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R. v. Liard and Lasota


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Judge\’s Instructions to the Jury - Murder 1

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R. v. Liard and Lasota

  1. 1. R. v. Michelle Liard and Rafal Lasota Final Jury Charge – March 28-29, 2012 The Honourable Justice David L. Corbett DUTIES OF JUDGE AND JURY INTRODUCTION[1] Tomorrow you will leave this courtroom to start discussing this casein your jury room. It is time for me to tell you about the law you must followin making your decision.[2] When we started this case, I told you about rules of law that apply ingeneral to this case. During the evidence I told you about other rules oflaw that apply to this case. All of those prior instructions still apply.[3] You will have five copies of these final instructions with you in thejury room, if you wish to consult them. You do not have to do so; that is upto you. I tell you this at the outset so that you will know as you arelistening that you will have copies to refer to later.[4] Now I give you more instructions covering a number of topics.Consider them as a whole. Do not single out some as more important andpay less attention to others. All are equally important.[5] First, I will explain your duties as jurors and tell you about thegeneral rules of law that apply to all jury cases.[6] Second, I will advise you of the specific rules of law that govern thiscase and the evidence that you have heard.[7] Third, I will explain what Crown counsel must prove beyond areasonable doubt to establish Ms. Liard’s and/or Mr. Lasota’s guilt and tellyou about the issues that arise on the evidence you have heard. I willdiscuss the issues that you need to decide and review briefly the evidencethat relates to those issues. You must keep in mind, however, that youshould rely on what you remember the evidence was, not what counsel or Isay it was.[8] Fourth, I will comment on the positions that the Crown and defencecounsel have put forward in their closing addresses.(OSJI)(CRIM) -1-
  2. 2. [9] And fifth, I will explain what verdicts you may return and how youshould approach your discussion of the case in your jury room.[10] Before I start to explain your duties as jurors, I wish to make threepreliminary points. First, as I told you earlier, it is my practice to come intothe jury room to speak with you after you have rendered your verdicts.You are not required to stay for that, but you may if you wish. Second,these instructions are intended to be as clear and concrete as I can makethem. There is no innuendo or hidden meaning. I strive to say exactlywhat I mean. Do not try to read between the lines: if I mean to make asuggestion to you, I do so in as clear and direct a way as I can. Third,opinion is divided among judges about whether it is ever appropriate topermit humour in the courtroom. Some regard it as inappropriate, giventhe importance and solemnity of judicial proceedings. Others consider thatoccasional moments of levity can provide a needed break from the tensionthat inevitably develops in a significant criminal case. You might wellconclude that I am in the latter group. I am sure you have notmisunderstood, let me be clear: this case is obviously a very seriousmatter, for all concerned, and the few moments of levity I have permittedduring this trial should not lead you to think otherwise. DUTIES OF JUDGE AND JURY[1] There are two judges in every criminal jury trial: in this trial I am oneand you are the other.[2] As judge of the law, it is my duty to preside over the trial. I decidewhat evidence the law permits you to hear and consider and whatprocedure we follow in the case. And it is my job to explain to you therules of law that you must follow and apply to make your decision.[3] As judges of the facts, your first duty is to decide the facts in thiscase. You make that decision from all the evidence given during the trial.You may also consider the absence of evidence or the failure of anywitness to testify.[4] There will be no more evidence.[5] You are entitled to come to common sense conclusions based onthe evidence that you accept. You must not speculate, however, aboutwhat evidence there might have been or permit yourselves to guess ormake up theories without evidence to support them.(OSJI)(CRIM) -2-
  3. 3. [6] The evidence does not have to answer every question raised in thiscase. It would be an unusual case in which a jury could say: “We nowknow everything there is to know about this case”. You only have todecide those matters that are essential for you to say whether a crime hasbeen proven beyond a reasonable doubt.[7] So that is your first duty: to decide the facts in this case.[8] Your second duty is to accept the law that I tell you applies in thiscase. Even if you disagree with or do not understand the reasons for thelaw, you are required to follow what I say about it. You are not allowed topick and choose among my instructions on the law. You must not consultother sources or substitute your own views. This principle is not because Ithink I am always right. It is because we live under the Rule of Law in thiscountry, and the Crown, defence, everyone involved in this case, and thepublic, all are entitled to have this case decided in accordance with the lawof the land, the same law that applies to everyone.[9] If I make a mistake about the law, justice can still be done in thiscase. The court reporter records everything I say. The Court of Appealcan correct my mistakes. But justice will not be done if you wrongly applythe law. Your decisions are secret. You do not give reasons. No onekeeps a record of your discussions for the Court of Appeal to review. As aresult, it is important that you accept the law from me and follow it withoutquestion.[10] So that is your second duty: to take the law from me.[11] Finally, it is your third duty to apply the law that I explain to you tothe facts that you find to reach your verdict. That is how you decide thecase. IRRELEVANCE OF OUTSIDE INFORMATION[1] As I told you at the outset, you must disregard completely any radio,television, newspaper accounts or internet information you have heard,seen or read about this case, or about any of the persons or placesinvolved or mentioned in it. Those reports, and any other informationabout the case from outside the courtroom, are not evidence.(OSJI)(CRIM) -3-
  4. 4. [2] It would not be fair to decide this case on the basis of anyinformation not introduced or tested by the parties in court and made partof the evidence at trial. You, not the media, or anyone else, are the onlyjudges of the facts.[3] Further, you have been present throughout the trial for the evidence.You have heard all the evidence. Media reports emerge day by day, oftenbased on what was heard in court that day. Those reports do not telleverything that happened in court. A transcript of everything said in courtwould take as much as 150 typewritten pages, per day. Obviously themedia reports only some, not all of the evidence. And media reports mayreflect the opinions of the reporter, or someone interviewed by the reporter,on what he/she has seen or heard.[4] You, not the media, are the judges here. You, not the media, havebeen present in court to see all of the evidence, as it has been presentedin court. You, not the media, are required to withhold judgment until youhave heard all of the evidence, counsel’s closing arguments, and my finalinstructions. You, not the media, are in the best position to judge thiscase. And you, not the media, are bound by your oath or affirmation tocome to your decision, not on the basis of sympathy, prejudice, orpartiality, but on the basis of the evidence, reason, and the law. IRRELEVANCE OF PREJUDICE AND SYMPATHY[1] You must consider the evidence and make your decision withoutsympathy, prejudice or fear. You must not be influenced by public opinionabout this case, or these kinds of cases in general. We expect and areentitled to your impartial assessment of the evidence in this particularcase.[2] I place particular emphasis on this instruction in this case. This is aterrible case. The victim, Aleksandra Firgan-Hewie, was killed in a mosthorrible and brutal manner. You surely have sympathy for her, and for herfamily and friends. And as caring members of the community you are nodoubt angry about what happened to her. Your task is to set youremotions aside and to look dispassionately at the evidence. What does itprove? What does it not prove? Of what things are you sure? Of whatthings are you not sure? If you approach your task calmly anddispassionately, then I am confident you will reach your decision on thebasis of the evidence, reason and the law, and not your emotions. I willcomment again on this point when we review particular aspects of theevidence.(OSJI)(CRIM) -4-
  5. 5. [3] That said, before I move on, I want to be clear about a related point.Because of the nature of this case, and the nature of some of the evidenceyou have seen and heard, I feel it necessary to comment on this pointseveral times. Do not read anything between the lines in theseinstructions. By making these comments, I am not suggesting that youshould come to any particular view about specific pieces of evidence.When I express a view about a piece of evidence, I do so in as clear anddirect a way as I can. When I emphasize the importance of reviewing theevidence dispassionately, that is precisely what I mean: set your emotionsaside and consider what the evidence may establish for you, and what itdoes not establish for you, without regard to the emotions it may stir withinyou. IRRELEVANCE OF PUNISHMENT[1] As I told you at the outset of the trial, punishment has no place inyour discussions or in your decision. If you find Ms. Liard and/or Mr.Lasota guilty of an offence, it is my job, not yours, to decide whatpunishment is appropriate. JURORS’ APPROACH TO TASK[1] When you go to your jury room to begin your discussions, it isimportant that no one starts off by telling everybody else that s/he hasalready made up his or her mind and will not change it, whatever anyoneelse may say. That is not the way to decide a case.[2] As jurors, it is your duty to talk with and listen to one another.Discuss the evidence. Put forward your own views. Listen to what othershave to say. Try to reach an agreement.[3] Each of you has to decide the case for yourself. You should only doso, however, after you have considered the evidence with your fellowjurors and applied the law that I have explained to you.[4] During your discussions, do not hesitate to re-consider your ownopinions. Change your mind, if you find that you are wrong. Do not giveup your honest beliefs, however, just because others think differently. Donot change your mind only to get the case over with.(OSJI)(CRIM) -5-
  6. 6. [5] Your only responsibility is to determine whether Crown counsel hasproven Ms. Liard and/or Mr. Lasota guilty of an offence beyond areasonable doubt. Your contribution to the administration of criminaljustice is a just and proper verdict. USE OF JUROR NOTES DURING DELIBERATIONS[1] When we began this trial, I told you that you could take notes to helpyou remember what any witness said in testifying here. You may take yournotes with you to the jury room for your use during your deliberations.[2] Your notes are not evidence, any more than the notes that I make orthe lawyers make are evidence. The only purpose for which you may useyour notes during your deliberations is to help you remember what awitness said.[3] It is also important to remember that the notes are those of the note-taker, not someone else. They may or may not coincide with other jurors’memories of the evidence.[4] A jury’s decision is a group decision. Everyone has a say, an equalsay. We depend on the memory and judgment of each one of you todecide this case. Do not simply defer to the person who is or seems to bethe best note-taker. PROCEDURE FOR QUESTIONS[1] If, during your discussions, you have any questions, please put themin writing and give them to the court constable who will be outside the doorof your jury room. The constable will bring the questions to me. I willdiscuss them with the lawyers. You will then be brought back into thecourtroom. Your questions will be repeated and I will respond to them. JUDGE’S REVIEW AND COMMENTS ON EVIDENCE[1] It is my duty to review what I consider to be the important parts ofthe evidence, and to relate that to the issues that are yours to decide. Indoing that, I may overlook evidence you think important, or mentionevidence you think is insignificant. I may make a mistake about what awitness said while testifying.[2] My references to the evidence are only to help you remember it, andto show you how it relates to the issues in this case. If my memory of theevidence is different from yours, it’s yours that counts. You find the facts(OSJI)(CRIM) -6-
  7. 7. and base your decision on your memory of the evidence, not mine, and notthat of counsel.[3] Our law also permits me to comment or express opinions aboutissues of fact. When I do that, however, you do not have to reach thesame conclusion. You, not I, decide what happened in this case. REQUIREMENTS FOR A VERDICT[1] To return an effective verdict in this case requires that all of youagree on your decision. A verdict, whether of guilty or not guilty of anoffence, is the unanimous opinion of the whole jury.[2] There are times, however, when a jury is unable to reach a verdict.Jurors have the right to disagree.[3] You should make every reasonable effort, however, to reach averdict. Consult with one another. Express your own views. Listen to theviews of others. Discuss your differences with an open mind. Try yourbest to decide this case.[4] Everyone should give fair, impartial and equal consideration to allthe evidence. Your goal should be to reach an agreement that matchesthe individual judgment of each juror. You must not agree, however, onlyfor the purpose of getting the case over with.[5] When you reach a unanimous verdict, your foreperson should recordit on your verdict sheet and notify the court constable. We will come backinto court to receive it. Your foreperson will tell us your verdict in thecourtroom.[6] If you cannot reach a unanimous verdict, you should notify the courtconstable in writing. The constable will bring me your message. I willdiscuss what has happened with Crown and defence counsel. We willthen return to the courtroom to see what we should do next.[7] You do not give reasons for your decision, and you do not have toagree among yourselves on your reasons. You must be unanimous aboutyour decision on each charge to return a verdict, but each of you maycome to that decision by different paths of reasoning.(OSJI)(CRIM) -7-
  8. 8. FURTHER INSTRUCTIONS[1] At the end of these instructions, the lawyers may persuade me thereis something else I should tell you. I may have made a mistake, or leftsomething out. Perhaps what I have said could be stated more clearly tohelp you understand it better. Unless I tell you otherwise, do not considerany further instructions I may give you to be any more or less importantthan anything else I have said about the law. All the legal instructions,whenever they may be given, are part of the same package. GENERAL PRINCIPLES PRESUMPTION OF INNOCENCE[1] Every person charged with an offence is presumed to be innocent,unless and until Crown counsel has proven her guilt beyond a reasonabledoubt.[2] The indictment on which you are trying Michelle Liard and RafalLasota is only a formal accusation or charge. It tells them, as it tells you,what specific crime Crown counsel alleges that they committed. Thecharges are not evidence. They are not proof of guilt.[3] The presumption of innocence means that Ms. Liard and Mr. Lasotastarted the trial as innocent people. The presumption stays with themthroughout the case, including your deliberations at the end of the trial. Itis only defeated if and when Crown counsel has satisfied you beyond areasonable doubt that Ms. Liard and/or Mr. Lasota is guilty of an offence.[4] At the start of this trial, Ms. Liard pleaded not guilty. Mr. Lasotapleaded not guilty to first degree murder, but guilty of the lesser andincluded offence of manslaughter. The Crown did not accept Mr. Lasota’splea of guilty to manslaughter. This means that the Crown has to proveMr. Lasota’s guilt of an offence beyond a reasonable doubt: themanslaughter plea counts for nothing since the Crown did not accept it.You will decide this case on the basis that Mr. Lasota pleaded not guilty.That is, you must decide this case on the basis that Mr. Lasota ispresumed innocent of all charges, unless and until Crown counsel hassatisfied you beyond a reasonable doubt of his guilt. I will return to thispoint when I review the law of murder and manslaughter with you in a fewminutes.(OSJI)(CRIM) -8-
  9. 9. [5] As I have noted, Ms. Liard pleaded not guilty to the charge of firstdegree murder. You may have noticed that during her interview withpolice, Ms. Liard was cautioned for the offence of being an accessoryafter-the-fact to murder. Being an accessory after-the-fact to murder is notan included offence in the crime of first degree murder. Therefore, it wasnot possible for Ms. Liard to plead guilty to being an accessory after-the-fact in this trial. You should not concern yourselves with whether Ms. Liardwas, or was not, an accessory after the fact. That issue is not before you.It is not yours to decide. BURDEN OF PROOF[1] Neither Ms. Liard nor Mr, Lasota have to present evidence or proveanything in this case. In particular, neither has to prove that s/he isinnocent of the crime charged.[2] From start to finish, it is Crown counsel who must prove guilt beyonda reasonable doubt, not Ms. Liard or Mr. Lasota who must prove her/hisinnocence. REASONABLE DOUBT[1] The phrase, “beyond a reasonable doubt”, is a very important part ofour criminal justice system.[2] A reasonable doubt is not a far-fetched or frivolous doubt. It is not adoubt based on sympathy or prejudice. It is a doubt based on reason andcommon sense. It is a doubt that logically arises from the evidence, or thelack of evidence.[3] When we say that something is probably true, we mean that it ismore likely than not to be true.[4] It is not enough for you to believe that Ms. Liard is probably or likelyguilty. In those circumstances, you must find her not guilty, becauseCrown counsel would have failed to satisfy you of her guilt beyond areasonable doubt. Proof of probable or likely guilt is not proof of guiltbeyond a reasonable doubt.[5] Likewise with Mr. Lasota. It is not enough for you to believe that Mr.Lasota is probably or likely guilty. In those circumstances, you must find(OSJI)(CRIM) -9-
  10. 10. him not guilty, because Crown counsel would have failed to satisfy you ofhis guilty beyond a reasonable doubt.[6] You should also remember, however, that it is nearly impossible toprove anything with absolute certainty. Crown counsel is not required todo so. Absolute certainty is a standard of proof that is impossibly high.[7] Thus, proof beyond a reasonable doubt is more than “probable” or“likely” guilt. There is not a mathematical formulation. However, proof ofguilt beyond a reasonable doubt is much closer to absolute certainty than itis to proof of probable guilt.[7] If, at the end of the case, after considering all the evidence, you aresure that Ms. Liard committed an offence, you should find her guilty of it.[8] If, at the end of the case, based on all of the evidence, or the lack ofevidence, you are not sure that Ms. Liard committed an offence, youshould find her not guilty of it.[9] Similarly with Mr. Lasota. If, at the end of the case, based on all theevidence, you are sure that Mr. Lasota committed an offence, you shouldfind him guilty of it.[10] If, at the end of the case, based on all the evidence, or the lack ofevidence, you are not sure that Mr. Lasota committed an offence, youshould find him not guilty of it. ASSESSMENT OF EVIDENCE[1] To make your decision, you should consider carefully, and with anopen mind, all the evidence presented during the trial. It will be up to youto decide how much or how little you will believe and rely upon thetestimony of any witness. You may believe some of it; you may believenone of it; you may believe all of it: it is up to you.[2] When you go to your jury room to consider the case, use the samecommon sense that you use every day in deciding whether people knowwhat they are talking about, and whether they are telling the truth. There isno magic formula for deciding how much or how little to believe of awitness’ testimony or how much to rely on it in deciding this case. But hereare some questions you might keep in mind during your discussions.(OSJI)(CRIM) - 10 -
  11. 11. [3] Did the witness seem honest? Is there any reason why the witnesswould not be telling the truth?[4] Did the witness have any reason to give evidence that is morefavourable to one side than to the other?[5] Did the witness seem to have a good memory? Does the witnesshave any reason to remember the things about which he testified? Did anyinability or difficulty that the witness had in remembering events seemgenuine, or did it seem made up as an excuse to avoid answeringquestions?[6] Did the witness’ testimony seem reasonable and consistent as s/hegave it? Is it similar to or different from what other witnesses said aboutthe same events? Did the witness say or do something different on anearlier occasion?[7] Do any inconsistencies in the witness’ evidence make the mainpoints of the testimony more or less believable and reliable? Is theinconsistency about something important, or a minor detail? Does it seemlike an honest mistake? Is it a deliberate lie? Is the inconsistency becausethe witness said something different, or because s/he failed to mentionsomething? Is there any explanation for it? Does the explanation makesense?[8] What was the witness’ manner when s/he testified? How did s/heappear to you? Do not jump to conclusions, however, based entirely onhow a witness has testified. Looks can be deceiving. Witnesses comefrom different backgrounds. They have different abilities, values and lifeexperiences. There are simply too many variables to make the manner inwhich a witness testifies the only or most important factor in your decision.[9] These are only some of the factors that you might keep in mindwhen you go to your jury room to make your decision. These factors mayhelp you decide how much or little you will believe of and rely upon awitness’ evidence. You may consider other factors as well. NUMBERS OF WITNESSES[1] How much or little you rely on the evidence of the witnesses doesnot necessarily depend on the number of witnesses who testify, one wayor another.(OSJI)(CRIM) - 11 -
  12. 12. [2] Your duty is to consider all the evidence. You may decide that thetestimony of fewer witnesses is more reliable than the evidence of a largernumber. It is up to you to decide.[3] Your task is to consider carefully the testimony of each witness.Decide how much or little you believe of what each witness has said. Donot decide the case simply by counting witnesses. EVIDENCE DEFINED[1] To decide what the facts are in this case, you must consider only theevidence that you saw and heard in the courtroom. Consider all theevidence in reaching your decision.[2] The evidence includes what each witness said in answering thequestions the lawyers asked. The questions themselves are not evidenceunless the witness agreed that what was asked was correct. The answersof the witness are his evidence.[3] There were exhibits numbered during the trial. They are part of theevidence. You may rely upon them, like any other evidence, as much oras little as you see fit when you decide this case. They will go to the juryroom with you, where you may examine them as you see fit. There are,however, three exceptions. I am not sending the following exhibits to thejury room with you:(i) The first CD-ROM containing an excerpt of the police statement ofArtur Dziura relating to his evidence concerning whether Ms. Liard blockedhis entry to the house;(ii) The second CD-ROM containing an excerpt of the core of Mr.Dziura’s statement to police (which included the excerpts contained on thefirst CD-ROM of his evidence); and(iii) The three CD-ROMs containing the edited statement of MichelleLiard’s statement to police.I am sending with you the CD-ROM of Aleksandra Firgan-Hewie’sstatement to police.(OSJI)(CRIM) - 12 -
  13. 13. [4] The reason why I am not sending items (i), (ii) and (iii) to the juryroom with you is that they form only a part of the evidence of thosewitnesses. They should not be given more prominent treatment than thetestimony those witnesses gave in court. I will be providing you with moredetailed instructions about this evidence later in these instructions.[5] You may, during your deliberations, find that you wish to have aportion of a witness’ evidence replayed for you. If that happens, you willsend me a note, indicating what you wish to have replayed for you. It ismy responsibility, in consultation with counsel, to ensure that all aspects ofa witness’ testimony on a point are replayed for you, including his/herevidence during examination in chief, during cross-examination, and duringthe statements that were played for you in court, where appropriate. Inother words, if you wish to hear the evidence on a point again, it is myresponsibility to make sure you hear all the pertinent evidence on thatpoint. Since the CD-ROMs of Mr. Dziura’s and Ms. Liard’s statements areonly a part of their evidence, if you wish to have any portion of themreplayed, you may hear them, together with the pertinent portions of theirevidence in court. To do so, you should send a note to me setting out yourrequest.[6] I am sending the CD-ROM of Ms. Firgan-Hewie’s statement withyou, because it is a complete record of her statement to the police. Youmay recall that Ms. Liard testified about the text message that she sent toMs. Firgan-Hewie during that interview, which you can see on the CD-ROM. Apart from that evidence of Ms. Liard’s, there is no other evidencethat would have to be played for you to complete the record of Ms. Firgan-Hewie’s interview with police. And for that reason I am sending that CD-ROM with the other exhibits into the jury room.[7] It is for you to decide what weight, if any, to place on the exhibits.Consider them as you do the oral testimony of the witnesses in weighinghow much or how little weight to place on any of them.[8] As I told you at the outset of the trial, things that are agreed by theparties are facts in this trial. There are agreed facts. They are set out inwriting in Exhibits that were read out to you when they were introduced intoevidence. Since the parties have agreed to these facts, no evidence isrequired to prove them. You must take what the parties they have agreedon as facts in this case.[9] As I explained to you earlier, there are some things that are notevidence. You must not consider or rely upon them to decide this case.(OSJI)(CRIM) - 13 -
  14. 14. [7] The charges that you heard read out when we started this case arenot evidence. What the lawyers and I said when we spoke to you duringthe trial, including what I am saying to you now, is not evidence. In thistrial, only the things witnesses said and the exhibits are evidence. DIRECT AND CIRCUMSTANTIAL EVIDENCE[1] Some of you may have heard the terms “direct evidence” and“circumstantial evidence”. You may believe or rely upon either one asmuch or as little as the other in deciding this case.[2] Sometimes witnesses tell us what they personally saw or heard. Forexample, a witness might say that he/she saw it raining outside. That iscalled direct evidence.[3] Often, however, witnesses say things from which you are asked todraw certain conclusions. For example, a witness might say that he or shehad seen someone enter the courthouse lobby wearing a raincoat andcarrying an umbrella, both dripping wet. If you believed that witness, youmight conclude that it was raining outside, even though the evidence wasindirect. Indirect evidence is sometimes called circumstantial evidence.[4] In making your decision, both kinds of evidence count. The lawtreats both equally. Neither is necessarily better or worse than the other.In each case, your job is to decide what conclusions you will reach basedupon the evidence as a whole, both direct and circumstantial. To makeyour decision, use your common sense and experience. HEARSAY[1] I provided you with instructions on the law of hearsay evidenceduring the trial. Those instructions still apply, as do all of the instructions Iprovided to you during the trial. I summarize my instructions on hearsaynow.[2] Witnesses are asked to tell you what they themselves know: forexample, what they heard and saw. They are not in court to tell us whatsomeone else knows. If what someone else knows is to be put inevidence, the proper way to do that is to call that other person as awitness.(OSJI)(CRIM) - 14 -
  15. 15. [3] When a witness tells us what someone else has told her, we oftencall that hearsay. Ordinarily, hearsay evidence is not admissible, since it isone witness telling us what someone else knows, rather than what s/heknows. On the other hand, sometimes you need to hear what someoneelse told a witness in order to understand that witness’ evidence fully.[4] There are exceptions to the hearsay principle. I will explain therelevant ones to you shortly. There are also some occasions whensomething may sound like it is hearsay, but truly it is not. I will start there,to explain the hearsay principle more fully. Then I will address exceptionsto it that apply in this case.The Hearsay Principle[5] “Hearsay” is where a witness testifies to an out-of-court statementmade by someone else for the purpose of proving the truth of thatstatement.[6] “Hearsay” is not restricted to witnesses who tell us what they havebeen told. Documents may also be hearsay. For example, in AleksandraFirgan-Hewie’s diary, she sometimes records things that other people havetold her. Those statements, recorded in the diary, are no less hearsay forbeing written down. So, to be clear, “hearsay” includes “hear-write”.[6] Sometimes, however, an out-of-court statement is relevant, not forthe truth of the statement, but for the fact that the statement was made.For example, you heard Teresa Lasota explain some of what she was toldby her daughter Monika, and Monika’s boyfriend Artur Dziura. WhatMonika and Artur said to Teresa was hearsay, coming into evidencethrough Teresa. However, this evidence was significant for anotherpurpose: on the basis of what she had been told, Teresa Lasota didvarious things. She questioned her son Rafal. And after she saw thatfurniture had been moved in her bedroom, she investigated in the backyard. Then she questioned Rafal again. She had to tell you some of whatshe had been told by Monika and Artur in order for you to understand whyshe did what she did. And that was the purpose of her telling you what shehad been told.[7] The same thing is true with hearsay that is written down, such as thehearsay in Ms. Firgan-Hewie’s diary. You may consider those statementsto understand what Ms. Firgan-Hewie was thinking, but you may notconsider them to prove that what was said to her was, in fact true. Oneconcrete example may clarify this distinction for you. In her diary, Ms.(OSJI)(CRIM) - 15 -
  16. 16. Firgan-Hewie writes that she has been told by someone else that GaryMacdonald’s mother wants to beat her up. You may consider this asevidence that Ms. Firgan-Hewie was, in fact, told this. If you accept thatshe was, you may consider that this could have had some bearing on howMs. Firgan-Hewie was feeling about having made the police statementabout Gary Macdonald. You may not consider this as evidence that GaryMacdonald’s mother actually made this threat to someone. That would beusing the statement in the diary for a hearsay purpose, since Ms. Firgan-Hewie does not have personal knowledge about whether the statementwas ever made by Mr. Macdonald’s mother. There is no evidence in thistrial that Gary Macdonald’s mother ever made this threat, apart from theentry in Ms. Firgan-Hewie’s diary. And since you may not use that entryfor a hearsay purpose, you would not have any evidence on which youcould conclude that Gary Macdonald’s mother ever made the threat. Asfar as you could go is to conclude that someone told Ms. Firgan-Hewie thatthe threat had been made. This distinction is perhaps clear to you usingthis example, since it does not matter, for the purposes of this trial,whether Gary Macdonald’s mother ever made such a threat. It may matterthat Ms. Firgan-Hewie had been told that the threat had been made, for thereasons I have just described to you.[8] There are two primary exceptions to the hearsay principle that applyin this case. First, a hearsay statement from an accused person may beput into evidence against that accused person. Second, there is a“principled exception” to the hearsay rule, where a witness is not availableto testify, and her out-of-court statement is made in circumstances thatcould lead to a conclusion that the statement was reliable. I will start withexamples of the “principled exception”, and then move to examples ofhearsay statements made by Ms. Liard and Mr. Lasota.Hearsay Statements of Aleksandra Firgan-Hewie[8] You heard several witnesses testify about things said by AleksandraFirgan-Hewie, notably Racheal Miller and Kevin Martins. You also sawMs. Firgan-Hewie’s diary, which is a hearsay document. And you saw thestatement given by Ms. Firgan-Hewie to police in connection with therobbery said to have been committed by Mr. Macdonald. This statement,too, is hearsay. It was said by Ms. Firgan-Hewie, but it was said outsidethe courtroom, and counsel did not have an opportunity to cross-examineher about it, so it is hearsay.[9] Obviously, Ms. Firgan-Hewie is not available to testify.(OSJI)(CRIM) - 16 -
  17. 17. [10] I have permitted these statements made by Ms. Firgan-Hewie intoevidence. It is for you to consider them and to decide how much or howlittle weight to place on any of them. Like the evidence of the witnessesyou heard in court, you may believe some of them. You may believe noneof them. You may believe all of them. It is up to you.[11] Recall, as you assess these statements, that counsel have not had achance to cross-examine on these statements. These statements werenot made under oath. Consider the circumstances in which the statementswere made, and what was said in deciding how much or how little tobelieve and rely upon them.[12] In respect to the diary, I suggest you approach it in the followingway, in order to determine how much or how little to rely on anythingwritten in the diary. First, consider the diary as a whole. It is a personaljournal, written by a 13 year old girl. You can consider how often shewrote in her diary. Consider what she wrote about, and what she didn’twrite about. For example, there is very little in her diary about what shewas doing in school. It is for you to say, but it seems to me that the diary ischiefly concerned with recording Ms. Firgan-Hewie’s deepest personalthoughts about her friends, her social activities, and what she wants forherself.[13] Again, though it is for you to say, it appears to me the diary waswritten with the intention that it be kept private. There is no evidence thatMs. Firgan-Hewie ever showed the diary to anyone else. The entries in itare deeply personal. You may consider that, as a result, you are preparedto accept that Ms. Firgan-Hewie was writing truthfully. It is for you to say.[14] In respect to the statement to police, consider the circumstances inwhich it was made. Ms. Firgan-Hewie was speaking with police about aserious matter, an alleged robbery. She also mentioned the robbery at herown house, and she spoke of her belief that Mr. Macdonald and DonovanRodrigues had been stealing meat from the Dominion store.[15] In respect to Ms. Firgan-Hewie’s statements to Racheal Miller andKevin Martins, you should consider that they were made in circumstancesthat were less private and less serious, than the diary or the policestatement. You may also consider the nature of what she has saying, andthe fact that her statements may be corroborated by other evidence. Forexample, Ms. Miller says that Ms. Firgan-Hewie told her that she wasleaving to meet Ms. Liard and Mr. Lasota. You know that Ms. Liard hasconfirmed that this call took place, and that Ms. Firgan-Hewie did go to(OSJI)(CRIM) - 17 -
  18. 18. meet with Ms. Liard and Mr. Lasota. I address the rest of what Ms. Millerreported about this conversation later in these instructions.(OSJI)(CRIM) - 18 -
  19. 19. Out of Court Statements by Ms. Liard and Mr. Lasota[1] Out of court statements by an accused person are admissibleagainst her/him. Such statements are not admissible against their co-accused. Thus, things said by Ms. Liard to other people are admissibleinto evidence against her, but not against Mr. Lasota. Things said by Mr.Lasota are admissible against him, but not against Ms. Liard.[2] Before you can use a statement said to have been made by Ms.Liard against her, or a statement made by Mr. Lasota against him, youhave to decide whether they actually made those statements. For Ms.Liard, for example, you will have to decide whether she actually said thethings reported by Mr. Dziura and Monika Lasota before you can use themagainst Ms. Liard. For Mr. Lasota, for example, you will have to decidewhether he actually told his mother he had killed Ms. Firgan-Hewie beforeyou can use that statement against him.[3] In deciding whether Ms. Liard or Mr. Lasota actually made aparticular statement, use your common sense. Take into account people’scondition at the time of the conversation. Bear in mind anything else thatmay make it seem more or less likely that the statement was made as itwas described to you.[4] Unless you decide that Ms. Liard made a particular statement, youshould not use it against her. Likewise, unless you decide that Mr. Lasotamade a particular statement, you should not use it against him.[5] Consider each alleged statement separately. Using the examples Ihave just described, you may conclude that Teresa Lasota’s evidence ofher son’s confession to her is reliable and should be believed. TeresaLasota’s evidence on this point was not challenged, she had no reason tolie about it, and it turned out that Ms. Firgan-Hewie had, in fact, been killed.On the other hand, you may have more difficulty accepting the details ofconversations with Ms. Liard provided to you by Mr. Dziura and MonikaLasota. Parts of their evidence were challenged vigorously. They werefrightened and agitated at the time. I will comment further on this evidencelater. My point, here, is that you must consider each statement separatelywhen deciding if you accept it.[6] There are two exceptions to this principle that may apply in thiscase. First, where a statement is made by one co-accused in thepresence of another co-accused, you may, depending on thecircumstances, take it into account for the co-accused. For example, Ms.(OSJI)(CRIM) - 19 -
  20. 20. Liard is alleged to have made a comment about wanting to cut Ms. Firgan-Hewie into pieces in Mr. Lasota’s presence (according to Mr. Martins’evidence), and then, in Mr. Lasota’s presence, to have confirmed havingmade this statement (according to Mr. Jacobs’ evidence). You mayconsider that Mr. Lasota adopted Ms. Liard’s statement. You mayconsider that, even if you are not satisfied that he adopted the statement,that he was aware of it and that it may have affected him. It is for you tosay.[7] The second exception is a rather complicated legal formulation thatpermits you, in certain circumstances, to take the statement of one co-conspirator into account against another co-conspirator. Where the Crownalleges, as it does in this case, that two people committed a planned anddeliberate murder, the Crown is alleging that they conspired to commitmurder and then committed murder. If you conclude, from the evidence ofhis own words and conduct, that Mr. Lasota was probably a member of aconspiracy with Ms. Liard, you then go on to consider whether the wordsand conduct of Ms. Liard said and did while the conspiracy was ongoing, tofurther its purpose. Consideration of Ms. Liards words and conduct maythen be used by you to decide whether you are satisfied beyond areasonable doubt that Mr. Lasota was a member of the conspiracy.[8] Similarly with Ms. Liard: if you conclude that Ms. Liard was probablya member of the conspiracy with Mr. Lasota, you may then go on toconsider the words and conduct of Mr. Lasota in deciding whether you aresatisfied beyond a reasonable doubt that Ms. Liard was a member of theconspiracy.[9] In this case, since the conspiracy is alleged to be between twopeople, the practical application of this principle is more straightforwardthan it sounds. If the evidence against Mr. Lasota satisfies you that thekilling was probably planned between him and Ms. Liard, then you mayconsider what Ms. Liard said and did in deciding whether the Crown hasproved Mr. Lasota’s guilt beyond a reasonable doubt. Similarly, if theevidence against Ms. Liard satisfies you that she planned to kill Ms.Firgan-Hewie with Mr. Lasota, on a balance of probabilities, then you mayconsider what Mr. Lasota said and did in deciding whether the Crown hasproved Ms. Liard’s guilt beyond a reasonable doubt.[10] In practical terms, this instruction only affects a limited portion of theevidence: notably, Ms. Liard’s conduct from the time she was outsidesmoking with Monika Lasota to the time that Mr. Lasota emerged from thehouse after he had killed Ms. Firgan-Hewie. The other things said and(OSJI)(CRIM) - 20 -
  21. 21. done by Ms. Liard in this case by Ms. Liard appear to have been said anddone in Mr. Lasota’s presence, and so you may take them into accountagainst him, based on your assessment of the circumstances. You mayconsider that the only thing said or done by Mr. Lasota that seems to fitinto this category is his killing of Ms. Firgan-Hewie. You may take this factinto account against Ms. Liard if you are satisfied that she probablyplanned with Mr. Lasota to kill Ms. Firgan-Hewie.[11] Finally, note that the threshold for considering the words andconduct of a co-conspirator is “probably”. This is only the threshold forconsidering the evidence of what one alleged co-conspirator said and didas evidence against the other alleged co-conspirator. It is a standard toapply to determine what evidence you may consider against each. It doesnot reduce the burden on the Crown to prove each essential element of thecharges against Ms. Liard and against Mr. Lasota. EVIDENCE OF MICHELLE LIARD[1] Michelle Liard testified. She was not required to do so.[2] When a person charged with a crime testifies, she is just like anyother witness. You may believe some, none or all of what she says. Youconsider her testimony by applying the same tests and considering thesame factors as with any other witness. Like any other witness, youdecide how much or little you will believe of and rely upon her testimony indeciding this case.[3] Subject to any specific contrary instructions that I may give, you mayconsider the testimony of Ms. Liard to help you decide the case against herand the case against Mr. Lasota. You do not consider that testimony onlyto help you decide the case against Ms. Liard.[4] As you know, Ms. Liard’s statement to police was played to you aspart of her testimony. I will instruct you about how you may use thisstatement in a few minutes. PRIOR STATEMENTS[1] During the trial, I gave you extensive instructions about the use thatmay be made of prior statements made by persons who testified beforeyou. I now synthesize these instructions for you.(OSJI)(CRIM) - 21 -
  22. 22. [2] As I told you at the outset of this trial, the evidence is what thewitnesses say in court and the exhibits that have been filed. Questionsasked by the lawyers are not evidence, unless the witness agrees withwhat was asked.[3] Often a witness has said things in the past about the events to whichs/he testifies. These are called prior statements. They are statementsmade prior to coming to court to testify. These statements may be maderight after the events in issue, for example, in a statement given to police.You have heard that several of the witnesses, and Ms. Liard, gave suchstatements to police shortly after Ms. Firgan-Hewie was killed.[4] A prior statement may be made long after the events. For example,you heard that Barbara Dixon, the teacher, was not interviewed until 2011.[5] A prior statement may also be made in connection with anotherevent, or in court at an earlier stage in this proceeding. For example, youheard that several witnesses testified at the preliminary inquiry in this case.You may recall that I told you that a preliminary inquiry is a normal step ina serious criminal prosecution, where some of the witnesses come to courtand testify under oath.[6] Sometimes a witness may make several prior statements. Forexample, a witness may speak to police more than once, and then thatwitness may testify at the preliminary inquiry, all before testifying beforethe jury at the trial.[7] In most circumstances, a witness is not permitted to testify aboutprevious statements she has given that are consistent with her testimonyat trial. This is because, generally, the fact that a witness has saidsomething on previous occasion does not make what she is saying anymore or any less true. Thus, you may recall, I told you to disregardevidence of Teresa Lasota when she was asked if she had given police aconsistent statement in December 2008 to a portion of her evidence givenat trial.[8] It is for this reason that you have not heard evidence about priorconsistent statements from witnesses who testified before you: priorconsistent statements are not generally admissible for the truth of theircontents. But that does not mean that prior consistent statements cannotbe used at all.(OSJI)(CRIM) - 22 -
  23. 23. Present Recollection[9] When a witness testifies, she tells you what she knows andremembers at the time she is testifying. This is called her “presentrecollection”: what she recalls at the present.Past Recollection Refreshed[10] Sometimes a witness forgets something. This is not unusual, sincetrials often happen many months or years after the events. In this case, asyou know, the trial is about 3.5 years after Ms. Firgan-Hewie was killed.Where a witness forgets something about which she has said something ina prior statement, counsel may seek to refresh her memory. You saw thishappen several times and I explained it to your previously. The witness ispermitted to review a portion of her previous evidence, or has it read toher. Then she is asked if, on reviewing her past statement, this refreshesher as to what happened. Where a witness says that her memory hasbeen refreshed, and that she now remembers what she had forgotten, thisis what we call “past recollection refreshed”. The witness used to knowsomething. At some time in the past she has made a statement aboutwhat she knew. She has since forgotten it. But now, reminded of her ownpast statement, she actually has a present recollection today. She hadforgotten, but her memory has been refreshed, and she now remembers.[11] Where a witness’ memory has been refreshed, it is her memory inthe courtroom that is her evidence. You may take into account all of hertestimony on the point – including that she had forgotten and then had hermemory refreshed. You may take into account how her memory wasrefreshed, and the nature of her prior statement, in assessing whether youaccept her evidence today.Past Recollection Recorded[12] Sometimes a witness tries to refresh her memory but still doesn’tremember. An example might be where a witness has written down adetail, such as a phone number or a license number. She reviews her paststatement, but does not, today, remember the number. She may not evenremember having made that part of her prior statement.[13] Where the witness does not remember, after attempting to refreshher memory, she may testify about the prior statement. She may, forexample, testify that she recalls making the prior statement, and that thestatement was truthful. You heard several examples of this during the trial.(OSJI)(CRIM) - 23 -
  24. 24. For example, you may recall that Artur Dziura did not remember, as hewas testifying, that Teresa Lasota had told him that Mr. Lasota hadconfessed to killing “the girl”. He did not remember that Teresa Lasota hadtold him this before he gave his statement to police. In fact, Mr. Dziurainitially testified that he did not know Rafal Lasota had killed anyone at thetime that he spoke to police.[14] When Mr. Dziura testified, he had trouble recalling some of thethings he had told police back in December 2008. Even after his memoryhad been refreshed, he did not remember all of it. But he did testify that hegave the statement to police, and that he was trying to tell them the truth atthe time. In this way he adopted what he said to police on some points hehad forgotten. This is what we call “past recollection recorded”. Thewitness does not remember something when he testifies, even after tryingto refresh his memory, but he is able to testify that the statement wastruthful and accurate when it was made.[15] Where a witness has reviewed his past statement to refresh hismemory, but still does not remember, but where he then adopts thatportion of his past statement, that is his evidence on the point. You takeinto account all of his evidence on the point – including that he hadforgotten, that he still does not remember after having had his memoryrefreshed, that he gave a prior statement, the circumstances of thatstatement, and his adoption of that prior statement before you. You takeall of it into account in deciding whether you accept his evidence today thatwhat he said previously was correct. PRIOR INCONSISTENT STATEMENTS[1] When a witness says one thing in the witness box, but has saidsomething you find to be quite different on an earlier occasion, yourcommon sense tells you that the fact that the witness has given differentversions may be important in deciding whether or how much you believe ofor rely upon the witness’ testimony.[2] Not every difference or omission will be important. You shouldconsider the fact, nature and extent of any differences in deciding theirimportance to you in deciding whether you believe or will rely upon thewitness’ testimony. You should also consider any explanation the witnessgives for the differences.[3] Whatever you choose to make of the differences, you can only usethe testimony given under oath in this trial as evidence of what actually(OSJI)(CRIM) - 24 -
  25. 25. happened. You cannot use the earlier statement as evidence of whatactually happened, unless you are satisfied the witness accepted it as truewhile in the witness box.[4] Even then, like the evidence of any witness, it is for you to saywhether or how much you will believe of, or rely upon it in reaching yourdecision. PRIOR CONSISTENT STATEMENT AS SUBSTANTIVE EVIDENCE: ARTUR DZIURA’S STATEMENT[1] Artur Dziura testified. He also made a statement to police onDecember 11, 2008. The police statement was video-recorded. A copy ofthat video is an exhibit in this case. It is important for you to understandhow to approach Mr. Dziura’s testimony and consider the prior statementas evidence in this case. As I told you during the trial, you can use Mr.Dziura’s police statement as evidence for the truth of its contents, thus youmay treat it differently from other statements you have heard about in thiscase. Both the testimony and this prior statement can be used asevidence of what happened.[2] In deciding whether or how much to believe or rely upon Mr. Dziura’stestimony, you should apply the same principles, in the same way that youdo with any other witness who testifies. You should also consider the fact,nature and extent of any differences that you find between what Mr. Dziurasaid in court and what he said in his police statement in deciding howmuch or little you will believe of or rely upon his testimony at trial.[3] You may also consider the police statement as evidence that what itsaid happened actually took place. Like the witness’ testimony, it is for youto say how much or little you will believe and rely upon the statement indeciding this case.[4] There are several factors that you should consider in deciding howmuch or little you will believe and rely upon the statement as evidence ofwhat happened in this case.[5] Take into account what happened before Mr. Dziura made his policestatement. It appears that Mr. Dziura did sleep at the police station, but hewould not have slept either well or long, given all the circumstances. Mr.Dziura agreed he had been through a terrifying experience the nightbefore, during which he was very agitated. He spoke at length with his(OSJI)(CRIM) - 25 -
  26. 26. common law spouse, Monika, Lasota, before he gave his police statement.By his own admission, he was trying to “piece things together”. Alsoconsider that the statement was made shortly after the events in issue.[6] Consider also the circumstances of the police interview. Mr. Dziuradid not give his statement under oath. He did not promise to tell the truth.He was not cautioned to only tell the officer about things he himself knew.He was not cautioned not to speculate. Consider, also: did the questionsthat were asked let Mr. Dziura provide the answers? Or did the wordsused in the questions suggest to the witness the answers the questionerexpected or wanted? Did the questioner let the witness tell the story?Were words put in the witness’ mouth?[7] Examine, to the extent that you can do so, Mr. Dziura’s behaviourduring the interview. Take into account that the witness did not make thestatement in your presence and, unlike the evidence given at trial, he wasnot cross-examined when he made the statement. You might considerthat when he testified, Mr. Dziura seemed prepared to agree with mostthings asked of him, whether by the Crown or the defence, even if what hewas saying was quite different from what he had said to you earlier. Youmay consider that the absence of any challenge or cross examinationduring his police statement may be very significant, given what asuggestible witness he was at trial.[8] Keep in mind any reason or chance that the witness had or mayhave had for not giving the whole account, or telling the whole truth ingiving the statement or in giving evidence here.[9] Mr. Dziura’s evidence was problematic, I am sure you will agree.But I suggest to you that you should not fasten to his police statementuncritically. When probed under cross examination, the substance of Mr.Dziura’s police statement appeared to have many problems with it. Hisevidence seemed inconsistent with Monika Lasota’s on critical points. Youmay be left wondering what Mr. Dziura actually saw and heard himself,and what he imagines he experienced because Monika Lasota told himabout it. Mr. Dziura did acknowledge that his testimony in court may havebeen affected by family loyalties, whereas his police statement was not,although in weighing that evidence you should also consider that hepresumably had the same loyalties to his spouse of 12 years at the time hemade his statement as he did at the time he testified at trial. At the least, Isuggest you should examine Mr. Dziura’s evidence very carefully, andcompare it to the rest of the evidence in this case, before you are preparedto rely upon any of it.(OSJI)(CRIM) - 26 -
  27. 27. POST-OFFENCE CONDUCT[1] What a person says or does after an offence was committed mayindicate that s/he acted in a way in which, according to human experienceand logic, is consistent with the conduct of a person who has committedthe offence, and inconsistent with the conduct of a person who did not doso.[2] After Ms. Firgan-Hewie was killed, Ms Liard and Mr. Lasota lied toMonika Lasota and Teresa Lasota in telling them that “the girl had gonehome”. Mr. Lasota disposed of Ms. Firgan-Hewie’s body behind a shed inthe Lasota back yard. Mr. Lasota’s cleaned his bedroom quite thoroughly.Ms. Liard shed Mr. Lasota’s clothes. When Teresa Lasota said she wascalling police, Mr. Lasota and Ms. Liard ran away, first to Ms. Liard’shouse, and then into the neighborhood.[3] I would suggest to you that you can make nothing of this post-offence conduct as regards Mr. Lasota. He had killed Ms. Firgan-Hewie.He was conscious of his guilt of having done that. He knew he was in veryserious trouble. This does not help you decide his guilt as betweenmanslaughter, second degree murder, and first degree murder.[4] You may, however, consider Ms. Liard’s conduct after Ms. Firgan-Hewie was killed as evidence of consciousness of guilt. You must,however, also consider her explanations for her conduct. She was in astate of shock. She was not thinking properly. She was grieving theimminent end of an important relationship for her. She may not have actedproperly or well, but acting badly in the face of crisis is not the same thingas murder. It is for you to say whether her conduct may point to guilt, ormay be explained in other ways. POLICE STATEMENT OF MICHELLE LIARD[1] You saw Michelle Liard’s statement to police. She gave thestatement on December 11, 2008, starting roughly twelve hours after Ms.Firgan-Hewie was killed. You may find that certain of the statements madeby Ms. Liard in this interview are consistent with what Ms. Liard testified incourt.[2] As I have told you, as a matter of logic and common sense, therefact that a witness has made a prior consistent statement does not make(OSJI)(CRIM) - 27 -
  28. 28. that person more credible. It does not make their evidence more true justbecause they have repeated it. A witness’ testimony is not made moreprobable or more true by any number of repetitions of it.[3] At the time that Ms. Liard gave her statement, she had spent roughly7.5 hours with Mr. Lasota after the killing. They had plenty of time to “thinkthings through” and devise some sort of story. On the other hand, thekilling was a shocking event. You may consider that Ms. Liard was underconsiderable stress from the time she learned that Ms. Firgan-Hewie wasdead until the time she gave her police statement. You should not ignorethe possibility that her police statement was self-serving. You shouldweigh that possibility. To the extent that you believe the statement maynot have been self-serving, you may find the consistency between thatstatement and her evidence at trial enhances her credibility. In otherwords, if you accept that the statement is not self-serving, you may reasonthat the testimony in court is more likely to be true if, in material details, itcorresponds to material details Ms. Liard told police upon being firstconfronted with the matters at issue in this case.[4] In addition, the law does recognize that the reaction of an accusedperson, when first confronted with an allegation or charge, may haveprobative value. During the interview, Ms. Liard was confronted with threesets of circumstances:(i) she was confronted about washing Mr. Lasota’s clothes, and wascautioned for being an accessory after-the-fact to murder;(ii) she was confronted about her conduct after she learned of Ms.Firgan-Hewie’s murder and explained why she helped Mr. Lasota andstayed with him; and(iii) she was confronted on the charge of first degree murder.In assessing the credibility of Ms. Liard’s testimony in court, and inconsidering her innocence or guilt, you can factor in your observations ofMs. Liard’s reaction and demeanour on being confronted with these things.[5] There is one other purpose for which you may consider thisevidence: the time at which it was given. Ms. Liard gave this statementbefore she could have known of the existence or contents of Ms. Firgan-Hewie’s diary, and before Ms. Liard could have seen the video recording ofMs. Firgan-Hewie’s statement to police concerning the robbery said tohave been committed by Gary Macdonald. It is for you to say, but you may(OSJI)(CRIM) - 28 -
  29. 29. consider that there are entries in Ms. Firgan-Hewie’s diary, and details inMs. Firgan-Hewie’s statement to police, that corroborate parts of Ms.Liard’s statement to police. For example, Ms. Liard says that Ms. Firgan-Hewie was a witness in connection with the robbery, gave a statement topolice about Mr. Macdonald, had been threatened as a result of doing this,and thus was concerned about Mr. Macdonald. You may consider itsignificant that Ms. Liard told police these things before she knew aboutthe diary or saw Ms. Firgan-Hewie’s interview with police.[6] In considering Ms. Liard’s reaction and the question of consistency,factor into your consideration the evidence as to Ms. Liard’s physical andmental state at the time. In assessing consistency, look not only toindividual details but overall consistency. Use your good common sense.[7] I have one caution and one reminder about this evidence.[8] First, I caution you about the things said by police during theinterview. The things said by police in the interview are not evidence inthis trial. For example, police suggested, or implied, that Mr. Lasota hadtold them things that implicated Ms. Liard in Ms. Firgan-Hewie’s murder.There is no evidence that Mr. Lasota ever said such things. Police said orimplied that they believe Ms. Liard is guilty of first degree murder. As I toldyou earlier, police are permitted to lie to suspects during interviews. Theymay express opinions (whether they believe them or not) You must nottake anything said by police during the interview as evidence of the truth ofwhat they were saying.[9] Second, I remind you that Ms. Liard’s video statement is notevidence for proof of the truth of its contents. You may only use it for thepurposes I have just described. REASONABLE DOUBT REVISITED[1] As you know, Ms. Liard testified in this trial. She said that there wasno plan to kill Ms. Firgan-Hewie, and that she did not know Mr. Lasotawould kill Ms. Firgan-Hewie when he was left alone with her in hisbedroom.[2] If you believe Ms. Liard’s evidence on these points, then you mustfind her not guilty.(OSJI)(CRIM) - 29 -
  30. 30. [3] Even if you do not believe Ms. Liard’s evidence, if it leaves you witha reasonable doubt about her guilt, you must find her not guilty.[4] Even if Ms. Liard’s evidence does not leave you with a reasonabledoubt of her guilt, you may convict her only if the rest of the evidence thatyou do accept proves her guilt beyond a reasonable doubt.[5] These principles apply with equal force to Mr. Lasota, although theapplication is somewhat different in his case, since the case against him isdifferent than the case against Ms. Liard. In summary, you may onlyconvict him of an offence if the evidence that you do accept proves his guiltbeyond a reasonable doubt.[5] I will return to this instruction after I review with you the concepts ofmanslaughter, second degree murder, and the two theories of first degreemurder advanced by the crown in this case. ELEMENTS OF THE ALLEGED OFFENCES[1] In this section, I provide you with instructions on the law of homicide.As I told you in my opening instructions, for your purposes in this trial youmay consider that homicide is divided into three grades: first degreemurder, second degree murder, and manslaughter.[2] For manslaughter, the Crown must prove beyond a reasonabledoubt two elements: (i) That the accused killed the victim; and (ii) That the accused killed the victim unlawfully.[3] For second degree murder, the Crown must prove beyond areasonable doubt three elements: (i) That the accused killed the victim; and (ii) That the accused the victim unlawfully; and (iii) That the accused had the intent for murder.[4] For first degree murder, the Crown must prove beyond a reasonabledoubt four elements: (i) That the accused killed the victim; and (ii) That the accused killed the victim unlawfully; and(OSJI)(CRIM) - 30 -
  31. 31. (iii) That the accused had the intent for murder; and (iv) That the killing was either: a. Planned and deliberate; or b. Committed during the course of unlawful confinement of the victim.[5] As you will understand from this analysis, the first two elements offirst degree murder are the same two elements for manslaughter, and thefirst three elements of first degree murder are the same as the elementsfor second degree murder.[6] As you know, both Michelle Liard and Rafal Lasota are charged withfirst degree murder. I start this portion of my instructions analysing thecase against Mr. Lasota. I then summarize the case against Ms. Liard. AsI told you in my introductory instructions, I follow this order because Ibelieve it is an easier way in which to explain the law to you. Do not readany other reason into this order for these instructions.[7] I organize each section of my analysis of the law in the form of aquestion. The questions are set out in bold-face type. The Crown mustsatisfy you of each of these questions beyond a reasonable doubt for youto answer “yes” to the questions.Mr. Lasota[1] Mr. Lasota is charged with the first degree murder of AleksandraFirgin-Hewie. At the start of the case, he pleaded guilty to manslaughter.The Crown did not accept that plea. As a result, that plea counts fornothing in this trial, and you should not consider it as an admission by Mr.Lasota. It remains for the Crown to prove each element of the chargesagainst Mr. Lasota.Question #1: Did Mr. Lasota kill Ms. Firgin-Hewie[1] I would suggest to you that the evidence is overwhelming that Mr.Lasota killed Ms. Firgin-Hewie.The Evidence[2] On the evidence of Ms. Liard, unchallenged on these points, sheand Mr. Lasota invited Ms. Firgin-Hewie to meet them some time between4:30 and 5:00 p.m. on December 10, 2008. The cell phone records showthe time of this call from Ms. Liard to Ms. Firgin-Hewie as about 4:47 p.m..(OSJI)(CRIM) - 31 -
  32. 32. The call, and its substance, are confirmed by Racheal Miller, who says thatshe was present when Ms. Firgin-Hewie received the call from Ms. Liard.She testified that Ms. Firgin-Hewie was going to meet Mr. Lasota and Ms.Liard, and that she expected to be gone for fifteen or twenty minutes. Thisis further confirmed by Mr. Martins, who testified that he spoke with Ms.Firgin-Hewie by phone while she was “chilling” with Ms. Liard and Mr.Lasota. The cell phone records indicate the time of this call between Mr.Martins and Ms. Firgin-Hewie was about 5:07 p.m. Ms. Miller testified thatMs. Firgin-Hewie did not leave immediately after she received the call fromMs. Liard. Ms. Miller said that Ms. Firgin-Hewie may have waited fifteen ortwenty minutes after the call before she went to meet Ms. Liard and Mr.Lasota. Finally, the time at the LCBO when Mr. Lasota and Ms. Liardmade their purchase there showed about 5:00 p.m., but it is conceded thatthis clock was running about twenty minutes fast (that is, the time of theLCBO purchases was about 4:40 p.m.). Whatever the precise times, itseems clear that Ms. Firgin-Hewie went to meet with Ms. Liard and Mr.Lasota sometime between about 4:47 p.m. and 5:10 p.m.[3] On Michelle Liard’s evidence, Ms. Firgin-Hewie met up with Mr.Lasota and Ms. Liard at the “tunnel”. The three of them stayed at thetunnel for perhaps five minutes, and then went back to Mr. Lasota’s house.The walk back to Mr. Lasota’s house has been described as taking 2-3minutes, or perhaps 5 minutes. This would place Ms. Liard, Mr. Lasota,and Ms. Firgin-Hewie back at the Lasota house sometime around about5:15 p.m.[4] On Michelle Liard’s evidence, once they arrived at the Lasota house,they went straight to Mr. Lasota’s bedroom. She testified that this isordinarily where she would spend time with Mr. Lasota when at the house,rather than in common areas of the house. You did not hear any evidenceto the contrary on this point. None of Monika Lasota, Artur Dziura andTeresa Lasota was asked about this point, and they could have been.Thus, on Ms. Liard’s uncontradicted evidence on this point, I wouldsuggest to you that this is the normal place Mr. Lasota would “hang out”with people he had over to the house.[5] Ms. Liard testified that she did not remove her coat before Mr.Lasota suggested to her that she go and have a cigarette with his sister,Monika. She says that she did this immediately, leaving Mr. Lasota andMs. Firgin-Hewie in the bedroom.[6] Ms. Liard testified that she may have had one cigarette, or perhapsstarted a second cigarette, while she was outside speaking with Monika(OSJI)(CRIM) - 32 -
  33. 33. Lasota. She estimated the time she was with Monika, before going backinto the house, at about 5-12 minutes. This evidence is generallyconsistent with the evidence of Monika Lasota and Artur Dziura, and Iwould suggest that there is no reason to disbelieve it.[7] Ms. Liard testified that Mr. Dziura asked her to go inside toinvestigate suspicious noises that Mr. Dziura had heard coming fromupstairs. Ms Liard testified that she went into the house and up to the doorof Mr. Lasota’s room. She says that the door to Mr. Lasota’s room wasblocked and that it would only open a short way, which she estimated atbetween about one and two inches, perhaps between 3 and 5 centimeters.This evidence was generally confirmed by Monika Lasota, who alsotestified to the door being blocked, and speaking to her brother through asmall aperture in the door.[8] Both Monika Lasota and Michelle Liard testified that Mr. Lasota toldthem that he would come out in a short while, variously described as “twominutes”, a “couple of minutes”, “five minutes”, or perhaps “ten minutes”.Both Michelle Liard and Monika Lasota testified that they then wentdownstairs and outside. Mr. Lasota came out of the house a short timelater.[9] Ms. Liard testified that, after Mr. Lasota came out of the house, hetook her aside and told her that he “thought he had killed Aleks”.[10] Shortly after Mr. Lasota came out of the house, Monika Lasota andArtur Dziura left the house in one of their vehicles. According to MichelleLiard, from that time, likely around 6:00 p.m., until around 1:45 a.m. onDecember 11, 2008, Ms. Liard and Mr. Lasota were together, aside onlyfrom: (a) for a brief period, perhaps five or ten minutes, when Ms. Liard walked away from the house by herself. This evidence is confirmed by Monika Lasota, who testified that she saw Ms. Liard walking alone down the street at some point after she and Mr. Dziura had left the Lasota home, but before Teresa Lasota returned home around 11:30 p.m.; and (b) inside the house, where Ms. Liard testified that Mr. Lasota was in the bedroom but would not permit her into the bedroom until after he had cleaned it up.[11] Ms. Firgin-Hewie was killed as a result of multiple wounds causedby a bladed instrument, such as a knife. As a matter of common sense,(OSJI)(CRIM) - 33 -
  34. 34. and on the basis of the unchallenged opinion of Dr. Toby Rose, Ms. Firgin-Hewie would have bled a lot from her injuries.[12] On the basis of the blood spatter evidence, it is clear:(a) Ms. Firgin-Hewie was bleeding copiously in Mr. Lasota’s bedroom;(b) Although blood identified with Ms. Firgin-Hewie was found in thebathroom, it presented as having been diluted with water, and wasconsistent with clothes bearing Ms. Fergin-Hewie’s blood being washed inthe bathroom; and(c) there is no evidence that Ms. Firgin-Hewie was bleeding anywhereelse in the Lasota house.[13] Ms. Firgin-Hewie’s body was discovered in a tripled-up greengarbage bag behind the shed of the Lasota house, shortly after policearrived at the house, sometime after 1:30 a.m..[14] When Teresa Lasota got home, and after she had spoken to herdaughter and Mr. Dziura, she went into the home and spoke to Mr. Lasota.He was in his bedroom. The bedroom appeared tidy and clean and did notappear to be the scene of a crime. Mr. Lasota told his mother all was well,and that the girl who had been at the house had “gone home”. TeresaLasota then noticed that some of the furniture in her bedroom had beenmoved, and she suspected that it could have been moved if someone hadbeen removing a bulky object from the house through the sliding glassdoors that led from her bedroom to the back yard. She went to investigateand discovered what appeared to be two green garbage bags behind theshed at the end of the back yard. She did not open the bags, but felt themwith her foot. They felt “soft”. She went back to the house and asked Mr.Lasota about them. Mr. Lasota denied anything amiss, and his motherthen said she was going to go and open the bags to see what was in them.At that point Mr. Lasota broke down and told his mother that he had killed“the girl”, but that it was “an accident”.[15] Teresa Lasota then called police. Mr Lasota left the house throughthe back sliding doors, and left the scene, before police arrived.[16] While it is for you to decide, I would suggest that it is clear that Mr.Lasota killed Ms. Firgin-Hewie, sometime around 6:00 p.m., on December10, 2008. He did so with a bladed instrument such as a knife. Hedisposed of her body behind the shed. He confessed what he had done,first to Ms. Liard, and later to his mother.(OSJI)(CRIM) - 34 -
  35. 35. Analysis[17] It is for you to say whether the Crown has proved beyond areasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie. I suggest to youthat the evidence is overwhelming that he did so, and there is no evidenceto the contrary. However, it is for you to decide, not me. If you are notsatisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie, then you must acquit Mr. Lasota of all charges. If you are satisfiedbeyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie, thenyou should proceed to the next question.Question #2: Did Mr. Lasota kill Ms. Firgin-Hewie unlawfully?[1] Absent a legal defence, it is not lawful to kill someone by woundingthem repeatedly with a bladed instrument such as a knife.[2] There is no evidence in this trial that Mr. Lasota acted in defence ofhimself or his property. Thus there is no evidence that Mr. Lasota had alawful excuse to kill Ms. Firgan-Hewie.[3] Accordingly, while it is for you to say, I would suggest to you that it isclear that the killing of Ms. Firgin-Hewie was unlawful.[4] If you are satisfied beyond a reasonable doubt that Mr. Lasota killedMs. Firgin-Hewie unlawfully, then you should proceed to the next question.If you are not satisfied beyond a reasonable doubt that Mr. Lasota killedMs. Firgin-Hewie unlawfully, then you should acquit Mr. Lasota of allcharges.Question #3: Did Mr. Lasota have the intent for murder?[1] If you are satisfied beyond a reasonable doubt that Mr. Lasota killedMs. Firgin-Hewie, and that he did so unlawfully, then you must thenconsider whether he had the intent for murder.[2] To establish the intent to commit murder, the Crown must satisfy youbeyond a reasonable doubt either: (a) Mr. Lasota intended to cause Ms. Firgin-Hewie’s death; or (b) Mr. Lasota intended to inflict bodily harm on Ms. Firgin-Hewie that was likely to cause her death, and was reckless whether death ensued.(OSJI)(CRIM) - 35 -
  36. 36. [3] Mr. Lasota’s intent is a question of what was in his mind at the timehe killed Ms. Firgin-Hewie.[4] In deciding whether the Crown has proved intent to commit murder,you should consider all of the circumstances of the killing.[5] As a matter of law, and as a matter of common sense, you mayconclude that a person intends the natural and likely consequences of hisown actions. For example, an accused person who knowingly points aloaded gun at someone’s head and pulls the trigger may be found to haveintended to kill the other person, since that would be the natural and likelyconsequences of what the accused person did.[6] Ms. Firgin-Hewie suffered 37 wounds from a bladed instrument,such as a knife. Based on the uncontested evidence of Dr. Toby Rose,two of these wounds were to the throat. One, which appears to be a deeppuncture wound, opened the jugular vein. The other, which appears as along and deep slashing wound, opened the carotid artery. Either woundwould have been sufficient to cause death. Dr. Rose testified that it wastheoretically possible to survive such wounds, if one received immediateexpert medical assistance. She added that if such a wound was sustainedin a hospital, the wound could still prove fatal. She further testified thatdeath could result from either of these wounds in seconds or a fewminutes. There was a third wound, a long and deep slashing wound to thelower cheek and jaw area, which you could consider to have been anattempt to slash Ms. Firgin-Hewie’s throat. In addition, there were severaldeep wounds to Ms. Firgin-Hewie’s chest which caused both of her lungsto collapse. On my recollection of Dr. Rose’s evidence, there were aboutsix wounds which could have caused death.[7] There were also numerous wounds that, by themselves, would notlikely have caused death. There were multiple wounds to Ms. Firgin-Hewie’s hands and arm, which Dr. Rose characterized as “defensivewounds”. In Dr. Rose’s opinion, some of these wounds appeared to be thekind of wound that could be sustained by trying to block an attack, perhapseven by grabbing the blade with the hand. The injuries to the inner sidesof the hands could lead you to conclude, I suggest, that Ms. Firgin-Hewiewas trying to defend herself with her bare hands while she was beingattacked.[8] In addition to the 37 incisive wounds, there were 23 blunt forceinjuries, such as bruises and abrasions. The jury could conclude that Mr.Lasota was holding a knife in one hand, which he used to inflict the incisive(OSJI)(CRIM) - 36 -
  37. 37. wounds, and that he also struck Ms. Firgin-Hewie with considerable forcewith his other hand.[9] You have seen the pictures of Ms. Firgin-Hewie taken prior to theautopsy conducted on her body. While it is for you to say, I would suggestto you that the wounds inflicted on Ms. Firgin-Hewie appear to reflect asustained attack consistent with rage and/or a frenzy.[10] The evidence is consistent that Mr. Lasota was alone in his bedroomat the time that he killed Ms. Firgin-Hewie. Mr. Lasota was a grown man,in his mid-twenties. He was about 6’2” tall, and weighed somewherebetween 160 and 170 pounds. Ms. Firgin-Hewie was 13 years old; shewould have turned 14 in January 2009. She was 5’4” in height, andweighed somewhere around 105 pounds. Based on her appearance, shewas an adolescent, not a small child. But it is clear that she was muchsmaller and physically weaker than Mr. Lasota.[11] You heard some evidence about Mr. Lasota’s general pattern ofconsumption of alcohol and marijuana. You also heard that his intake ofintoxicants increased after he was attacked with a knife a few days beforeMs. Firgin-Hewie was killed.[12] In some circumstances, intoxication may be so severe as to deprivea person of the capacity to form a specific intent, such as the intent to kill.I am instructing you that those circumstances do not exist in this case.Since this point has been conceded by Mr. Grill in his closing address, Iwill not review the evidence on this issue in great detail. Monika Lasotadescribed Mr. Lasota as “very intoxicated” when she spoke to him throughhis blocked door at around the time of the killing. She described him aswalking as if he had “broken knees”. She said his voice sounded “slurpy”,which she agreed meant that she considered his speech slurred.[13] Mr. Lasota spent the day prior to the killing with Ms. Liard. Shetestified that they went to the liquor store prior to meeting Ms. Firgin-Hewie. Monika Lasota saw them on the street and drove them to thestore. Monika Lasota was not asked and did not comment that her brotherseemed intoxicated at this time. Then Mr. Lasota and Ms. Liard purchasedalcohol, likely two forty-ounce bottles of beer, and then walked back to the“tunnel”. There they met Ms. Firgin-Hewie, spoke with her for perhaps fiveminutes, and then walked back to the Lasota house. There is no evidencethat Mr. Lasota had any difficulty in walking or talking during this period, orwas in anything other than in control of his faculties. Mr. Lasota then(OSJI)(CRIM) - 37 -
  38. 38. asked Ms. Liard to go downstairs and have a cigarette with his sister.There is no evidence that he had difficulty in making this request.[14] Ms. Firgin-Hewie was killed shortly afterwards, perhaps 5-12minutes or so after Ms. Liard went downstairs and outside to speak withMonika Lasota. There is no evidence that Mr. Lasota consumedintoxicants in this brief period before Ms. Firgin-Hewie was killed.[15] Mr. Lasota had the presence of mind to block the door to hisbedroom, either prior to his killing Ms. Firgin-Hewie, or after he hadattacked her. When Ms. Liard and Monika Lasota came to his bedroomdoor, on their testimony, he was agitated, but he was able to communicateclearly that he would come out in a short period of time.[16] Mr. Lasota did come out of his bedroom and went outside, as hesaid he would. There is no evidence that he had difficulty communicatingwith Ms. Liard, or with Monika Lasota and Artur Dziura immediately afterhe came out of the house. Monika and Artur then left the house, and Mr.Lasota evidently commenced cleaning up his room. On Ms. Liard’sevidence, the entire extensive clean-up in Mr. Lasota’s room was done byMr. Lasota. Ms. Liard cleaned his bloody clothing in the bathroom, but therest of the work was all done by Mr. Lasota. Based on the blood spatterevidence of Constable Kastelic, there were extensive surfaces cleaned byMr. Lasota. It appears that he turned his mattress over to hide the largeblood stain on it. It appears that he reversed the drapes hanging in hisroom, so that the spots of blood would not show so much. Mr. Lasota’sclean up was so thorough and effective that Teresa Lasota did not seeanything amiss in the room when she entered it the first time. The first-responder police officers, likewise, did not see evidence of a struggle in theroom when they first entered and went through the house. It was not untilpolice went over the room closely and in detail that they saw the smalldrops of blood that escaped Mr. Lasota’s efforts to clean his room. Basedon all of these circumstances, and the absence of any positive evidence ofMr. Lasota being so intoxicated that he could not form the intent to murder,I am instructing you that the intoxication defence is not available to Mr.Lasota on the facts before you.[17] You have heard evidence that Mr. Lasota was fearful in theaftermath of the knife attack upon him, and the threats he believed thathad been made against him. However, there is no evidence that he wasfearful of Ms. Firgin-Hewie, or that he was fearful being alone with her inhis bedroom.(OSJI)(CRIM) - 38 -
  39. 39. [18] You have seen the photographs of Ms. Fergin-Hewie’s body taken atthe autopsy. It has been suggested to you that the pattern of injuriesreflects rage and/or a frenzied attack. This seems a reasonable inference.Mr. Grill argues that you may infer that Mr. Lasota was enraged at the timeof the killing, based on the nature of his attack. This conclusion seemsavailable to you on the evidence.[19] Mr. Grill concedes that neither fear nor rage, by themselves, are abasis on which you could conclude, in this case, that Mr. Lasota may havelacked the intent for murder when he killed Ms. Firgin Hewie. I agree.[20] Mr. Grill argues that when you combine the evidence of intoxication,Mr. Lasota’s fear because of the threats and knife attack against him froma few days earlier, and his evident rage at the time opf the killing, youmight have a reasonable doubt that he had the intent required for you tofind him guilty of murder.[21] This is a question for you to decide. But I am permitted to commentupon it. First, the evidence of intoxication seems weak. Aside from thetime Mr. Lasota was alone in his bedroom with Ms. Firgin-Hewie, heappears to have been in control of his faculties and capable ofunderstanding and intending the consequences of his actions. I wouldsuggest to you that a person does not suddenly become severelyintoxicated, and then just as suddenly, cease to be severely intoxicated afew minutes later. Second, although there is evidence that Mr. Lasota wasgenerally fearful, there is no evidence at all that he was feeling fear whilehe was in his bedroom with Ms. Firgin-Hewie. With respect, I wouldsuggest there is no reasonable basis on which you can infer that he wasfearful at that time. You are not entitled to make up evidence or speculatein the absence of evidence. It is for you to say, but I would suggest thatMr. Lasota’s understandable and rational fear as a result of the threats andprevious attack do not provide a basis to conclude that his fear suddenlyovercame him to the point that he was irrational and unable to controlhimself. There is no evidence at all that anything did or could havehappened in Mr. Lasota’s bedroom that did or could have triggered such aresponse, aside, of course, from the killing itself. And third, anger, evenrage, does not generally negate intent. You would have to be satisfied thatMr. Lasota was so overcome by rage that he could not form the intent todo the things he did. Again, there is no evidence at all that anything of thesort took place in Mr. Lasota’s bedroom. With respect, using the fact of thekilling to suggest that Mr. Lasota may not have intended to kill seems tome circular and unpersuasive: the logic, it seems to me, is that because hekilled Mr. Firgin-Hewie, and did so in the manner that you see in the(OSJI)(CRIM) - 39 -
  40. 40. autopsy photographs, you may therefore infer that he may not haveintended to do what he did.[18] Given all of the circumstances, I suggest to you that it is clear thatMr. Lasota intended to kill Ms. Firgin-Hewie. Stabbing and slashingsomeone repeatedly with a bladed instrument such as a knife in the chestand throat areas would, I suggest, provide a comparable basis for inferringintent as the example I provided at the outset of this section: a loaded gunfired at someone’s head. However, it is for you to say whether you aresatisfied beyond a reasonable doubt that the Crown has proved that Mr.Lasota had the intent for murder.[19] If you are satisfied beyond a reasonable doubt that Mr. Lasota killedMs. Firgin-Hewie, that he did so unlawfully, and that he had the intent formurder, then you should proceed to the next question. If you are satisfiedbeyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie, andthat he did so unlawfully, but you are not satisfied beyond a reasonabledoubt that he had the intent for murder, then you should find him not guiltyof first degree murder, but guilty of the lesser and included offence ofmanslaughter.Question Four: Is This First Degree Murder?[1] You will consider question number four only if you are satisfiedbeyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie, that hedid so illegally, and that he had the intent for murder when he did so. Inthat event you will ask yourself if this was first degree murder. To answerthat question, you will consider two alternative questions: (a) Was the murder planned and deliberate; or (b) Was the murder committed as part of a series of events that included Mr. Lasota illegally confining Ms. Fergin-Hewie?You will note that I have separated the two questions with the word “or”.The Crown need not prove that the answer to both question (a) andquestion (b) beyond a reasonable doubt. The Crown need only satisfy youbeyond a reasonable doubt that either question (a) or question (b) is yes toprove first degree murder against Mr. Lasota.Question 4(a): Was the Murder Planned and Deliberate?[1] “Planned” means that the scheme or plan to kill Ms. Firgin-Hewiewas previously formulated.(OSJI)(CRIM) - 40 -
  41. 41. [2] “Deliberate” means that the killing was considered, and not hasty orrash.[3] To establish first degree murder on this basis, the Crown mustsatisfy you beyond a reasonable doubt that the murder of Ms. Firgin-Hewiewas both “planned” and “deliberate”. “Planned” without “deliberate” is notenough. Likewise, “deliberate”, without “planned”, is not enough.[4] The Crown suggests two possible motives that suggest this was aplanned and deliberate murder. Mr. McGuire did not use these shortdescriptors for these theories, but I will: (1) the “thrill kill”; and (2) killing for revenge.[5] The two theories of the Crown are not different theories of planningand deliberation. Rather, they are alleged motives.[6] The Crown does not have to prove motive. Motive is not an elementof the offence of first degree murder. On the other hand, the Crown maylead evidence of motive, which it has done in this case. To the extent thatyou conclude that there is evidence of motive, you may consider that ascircumstantial evidence that may bear on your determination of whetherthe Crown has satisfied you beyond a reasonable doubt that the murderwas planned and deliberate.[7] I start with the evidence, both for and against, in respect to planningand deliberation. Then I return to the issue of motive.Evidence of Planning and Deliberation[8] The following is evidence that you could consider to support a theoryof a planned and deliberate killing: (i) Ms. Liard phoned and asked Ms. Firgin-Hewie to join her and Mr. Lasota. On her own evidence, she says that this was for the purpose of discussing testifying at the anticipated trial of Gary Macdonald, a matter that would have been of interest to Ms. Firgin-Hewie. Thus, the Crown argues, Ms. Liard persuaded Ms. Firgin-Hewie to leave Ms. Miller’s to join Mr. Lasota and Ms. Liard. On Ms. Liard’s evidence, this call was placed on her cell phone when she was with Mr. Lasota.(OSJI)(CRIM) - 41 -
  42. 42. (ii) Ms. Racheal Miller testified that Ms. Firgin-Hewie told her that Ms. Liard had told her not to tell anyone where she was going or who she was meeting. Ms. Liard denies that this was said. (iii) After talking briefly at the tunnel, Ms. Liard or Mr. Lasota suggested that the three of them go back to the Lasota house to talk. Whether Mr. Lasota said this or Ms. Liard said this, Mr. Lasota was present when it was said. (iv) When they reached the Lasota house, the three of them went directly to Mr. Lasota’s bedroom. In this way, the Crown argues, Ms. Firgin-Hewie was persuaded to go to a private area in the house. (v) As soon as they reached Mr. Lasota’s bedroom, Mr. Lasota asked Ms. Liard to leave, to go downstairs, to invite Monika Lasota outside for a cigarette to discuss Ms. Lasota’s fears for her brother arising from the knife attack on him a few days earlier. In this way, the Crown argues, Monika Lasota was removed from the house to a place where she would not hear what was going on in Mr. Lasota’s bedroom. The Crown suggests that Ms. Liard did not include Mr. Dziura in the invitation to go outside because it would have sounded too suspicious since Mr. Dziura was asleep: it would make no sense to awaken a sleeping person to ask them if they wanted to have a cigarette. (vi) While Ms. Liard and Ms. Lasota were outside smoking, Mr. Dziura came outside in his shorts and a t-shirt. He was concerned about a commotion – what he described as “loud banging noises” coming from upstairs in the unit in which Mr. Lasota lived with his mother Teresa. Mr. Dziura went back in the house, heard more of these noises, and came back outside, greatly concerned. He went to the garage and got a sword. He told Ms. Liard and Ms. Lasota to go inside and find out what was going on to make all that commotion. Mr. Dziura testified that he was concerned that someone might be trying to break into the house again, which concerned him particularly because of the knife attack on Mr. Lasota a few days earlier. Ms. Liard, Monika Lasota, and Mr. Dziura all agree on the essentials of these events, as I have described them. The Crown argues that Ms. Liard told Mr. Dziura not to worry because Mr. Lasota(OSJI)(CRIM) - 42 -