Mr. Johnson said he threw the taser away as he ran away from the scene. He said that Mr. Ireland asked for his taser back. Mr. Johnson also admitted that Mr. Langaigne was one of the two men on the bicycle that day. He eventually admitted that Mr. Thompson was the second male on the bicycle.

[48] At 9:30 p.m., Constable Colthurst informed Mr. Johnson that his mother had found private counsel. Mr. Johnson was given the opportunity to speak to private counsel. After the conversation, Constable Colthurst tried multiple times to find out whether Mr. Johnson knew the whereabouts of a chain that Mr. Chavez’s family said he was wearing. Multiple times thereafter, Mr. Johnson said he was following the advice of his lawyer to remain silent.

[49] At 9:46 p.m., Mr. Johnson was also charged with attempted murder. After some discussion about administrative matters, the interview ended at 11:06 p.m.

Issue

[50] The issue on this motion is whether Mr. Johnson should be permitted to lead his exculpatory prior consistent statement before the jury under the Edgar exception.

Law

[51] An exculpatory in-custody statement is a prior consistent statement that is presumptively inadmissible: R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 36. This rule is subject to a number of exceptions. Mr. Johnson relies on the Edgar exception as outlined in R. v. Edgar, 2010 ONCA 529, leave to appeal refused, [2010] S.C.C.A. No. 466.

[52] Under the Edgar exception, a defendant may lead a prior consistent statement when: 1) the defendant testifies and is subject to cross-examination; 2) the statement was made when the defendant was first arrested and accused of the crime; and 3) the statement was spontaneous. Under such circumstances, the exculpatory statement is not admissible for the truth of its contents. Rather, it is admissible to show the defendant’s reaction when first confronted with the allegations. The trier of fact can then consider the statement to assess the credibility of the defendant: Edgar, at para. 50.

[53] The rationale for the Edgar exception and an explanation of how an admissible prior consistent statement may be used is aptly explained at paras. 67, 72 of Edgar:

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.

I conclude, therefore, that it 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. As the English cases cited above hold, the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.

[54] Thus, it is the spontaneity of the exculpatory statement, such as to exemplify the absence of an opportunity to concoct, that gives the statement probative value and justifies its admission.

[55] The first event in the spontaneity analysis is when the accused is first confronted with the accusation of the crime: Liard, at para. 56. A contextual approach is adopted to determine whether an exculpatory statement was provided spontaneously. This is explained in Liard, at para. 63, as follows:

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.

[56] It stands to reason that a circumstance where the defendant has had a chance to “think things out” prior to making the exculpatory statement will ordinarily not satisfy the spontaneity requirement. The probative value of the statement arises in circumstances where the opportunity to fabricate is low. Thus, the statement has the ability to truly reflect the defendant’s honest and genuine reaction to the allegation upon arrest or when first confronted with accusations of the crime. Spontaneity is one of the lynchpins of the Edgar exception.

[57] Therefore, a prior consistent statement made in circumstances that reveal an opportunity to fabricate suggests the absence of spontaneity. Such a statement has no probative value: R. v. Badhwar, 2011 ONCA 266, at paras. 21-22; R. v. Kailayapilla, 2013 ONCA 248, at paras. 58-61.

[58] In circumstances where spontaneity is lacking, the statement may be excluded. Where spontaneity is in doubt, the trial judge should admit the statement and allow the jury to assess its weight. Under such circumstances, the degree of spontaneity can be explored in cross-examination. This will assist the jury in determining what weight to place on the statement: Edgar, at para. 69; Liard, at para. 64; Badhwar, at para. 20.

[59] Under such a circumstance, as instructed in Edgar, at para. 72, the jury should be instructed that:

• The statement is not evidence of the truth of what was said by the accused;
• The statement is evidence of the reaction of the accused when confronted with the crime, which is relevant to his credibility and can be used for the purpose of assessing his credibility; and
• The statement is circumstantial evidence that the jury can use to determine the guilt or innocence of the accused.

[60] Concerns about fabrication can be dealt with by cross-examination and by looking at the degree of spontaneity the proffered statement exhibits: Edgar, at para. 69.

Discussion: Should Mr. Johnson be Permitted to Lead His Exculpatory Statement Before the Jury Under the Edgar Exception?

a) Position of the Parties

[61] The defence submits that Constable Colthurst’s countdown from three in anticipation of Mr. Johnson providing him information describes the spontaneity of Mr. Johnson’s exculpatory statement. Therefore, the defence submits that this should be the starting point of any spontaneity analysis.

[62] The Crown submits that defence counsel’s position is untenable as it fails to consider the several instances where Mr. Johnson had an opportunity to think things through and lied to the police.

b) Analysis

[63] I reject both arguments outlined above. Both arguments focus on a series of single events devoid of the contextual approach required in this analysis. Absent any context, the Crown’s position is the most persuasive and easiest to accept. However, when a contextual approach is adopted, this is a closer call and a more difficult decision.

[64] As mentioned, the defence argues that the countdown is the starting point of any spontaneity analysis. I have viewed the videotaped interview in its entirety. I observed Mr. Johnson to be simultaneously scared, manipulative and dishonest. I watched him bond with and trust Constable Colthurst. As a result of this bond and trust, Mr. Johnson exhibited an ever-increasing and clearly-expressed internal conflict between speaking to Constable Colthurst and heeding his lawyer’s advice to remain silent.

[65] In Badhwar, the defendant was convicted of criminal negligence causing death and failing to stop at the scene of an accident. The spontaneity of his prior consistent statement was considered by the appellate court. The defendant’s prior consistent statement was made five hours after he came into contact with the police and four hours after he arrived at the police station. The appellate court concluded that the defendant had five hours to consider his position on an allegation he knew was coming before he even went to the police station. Thus, the statement was not spontaneous, was of no probative value, and was inadmissible under the Edgar exception: Badhwar, at paras. 21-22.

[66] In Kailayapilla, the defendant was convicted of murdering his wife. He provided an exculpatory statement seven hours after he first came into contact with the police and four hours after he arrived at the police station. The appellate court concluded that his prior consistent statement was not admissible under the Edgar exception because there was no evidence on who the defendant talked to between the police arriving at his home and the eventual statement being given. In effect, crucial facts essential to a determination of the admissibility of the defendant’s prior consistent statement under the Edgar exception were absent: Kailayapilla, at paras. 64-65.

[67] Edgar had not been decided at the time of the trials in Badhwar and Kailayapilla. The Edgar exception did not exist and was not considered. Therefore, the Court of Appeal for Ontario did not have the benefit of a trial record amplified by evidence crucial for a resolution of the Edgar exception. However, the trial judge in Liard considered the Edgar exception, evidence was called on the issue, and a contextual approach was applied to the “time to think it out” criterion.

[68] In Liard, Ms. Liard was acquitted on a charge of the first-degree murder of a 13-year-old girl. Her co-accused and boyfriend, Rafal Lasota, was convicted of first-degree murder. The victim was murdered in Mr. Lasota’s bedroom. Ms. Liard was outside the bedroom at the time.

[69] Two witnesses said that two days before the murder, they overheard Ms. Liard threaten the victim, saying she would cut her into little pieces. Neither witness took the threats seriously. On the day the victim was killed, Ms. Liard called her and arranged a meeting with Mr. Lasota. Ms. Liard, Mr. Lasota, and the victim met at an agreed location and went to Mr. Lasota’s home. Mr. Lasota lived upstairs with his mother. Mr. Lasota’s sister Monika lived in the basement suite with her husband, Artur Dziura. Ms. Liard invited Monika outside for a cigarette during the murder. Part of the Crown’s theory was that she took this action so that Monika would not hear Mr. Lasota killing the victim. Ms. Liard denied blocking Artur Dziura from going to Mr. Lasota’s room to investigate stomping noises that had awoken him.

[70] After the murder, Ms. Liard helped Mr. Lasota cover-up the murder. She washed bloody clothes and lied to Monika, telling her that the victim had gone home. She asked Monika and Artur not to call the police.

[71] Ms. Liard stayed with Mr. Lasota in his bedroom until his mother arrived. His mother confronted him until he confessed to killing the victim. His mother called the police. Ms. Liard and Mr. Lasota fled. Later, they separated. Ms. Liard went to her grandmother’s home where, in plain view, she left a self-serving note. In the note she said that Mr. Lasota had murdered one of her friends. She had nothing to do with it. She was scared and the police would not believe her. She said her life was in jeopardy. The police located Ms. Liard 12 hours after the victim had been murdered. She accompanied police to the station as a potential witness where she provided a statement. In the statement, she said that Mr. Lasota had committed the murder. She also described her role in the cover-up. She was ultimately charged with first-degree murder.

[72] The appellate court made a distinction between a demand to know what had happened and a confrontation with a crime. In Liard, at paras. 60-61, the court notes:

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.

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.

[73] The trial judge’s contextual approach to the spontaneity requirement was summarized with approval in Liard, at paras. 65-68, as follows:

The trial judge applied these principles in finding that Liard had met the spontaneity requirement. […]

[…] 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.

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”.

All 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”.

[74] In this case:

• Mr. Johnson was young. He had no previous experience with the police;
• He was confronted with his involvement in the crime in a skillful and systemic manner;
• His interviewer skillfully established a relationship of trust and bonded with Mr. Johnson;
• Mr. Johnson had the opportunity to make up a story prior to his arrest some three days after the crime and during the many times he asserted his right to silence;
• The effect of the skillful technique used was that Mr. Johnson’s several assertions of his right to silence became an integral part of his reactions to statements about the crime;
• Mr. Johnson exhibited a series of interwoven emotions and traits, including fear, dishonesty, an ability to be manipulative and to be selective in telling the truth;
• The statement Mr. Johnson seeks to introduce is not particularly a model example of an exculpatory statement. His excessive displays of dishonesty and manipulation can be viewed as incriminating.

[75] The interview is best described as a careful interplay between multiple carefully-constructed phases. There was skilful oscillation between questions designed to create trust and a bond and those designed to encourage Mr. Johnson to talk about his involvement in the crime. Mr. Johnson oscillated frequently between asserting his right to silence, expressions of fear, instances of partial truths, and many periods of dishonesty and attempted manipulation. In this chess game, Mr. Johnson is exposed to a series of evidence with increasing degrees of incrimination.

[76] In describing this as a chess game, when a contextual approach is adopted, it is surprising to discover that the multiple phases of questions and answers are so interwoven and inter-connected that it is difficult to arrive at a definitive conclusion on the spontaneity issue. I am left in a state of doubt on the issue. As mentioned, where spontaneity is in doubt, as it is here, the trial judge should admit the statement and allow the jury to assess its weight: Edgar, at para. 69; Liard, at para. 64; Badhwar, at para. 20.

[77] I therefore find that the statement is circumstantial evidence the jury can use to assess Mr. Johnson’s credibility. It will give the jury an opportunity to assess Mr. Johnson’s reaction when he was confronted with his involvement in the crime. This is likely a more accurate portrayal of Mr. Johnson’s reaction than his in-court testimony some years later.

[78] Mr. Ireland is Mr. Johnson’s co-accused. Mr. Johnson implicates Mr. Ireland as the stabber. He places the knife in Mr. Ireland’s hands. He has said that neither he nor Mr. Ireland had any intention to kill or rob the victims. Mr. Ireland has conceded that he was in possession of the knife and that he did the stabbing. However, Mr. Ireland says that he did not have the intent to kill and therefore is guilty of manslaughter and aggravated assault, not second-degree murder or attempted murder. The Crown and the defence have therefore agreed to excise any comments Mr. Johnson made about Mr. Ireland’s agreed discreditable conduct from the statement.

[79] As a condition of admission, Mr. Johnson is also required to testify. Therefore, there shall be ample opportunity for the Crown and Mr. Ireland’s counsel to cross-examine him on the statement. In his statement, Mr. Johnson has provided several topics for effective cross-examination to challenge his credibility and for counsel to explore if they so choose.

[80] For all these reasons, I find that the probative value of admission outweighs any prejudicial effect. In addition, for reasons already articulated, a contextual assessment of the statement leads me to conclude that there is a potential for a miscarriage of justice if the statement is not left for the jury’s consideration.

[81] Mr. Johnson’s application to lead his prior consistent exculpatory statement before the jury under the Edgar exception is therefore granted.

Conclusion

[82] For the reasons outlined above, the application is allowed. As mandated by Edgar, at para. 72, the jury shall be instructed as follows:

• The statement is not evidence of the truth of what was said by the accused;
• The statement is evidence of the reaction of the accused when confronted with the crime, which is relevant to his credibility and can be used for the purpose of assessing his credibility; and
• The statement is circumstantial evidence that the jury can use to determine the guilt or innocence of the accused.

[83] Thus, the jury shall be instructed that they may use the statement to assess the degree of consistency between Mr. Johnson's statement to the police and his evidence at trial. They may use his statement to assess his credibility but shall not consider Mr. Johnson’s statement for the truth of its contents.

[84] The jury shall have the opportunity to watch the videotaped statement and have the benefit of counsels’ cross-examinations of Mr. Johnson. In addition, the jury shall be instructed that it is up to them to determine what weight to give to Mr. Johnson’s statement.

[85] The specific jury instruction shall be as follows:

• As I told you during the trial, I permitted the defence to play Mr. Trayon Johnson’s statement for your consideration. There is a distinction between how you can use the testimony Mr. Trayon Johnson gave in court and how you can use the statement he provided to the police. You can consider his testimony in court for the truth of its contents. You are not to consider his statement for the truth of its contents. Just because a person repeats something several times in the past or has said the same thing in the past does not make what they have said true. Rather you are to use it to assess Mr. Johnson credibility in regards to his testimony in court. One way you are permitted to use the statement is to assess Mr. Johnson’s demeanour when he is confronted with his involvement in these allegations.
• As you may recall the officer adopts a strategy of gradually confronting Mr. Johnson about his role in these incidents by slowly and systematically revealing the incriminating evidence the police had. You may vary in your assessment of when Mr. Johnson is first confronted with allegations of his involvement in these allegations however, you may consider his demeanour as he provided the statement, to assess his emotional state, as the police were confronting him with the allegations, just a few days after the events had occurred.
• Mr. Trayon Johnson several asserted his right to remain silent several times during the statement. You are not to draw any adverse inference from his assertion of his rights. You cannot conclude that he or Mr. Ireland is guilty because Mr. Trayon Johnson chose to assert his right to remain silent, however, when he chooses to speak you can consider what he said. Mr. Trayon Johnson changed his statement and told a number of lies during his statement to the police. I will provide a summary of some of these shortly. You can also use the statement to assess his credibility by considering the inconsistencies in what he said in the statement and his testimony in court.

[86] In addition, the jury shall be instructed that the statement, including Mercedes testimony about what Mr. Johnson told her, is admissible only against Mr. Johnson and not Mr. Ireland.

“ Original signed by Justice Barnes ”

Justice K. Barnes

Released: June 11, 2020