R. v. Michelle Liard and Rafal Lasota

Final Jury Charge – March 28-29, 2012The Honourable Justice David L. Corbett

DUTIES OF JUDGE AND JURYINTRODUCTION

[1] Tomorrow you will leave this courtroom to start discussing this case in your jury room. It is time for me to tell you about the law you must follow in making your decision.

[2] When we started this case, I told you about rules of law that apply in general to this case. During the evidence I told you about other rules of law 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 the jury room, if you wish to consult them. You do not have to do so; that is up to you. I tell you this at the outset so that you will know as you are listening 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 and pay less attention to others. All are equally important.

[5] First, I will explain your duties as jurors and tell you about the general rules of law that apply to all jury cases.

[6] Second, I will advise you of the specific rules of law that govern this case and the evidence that you have heard.

[7] Third, I will explain what Crown counsel must prove beyond a reasonable doubt to establish Ms. Liard’s and/or Mr. Lasota’s guilt and tell you about the issues that arise on the evidence you have heard. I will discuss the issues that you need to decide and review briefly the evidence that relates to those issues. You must keep in mind, however, that you should rely on what you remember the evidence was, not what counsel or I say it was.

[8] Fourth, I will comment on the positions that the Crown and defence counsel have put forward in their closing addresses.

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[9] And fifth, I will explain what verdicts you may return and how you should approach your discussion of the case in your jury room.

[10] Before I start to explain your duties as jurors, I wish to make three preliminary points. First, as I told you earlier, it is my practice to come into the 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 make them. There is no innuendo or hidden meaning. I strive to say exactly what I mean. Do not try to read between the lines: if I mean to make a suggestion 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 to permit humour in the courtroom. Some regard it as inappropriate, given the importance and solemnity of judicial proceedings. Others consider that occasional moments of levity can provide a needed break from the tension that inevitably develops in a significant criminal case. You might well conclude that I am in the latter group. I am sure you have not misunderstood, let me be clear: this case is obviously a very serious matter, for all concerned, and the few moments of levity I have permitted during 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 one and you are the other.

[2] As judge of the law, it is my duty to preside over the trial. I decide what evidence the law permits you to hear and consider and what procedure we follow in the case. And it is my job to explain to you the rules 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 this case. You make that decision from all the evidence given during the trial. You may also consider the absence of evidence or the failure of any witness to testify.

[4] There will be no more evidence.

[5] You are entitled to come to common sense conclusions based on the evidence that you accept. You must not speculate, however, about what evidence there might have been or permit yourselves to guess or make up theories without evidence to support them.

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[6] The evidence does not have to answer every question raised in this case. It would be an unusual case in which a jury could say: “We now know everything there is to know about this case”. You only have to decide those matters that are essential for you to say whether a crime has been 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 this case. Even if you disagree with or do not understand the reasons for the law, you are required to follow what I say about it. You are not allowed to pick and choose among my instructions on the law. You must not consult other sources or substitute your own views. This principle is not because I think I am always right. It is because we live under the Rule of Law in this country, and the Crown, defence, everyone involved in this case, and the public, all are entitled to have this case decided in accordance with the law of the land, the same law that applies to everyone.

[9] If I make a mistake about the law, justice can still be done in this case. The court reporter records everything I say. The Court of Appeal can correct my mistakes. But justice will not be done if you wrongly apply the law. Your decisions are secret. You do not give reasons. No one keeps a record of your discussions for the Court of Appeal to review. As a result, it is important that you accept the law from me and follow it without question.

[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 to the facts that you find to reach your verdict. That is how you decide the case.

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 places involved or mentioned in it. Those reports, and any other information about the case from outside the courtroom, are not evidence.

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[2] It would not be fair to decide this case on the basis of any information not introduced or tested by the parties in court and made part of the evidence at trial. You, not the media, or anyone else, are the only judges 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, often based on what was heard in court that day. Those reports do not tell everything that happened in court. A transcript of everything said in court would take as much as 150 typewritten pages, per day. Obviously the media reports only some, not all of the evidence. And media reports may reflect 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, have been present in court to see all of the evidence, as it has been presented in court. You, not the media, are required to withhold judgment until you have heard all of the evidence, counsel’s closing arguments, and my final instructions. You, not the media, are in the best position to judge this case. And you, not the media, are bound by your oath or affirmation to come to your decision, not on the basis of sympathy, prejudice, or partiality, 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 without sympathy, prejudice or fear. You must not be influenced by public opinion about this case, or these kinds of cases in general. We expect and are entitled to your impartial assessment of the evidence in this particular case.

[2] I place particular emphasis on this instruction in this case. This is a terrible case. The victim, Aleksandra Firgan-Hewie, was killed in a most horrible and brutal manner. You surely have sympathy for her, and for her family and friends. And as caring members of the community you are no doubt angry about what happened to her. Your task is to set your emotions aside and to look dispassionately at the evidence. What does it prove? What does it not prove? Of what things are you sure? Of what things are you not sure? If you approach your task calmly and dispassionately, then I am confident you will reach your decision on the basis of the evidence, reason and the law, and not your emotions. I will

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comment again on this point when we review particular aspects of the evidence.

[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 evidence you have seen and heard, I feel it necessary to comment on this point several times. Do not read anything between the lines in these instructions. By making these comments, I am not suggesting that you should 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 and direct a way as I can. When I emphasize the importance of reviewing the evidence dispassionately, that is precisely what I mean: set your emotions aside and consider what the evidence may establish for you, and what it does not establish for you, without regard to the emotions it may stir within you.

IRRELEVANCE OF PUNISHMENT

[1] As I told you at the outset of the trial, punishment has no place in your 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 what punishment is appropriate.

JURORS’ APPROACH TO TASK

[1] When you go to your jury room to begin your discussions, it is important that no one starts off by telling everybody else that s/he has already made up his or her mind and will not change it, whatever anyone else 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 others have to say. Try to reach an agreement.

[3] Each of you has to decide the case for yourself. You should only do so, however, after you have considered the evidence with your fellow jurors and applied the law that I have explained to you.

[4] During your discussions, do not hesitate to re-consider your own opinions. Change your mind, if you find that you are wrong. Do not give up your honest beliefs, however, just because others think differently. Do not change your mind only to get the case over with.

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[5] Your only responsibility is to determine whether Crown counsel has proven Ms. Liard and/or Mr. Lasota guilty of an offence beyond a reasonable doubt. Your contribution to the administration of criminal justice 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 help you remember what any witness said in testifying here. You may take your notes 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 or the lawyers make are evidence. The only purpose for which you may use your notes during your deliberations is to help you remember what a witness 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 equal say. We depend on the memory and judgment of each one of you to decide this case. Do not simply defer to the person who is or seems to be the best note-taker.

PROCEDURE FOR QUESTIONS

[1] If, during your discussions, you have any questions, please put them in writing and give them to the court constable who will be outside the door of your jury room. The constable will bring the questions to me. I will discuss them with the lawyers. You will then be brought back into the courtroom. 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 of the evidence, and to relate that to the issues that are yours to decide. In doing that, I may overlook evidence you think important, or mention evidence you think is insignificant. I may make a mistake about what a witness said while testifying.

[2] My references to the evidence are only to help you remember it, and to show you how it relates to the issues in this case. If my memory of the

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evidence is different from yours, it’s yours that counts. You find the facts and base your decision on your memory of the evidence, not mine, and not that of counsel.

[3] Our law also permits me to comment or express opinions about issues of fact. When I do that, however, you do not have to reach the same 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 you agree on your decision. A verdict, whether of guilty or not guilty of an offence, 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 a verdict. Consult with one another. Express your own views. Listen to the views of others. Discuss your differences with an open mind. Try your best to decide this case.

[4] Everyone should give fair, impartial and equal consideration to all the evidence. Your goal should be to reach an agreement that matches the individual judgment of each juror. You must not agree, however, only for the purpose of getting the case over with.

[5] When you reach a unanimous verdict, your foreperson should record it on your verdict sheet and notify the court constable. We will come back into court to receive it. Your foreperson will tell us your verdict in the courtroom.

[6] If you cannot reach a unanimous verdict, you should notify the court constable in writing. The constable will bring me your message. I will discuss what has happened with Crown and defence counsel. We will then 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 to agree among yourselves on your reasons. You must be unanimous about your decision on each charge to return a verdict, but each of you may come to that decision by different paths of reasoning.

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FURTHER INSTRUCTIONS

[1] At the end of these instructions, the lawyers may persuade me there is something else I should tell you. I may have made a mistake, or left something out. Perhaps what I have said could be stated more clearly to help you understand it better. Unless I tell you otherwise, do not consider any further instructions I may give you to be any more or less important than anything else I have said about the law. All the legal instructions, whenever they may be given, are part of the same package.

GENERAL PRINCIPLESPRESUMPTION 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 reasonable doubt.

[2] The indictment on which you are trying Michelle Liard and Rafal Lasota is only a formal accusation or charge. It tells them, as it tells you, what specific crime Crown counsel alleges that they committed. The charges are not evidence. They are not proof of guilt.

[3] The presumption of innocence means that Ms. Liard and Mr. Lasota started the trial as innocent people. The presumption stays with them throughout the case, including your deliberations at the end of the trial. It is only defeated if and when Crown counsel has satisfied you beyond a reasonable 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. Lasota pleaded not guilty to first degree murder, but guilty of the lesser and included offence of manslaughter. The Crown did not accept Mr. Lasota’s plea of guilty to manslaughter. This means that the Crown has to prove Mr. Lasota’s guilt of an offence beyond a reasonable doubt: the manslaughter 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 is presumed innocent of all charges, unless and until Crown counsel has satisfied you beyond a reasonable doubt of his guilt. I will return to this point when I review the law of murder and manslaughter with you in a few minutes.

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[5] As I have noted, Ms. Liard pleaded not guilty to the charge of first degree murder. You may have noticed that during her interview with police, Ms. Liard was cautioned for the offence of being an accessory after-the-fact to murder. Being an accessory after-the-fact to murder is not an included offence in the crime of first degree murder. Therefore, it was not 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. Liard was, 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 prove anything in this case. In particular, neither has to prove that s/he is innocent of the crime charged.

[2] From start to finish, it is Crown counsel who must prove guilt beyond a reasonable doubt, not Ms. Liard or Mr. Lasota who must prove her/his innocence.

REASONABLE DOUBT

[1] The phrase, “beyond a reasonable doubt”, is a very important part of our criminal justice system.

[2] A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[3] When we say that something is probably true, we mean that it is more likely than not to be true.

[4] It is not enough for you to believe that Ms. Liard is probably or likely guilty. In those circumstances, you must find her not guilty, because Crown counsel would have failed to satisfy you of her guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond 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

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him not guilty, because Crown counsel would have failed to satisfy you of his guilty beyond a reasonable doubt.

[6] You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do 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 of guilt beyond a reasonable doubt is much closer to absolute certainty than it is to proof of probable guilt.

[7] If, at the end of the case, after considering all the evidence, you are sure 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 of evidence, you are not sure that Ms. Liard committed an offence, you should find her not guilty of it.

[9] Similarly with Mr. Lasota. If, at the end of the case, based on all the evidence, you are sure that Mr. Lasota committed an offence, you should find him guilty of it.

[10] If, at the end of the case, based on all the evidence, or the lack of evidence, you are not sure that Mr. Lasota committed an offence, you should find him not guilty of it.

ASSESSMENT OF EVIDENCE

[1] To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or how little you will believe and rely upon the testimony of any witness. You may believe some of it; you may believe none 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 same common sense that you use every day in deciding whether people know what they are talking about, and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’ testimony or how much to rely on it in deciding this case. But here are some questions you might keep in mind during your discussions.

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[3] Did the witness seem honest? Is there any reason why the witness would not be telling the truth?

[4] Did the witness have any reason to give evidence that is more favourable to one side than to the other?

[5] Did the witness seem to have a good memory? Does the witness have any reason to remember the things about which he testified? Did any inability or difficulty that the witness had in remembering events seem genuine, or did it seem made up as an excuse to avoid answering questions?

[6] Did the witness’ testimony seem reasonable and consistent as s/he gave it? Is it similar to or different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion?

[7] Do any inconsistencies in the witness’ evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because s/he failed to mention something? Is there any explanation for it? Does the explanation make sense?

[8] What was the witness’ manner when s/he testified? How did s/he appear to you? Do not jump to conclusions, however, based entirely on how a witness has testified. Looks can be deceiving. Witnesses come from different backgrounds. They have different abilities, values and life experiences. There are simply too many variables to make the manner in which 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 mind when you go to your jury room to make your decision. These factors may help you decide how much or little you will believe of and rely upon a witness’ evidence. You may consider other factors as well.

NUMBERS OF WITNESSES

[1] How much or little you rely on the evidence of the witnesses does not necessarily depend on the number of witnesses who testify, one way or another.

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[2] Your duty is to consider all the evidence. You may decide that the testimony of fewer witnesses is more reliable than the evidence of a larger number. 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. Do not decide the case simply by counting witnesses.

EVIDENCE DEFINED

[1] To decide what the facts are in this case, you must consider only the evidence that you saw and heard in the courtroom. Consider all the evidence in reaching your decision.

[2] The evidence includes what each witness said in answering the questions the lawyers asked. The questions themselves are not evidence unless the witness agreed that what was asked was correct. The answers of the witness are his evidence.

[3] There were exhibits numbered during the trial. They are part of the evidence. You may rely upon them, like any other evidence, as much or as little as you see fit when you decide this case. They will go to the jury room with you, where you may examine them as you see fit. There are, however, three exceptions. I am not sending the following exhibits to the jury room with you:

(i) The first CD-ROM containing an excerpt of the police statement of Artur Dziura relating to his evidence concerning whether Ms. Liard blocked his 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 the first CD-ROM of his evidence); and

(iii) The three CD-ROMs containing the edited statement of Michelle Liard’s statement to police.

I am sending with you the CD-ROM of Aleksandra Firgan-Hewie’s statement to police.

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[4] The reason why I am not sending items (i), (ii) and (iii) to the jury room with you is that they form only a part of the evidence of those witnesses. They should not be given more prominent treatment than the testimony those witnesses gave in court. I will be providing you with more detailed instructions about this evidence later in these instructions.

[5] You may, during your deliberations, find that you wish to have a portion of a witness’ evidence replayed for you. If that happens, you will send me a note, indicating what you wish to have replayed for you. It is my responsibility, in consultation with counsel, to ensure that all aspects of a witness’ testimony on a point are replayed for you, including his/her evidence during examination in chief, during cross-examination, and during the statements that were played for you in court, where appropriate. In other words, if you wish to hear the evidence on a point again, it is my responsibility to make sure you hear all the pertinent evidence on that point. Since the CD-ROMs of Mr. Dziura’s and Ms. Liard’s statements are only a part of their evidence, if you wish to have any portion of them replayed, you may hear them, together with the pertinent portions of their evidence in court. To do so, you should send a note to me setting out your request.

[6] I am sending the CD-ROM of Ms. Firgan-Hewie’s statement with you, because it is a complete record of her statement to the police. You may recall that Ms. Liard testified about the text message that she sent to Ms. 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 evidence that 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 weighing how 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 the parties are facts in this trial. There are agreed facts. They are set out in writing in Exhibits that were read out to you when they were introduced into evidence. Since the parties have agreed to these facts, no evidence is required to prove them. You must take what the parties they have agreed on as facts in this case.

[9] As I explained to you earlier, there are some things that are not evidence. You must not consider or rely upon them to decide this case.

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[7] The charges that you heard read out when we started this case are not evidence. What the lawyers and I said when we spoke to you during the trial, including what I am saying to you now, is not evidence. In this trial, 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 as much or as little as the other in deciding this case.

[2] Sometimes witnesses tell us what they personally saw or heard. For example, a witness might say that he/she saw it raining outside. That is called direct evidence.

[3] Often, however, witnesses say things from which you are asked to draw certain conclusions. For example, a witness might say that he or she had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believed that witness, you might conclude that it was raining outside, even though the evidence was indirect. Indirect evidence is sometimes called circumstantial evidence.

[4] In making your decision, both kinds of evidence count. The law treats both equally. Neither is necessarily better or worse than the other. In each case, your job is to decide what conclusions you will reach based upon the evidence as a whole, both direct and circumstantial. To make your decision, use your common sense and experience.

HEARSAY

[1] I provided you with instructions on the law of hearsay evidence during the trial. Those instructions still apply, as do all of the instructions I provided to you during the trial. I summarize my instructions on hearsay now.

[2] Witnesses are asked to tell you what they themselves know: for example, what they heard and saw. They are not in court to tell us what someone else knows. If what someone else knows is to be put in evidence, the proper way to do that is to call that other person as a witness.

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[3] When a witness tells us what someone else has told her, we often call that hearsay. Ordinarily, hearsay evidence is not admissible, since it is one witness telling us what someone else knows, rather than what s/he knows. On the other hand, sometimes you need to hear what someone else told a witness in order to understand that witness’ evidence fully.

[4] There are exceptions to the hearsay principle. I will explain the relevant ones to you shortly. There are also some occasions when something 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 exceptions to it that apply in this case.

The Hearsay Principle

[5] “Hearsay” is where a witness testifies to an out-of-court statement made by someone else for the purpose of proving the truth of that statement.

[6] “Hearsay” is not restricted to witnesses who tell us what they have been told. Documents may also be hearsay. For example, in Aleksandra Firgan-Hewie’s diary, she sometimes records things that other people have told her. Those statements, recorded in the diary, are no less hearsay for being written down. So, to be clear, “hearsay” includes “hear-write”.

[6] Sometimes, however, an out-of-court statement is relevant, not for the 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 told by her daughter Monika, and Monika’s boyfriend Artur Dziura. What Monika and Artur said to Teresa was hearsay, coming into evidence through Teresa. However, this evidence was significant for another purpose: on the basis of what she had been told, Teresa Lasota did various things. She questioned her son Rafal. And after she saw that furniture had been moved in her bedroom, she investigated in the back yard. Then she questioned Rafal again. She had to tell you some of what she had been told by Monika and Artur in order for you to understand why she did what she did. And that was the purpose of her telling you what she had been told.

[7] The same thing is true with hearsay that is written down, such as the hearsay in Ms. Firgan-Hewie’s diary. You may consider those statements to understand what Ms. Firgan-Hewie was thinking, but you may not consider them to prove that what was said to her was, in fact true. One concrete example may clarify this distinction for you. In her diary, Ms.

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Firgan-Hewie writes that she has been told by someone else that Gary Macdonald’s mother wants to beat her up. You may consider this as evidence that Ms. Firgan-Hewie was, in fact, told this. If you accept that she was, you may consider that this could have had some bearing on how Ms. Firgan-Hewie was feeling about having made the police statement about Gary Macdonald. You may not consider this as evidence that Gary Macdonald’s mother actually made this threat to someone. That would be using the statement in the diary for a hearsay purpose, since Ms. Firgan-Hewie does not have personal knowledge about whether the statement was ever made by Mr. Macdonald’s mother. There is no evidence in this trial that Gary Macdonald’s mother ever made this threat, apart from the entry in Ms. Firgan-Hewie’s diary. And since you may not use that entry for a hearsay purpose, you would not have any evidence on which you could conclude that Gary Macdonald’s mother ever made the threat. As far as you could go is to conclude that someone told Ms. Firgan-Hewie that the threat had been made. This distinction is perhaps clear to you using this example, since it does not matter, for the purposes of this trial, whether Gary Macdonald’s mother ever made such a threat. It may matter that Ms. Firgan-Hewie had been told that the threat had been made, for the reasons I have just described to you.

[8] There are two primary exceptions to the hearsay principle that apply in this case. First, a hearsay statement from an accused person may be put into evidence against that accused person. Second, there is a “principled exception” to the hearsay rule, where a witness is not available to testify, and her out-of-court statement is made in circumstances that could lead to a conclusion that the statement was reliable. I will start with examples of the “principled exception”, and then move to examples of hearsay statements made by Ms. Liard and Mr. Lasota.

Hearsay Statements of Aleksandra Firgan-Hewie

[8] You heard several witnesses testify about things said by Aleksandra Firgan-Hewie, notably Racheal Miller and Kevin Martins. You also saw Ms. Firgan-Hewie’s diary, which is a hearsay document. And you saw the statement given by Ms. Firgan-Hewie to police in connection with the robbery said to have been committed by Mr. Macdonald. This statement, too, is hearsay. It was said by Ms. Firgan-Hewie, but it was said outside the courtroom, and counsel did not have an opportunity to cross-examine her about it, so it is hearsay.

[9] Obviously, Ms. Firgan-Hewie is not available to testify.

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[10] I have permitted these statements made by Ms. Firgan-Hewie into evidence. It is for you to consider them and to decide how much or how little weight to place on any of them. Like the evidence of the witnesses you heard in court, you may believe some of them. You may believe none of them. You may believe all of them. It is up to you.

[11] Recall, as you assess these statements, that counsel have not had a chance to cross-examine on these statements. These statements were not made under oath. Consider the circumstances in which the statements were made, and what was said in deciding how much or how little to believe and rely upon them.

[12] In respect to the diary, I suggest you approach it in the following way, in order to determine how much or how little to rely on anything written in the diary. First, consider the diary as a whole. It is a personal journal, written by a 13 year old girl. You can consider how often she wrote in her diary. Consider what she wrote about, and what she didn’t write about. For example, there is very little in her diary about what she was doing in school. It is for you to say, but it seems to me that the diary is chiefly concerned with recording Ms. Firgan-Hewie’s deepest personal thoughts about her friends, her social activities, and what she wants for herself.

[13] Again, though it is for you to say, it appears to me the diary was written with the intention that it be kept private. There is no evidence that Ms. Firgan-Hewie ever showed the diary to anyone else. The entries in it are deeply personal. You may consider that, as a result, you are prepared to 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 in which it was made. Ms. Firgan-Hewie was speaking with police about a serious matter, an alleged robbery. She also mentioned the robbery at her own house, and she spoke of her belief that Mr. Macdonald and Donovan Rodrigues had been stealing meat from the Dominion store.

[15] In respect to Ms. Firgan-Hewie’s statements to Racheal Miller and Kevin Martins, you should consider that they were made in circumstances that were less private and less serious, than the diary or the police statement. You may also consider the nature of what she has saying, and the fact that her statements may be corroborated by other evidence. For example, Ms. Miller says that Ms. Firgan-Hewie told her that she was leaving to meet Ms. Liard and Mr. Lasota. You know that Ms. Liard has confirmed that this call took place, and that Ms. Firgan-Hewie did go to

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meet with Ms. Liard and Mr. Lasota. I address the rest of what Ms. Miller reported about this conversation later in these instructions.

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Out of Court Statements by Ms. Liard and Mr. Lasota

[1] Out of court statements by an accused person are admissible against her/him. Such statements are not admissible against their co-accused. Thus, things said by Ms. Liard to other people are admissible into 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, you have to decide whether they actually made those statements. For Ms. Liard, for example, you will have to decide whether she actually said the things reported by Mr. Dziura and Monika Lasota before you can use them against Ms. Liard. For Mr. Lasota, for example, you will have to decide whether he actually told his mother he had killed Ms. Firgan-Hewie before you can use that statement against him.

[3] In deciding whether Ms. Liard or Mr. Lasota actually made a particular statement, use your common sense. Take into account people’s condition at the time of the conversation. Bear in mind anything else that may make it seem more or less likely that the statement was made as it was described to you.

[4] Unless you decide that Ms. Liard made a particular statement, you should not use it against her. Likewise, unless you decide that Mr. Lasota made a particular statement, you should not use it against him.

[5] Consider each alleged statement separately. Using the examples I have just described, you may conclude that Teresa Lasota’s evidence of her son’s confession to her is reliable and should be believed. Teresa Lasota’s evidence on this point was not challenged, she had no reason to lie 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 of conversations with Ms. Liard provided to you by Mr. Dziura and Monika Lasota. Parts of their evidence were challenged vigorously. They were frightened and agitated at the time. I will comment further on this evidence later. My point, here, is that you must consider each statement separately when deciding if you accept it.

[6] There are two exceptions to this principle that may apply in this case. First, where a statement is made by one co-accused in the presence of another co-accused, you may, depending on the circumstances, take it into account for the co-accused. For example, Ms.

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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 having made this statement (according to Mr. Jacobs’ evidence). You may consider that Mr. Lasota adopted Ms. Liard’s statement. You may consider 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 to say.

[7] The second exception is a rather complicated legal formulation that permits you, in certain circumstances, to take the statement of one co-conspirator into account against another co-conspirator. Where the Crown alleges, as it does in this case, that two people committed a planned and deliberate murder, the Crown is alleging that they conspired to commit murder and then committed murder. If you conclude, from the evidence of his own words and conduct, that Mr. Lasota was probably a member of a conspiracy with Ms. Liard, you then go on to consider whether the words and conduct of Ms. Liard said and did while the conspiracy was ongoing, to further its purpose. Consideration of Ms. Liards words and conduct may then be used by you to decide whether you are satisfied beyond a reasonable doubt that Mr. Lasota was a member of the conspiracy.

[8] Similarly with Ms. Liard: if you conclude that Ms. Liard was probably a member of the conspiracy with Mr. Lasota, you may then go on to consider the words and conduct of Mr. Lasota in deciding whether you are satisfied beyond a reasonable doubt that Ms. Liard was a member of the conspiracy.

[9] In this case, since the conspiracy is alleged to be between two people, the practical application of this principle is more straightforward than it sounds. If the evidence against Mr. Lasota satisfies you that the killing was probably planned between him and Ms. Liard, then you may consider what Ms. Liard said and did in deciding whether the Crown has proved Mr. Lasota’s guilt beyond a reasonable doubt. Similarly, if the evidence against Ms. Liard satisfies you that she planned to kill Ms. Firgan-Hewie with Mr. Lasota, on a balance of probabilities, then you may consider what Mr. Lasota said and did in deciding whether the Crown has proved Ms. Liard’s guilt beyond a reasonable doubt.

[10] In practical terms, this instruction only affects a limited portion of the evidence: notably, Ms. Liard’s conduct from the time she was outside smoking with Monika Lasota to the time that Mr. Lasota emerged from the house after he had killed Ms. Firgan-Hewie. The other things said and

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done by Ms. Liard in this case by Ms. Liard appear to have been said and done in Mr. Lasota’s presence, and so you may take them into account against him, based on your assessment of the circumstances. You may consider that the only thing said or done by Mr. Lasota that seems to fit into this category is his killing of Ms. Firgan-Hewie. You may take this fact into account against Ms. Liard if you are satisfied that she probably planned with Mr. Lasota to kill Ms. Firgan-Hewie.

[11] Finally, note that the threshold for considering the words and conduct of a co-conspirator is “probably”. This is only the threshold for considering the evidence of what one alleged co-conspirator said and did as evidence against the other alleged co-conspirator. It is a standard to apply to determine what evidence you may consider against each. It does not reduce the burden on the Crown to prove each essential element of the charges 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 any other witness. You may believe some, none or all of what she says. You consider her testimony by applying the same tests and considering the same factors as with any other witness. Like any other witness, you decide how much or little you will believe of and rely upon her testimony in deciding this case.

[3] Subject to any specific contrary instructions that I may give, you may consider the testimony of Ms. Liard to help you decide the case against her and the case against Mr. Lasota. You do not consider that testimony only to help you decide the case against Ms. Liard.

[4] As you know, Ms. Liard’s statement to police was played to you as part of her testimony. I will instruct you about how you may use this statement in a few minutes.

PRIOR STATEMENTS

[1] During the trial, I gave you extensive instructions about the use that may be made of prior statements made by persons who testified before you. I now synthesize these instructions for you.

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[2] As I told you at the outset of this trial, the evidence is what the witnesses say in court and the exhibits that have been filed. Questions asked by the lawyers are not evidence, unless the witness agrees with what was asked.

[3] Often a witness has said things in the past about the events to which s/he testifies. These are called prior statements. They are statements made prior to coming to court to testify. These statements may be made right 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 such statements 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 another event, or in court at an earlier stage in this proceeding. For example, you heard 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 in a serious criminal prosecution, where some of the witnesses come to court and testify under oath.

[6] Sometimes a witness may make several prior statements. For example, a witness may speak to police more than once, and then that witness may testify at the preliminary inquiry, all before testifying before the jury at the trial.

[7] In most circumstances, a witness is not permitted to testify about previous statements she has given that are consistent with her testimony at trial. This is because, generally, the fact that a witness has said something on previous occasion does not make what she is saying any more or any less true. Thus, you may recall, I told you to disregard evidence of Teresa Lasota when she was asked if she had given police a consistent statement in December 2008 to a portion of her evidence given at trial.

[8] It is for this reason that you have not heard evidence about prior consistent statements from witnesses who testified before you: prior consistent statements are not generally admissible for the truth of their contents. But that does not mean that prior consistent statements cannot be used at all.

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Present Recollection

[9] When a witness testifies, she tells you what she knows and remembers at the time she is testifying. This is called her “present recollection”: what she recalls at the present.

Past Recollection Refreshed

[10] Sometimes a witness forgets something. This is not unusual, since trials often happen many months or years after the events. In this case, as you 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 in a prior statement, counsel may seek to refresh her memory. You saw this happen several times and I explained it to your previously. The witness is permitted to review a portion of her previous evidence, or has it read to her. Then she is asked if, on reviewing her past statement, this refreshes her as to what happened. Where a witness says that her memory has been refreshed, and that she now remembers what she had forgotten, this is what we call “past recollection refreshed”. The witness used to know something. At some time in the past she has made a statement about what she knew. She has since forgotten it. But now, reminded of her own past statement, she actually has a present recollection today. She had forgotten, but her memory has been refreshed, and she now remembers.

[11] Where a witness’ memory has been refreshed, it is her memory in the courtroom that is her evidence. You may take into account all of her testimony on the point – including that she had forgotten and then had her memory refreshed. You may take into account how her memory was refreshed, and the nature of her prior statement, in assessing whether you accept her evidence today.

Past Recollection Recorded

[12] Sometimes a witness tries to refresh her memory but still doesn’t remember. An example might be where a witness has written down a detail, such as a phone number or a license number. She reviews her past statement, but does not, today, remember the number. She may not even remember having made that part of her prior statement.

[13] Where the witness does not remember, after attempting to refresh her memory, she may testify about the prior statement. She may, for example, testify that she recalls making the prior statement, and that the statement was truthful. You heard several examples of this during the trial.

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For example, you may recall that Artur Dziura did not remember, as he was testifying, that Teresa Lasota had told him that Mr. Lasota had confessed to killing “the girl”. He did not remember that Teresa Lasota had told him this before he gave his statement to police. In fact, Mr. Dziura initially testified that he did not know Rafal Lasota had killed anyone at the time that he spoke to police.

[14] When Mr. Dziura testified, he had trouble recalling some of the things he had told police back in December 2008. Even after his memory had been refreshed, he did not remember all of it. But he did testify that he gave the statement to police, and that he was trying to tell them the truth at the time. In this way he adopted what he said to police on some points he had forgotten. This is what we call “past recollection recorded”. The witness does not remember something when he testifies, even after trying to refresh his memory, but he is able to testify that the statement was truthful and accurate when it was made.

[15] Where a witness has reviewed his past statement to refresh his memory, but still does not remember, but where he then adopts that portion of his past statement, that is his evidence on the point. You take into account all of his evidence on the point – including that he had forgotten, that he still does not remember after having had his memory refreshed, that he gave a prior statement, the circumstances of that statement, and his adoption of that prior statement before you. You take all of it into account in deciding whether you accept his evidence today that what he said previously was correct.

PRIOR INCONSISTENT STATEMENTS

[1] When a witness says one thing in the witness box, but has said something you find to be quite different on an earlier occasion, your common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe of or rely upon the witness’ testimony.

[2] Not every difference or omission will be important. You should consider the fact, nature and extent of any differences in deciding their importance to you in deciding whether you believe or will rely upon the witness’ testimony. You should also consider any explanation the witness gives for the differences.

[3] Whatever you choose to make of the differences, you can only use the testimony given under oath in this trial as evidence of what actually

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happened. You cannot use the earlier statement as evidence of what actually happened, unless you are satisfied the witness accepted it as true while in the witness box.

[4] Even then, like the evidence of any witness, it is for you to say whether or how much you will believe of, or rely upon it in reaching your decision.

PRIOR CONSISTENT STATEMENT AS SUBSTANTIVE EVIDENCE: ARTUR DZIURA’S STATEMENT

[1] Artur Dziura testified. He also made a statement to police on December 11, 2008. The police statement was video-recorded. A copy of that video is an exhibit in this case. It is important for you to understand how to approach Mr. Dziura’s testimony and consider the prior statement as 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 you may treat it differently from other statements you have heard about in this case. Both the testimony and this prior statement can be used as evidence of what happened.

[2] In deciding whether or how much to believe or rely upon Mr. Dziura’s testimony, you should apply the same principles, in the same way that you do with any other witness who testifies. You should also consider the fact, nature and extent of any differences that you find between what Mr. Dziura said in court and what he said in his police statement in deciding how much 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 it said happened actually took place. Like the witness’ testimony, it is for you to say how much or little you will believe and rely upon the statement in deciding this case.

[4] There are several factors that you should consider in deciding how much or little you will believe and rely upon the statement as evidence of what happened in this case.

[5] Take into account what happened before Mr. Dziura made his police statement. It appears that Mr. Dziura did sleep at the police station, but he would not have slept either well or long, given all the circumstances. Mr. Dziura agreed he had been through a terrifying experience the night before, during which he was very agitated. He spoke at length with his

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common law spouse, Monika, Lasota, before he gave his police statement. By his own admission, he was trying to “piece things together”. Also consider that the statement was made shortly after the events in issue.

[6] Consider also the circumstances of the police interview. Mr. Dziura did 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 questions that were asked let Mr. Dziura provide the answers? Or did the words used in the questions suggest to the witness the answers the questioner expected 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 behaviour during the interview. Take into account that the witness did not make the statement in your presence and, unlike the evidence given at trial, he was not cross-examined when he made the statement. You might consider that when he testified, Mr. Dziura seemed prepared to agree with most things asked of him, whether by the Crown or the defence, even if what he was saying was quite different from what he had said to you earlier. You may consider that the absence of any challenge or cross examination during his police statement may be very significant, given what a suggestible witness he was at trial.

[8] Keep in mind any reason or chance that the witness had or may have had for not giving the whole account, or telling the whole truth in giving 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 statement uncritically. When probed under cross examination, the substance of Mr. Dziura’s police statement appeared to have many problems with it. His evidence seemed inconsistent with Monika Lasota’s on critical points. You may be left wondering what Mr. Dziura actually saw and heard himself, and what he imagines he experienced because Monika Lasota told him about it. Mr. Dziura did acknowledge that his testimony in court may have been affected by family loyalties, whereas his police statement was not, although in weighing that evidence you should also consider that he presumably had the same loyalties to his spouse of 12 years at the time he made his statement as he did at the time he testified at trial. At the least, I suggest you should examine Mr. Dziura’s evidence very carefully, and compare it to the rest of the evidence in this case, before you are prepared to rely upon any of it.

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POST-OFFENCE CONDUCT

[1] What a person says or does after an offence was committed may indicate that s/he acted in a way in which, according to human experience and logic, is consistent with the conduct of a person who has committed the offence, and inconsistent with the conduct of a person who did not do so.

[2] After Ms. Firgan-Hewie was killed, Ms Liard and Mr. Lasota lied to Monika Lasota and Teresa Lasota in telling them that “the girl had gone home”. Mr. Lasota disposed of Ms. Firgan-Hewie’s body behind a shed in the Lasota back yard. Mr. Lasota’s cleaned his bedroom quite thoroughly. Ms. Liard shed Mr. Lasota’s clothes. When Teresa Lasota said she was calling police, Mr. Lasota and Ms. Liard ran away, first to Ms. Liard’s house, 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 very serious trouble. This does not help you decide his guilt as between manslaughter, 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 a state of shock. She was not thinking properly. She was grieving the imminent end of an important relationship for her. She may not have acted properly or well, but acting badly in the face of crisis is not the same thing as murder. It is for you to say whether her conduct may point to guilt, or may be explained in other ways.

POLICE STATEMENT OF MICHELLE LIARD

[1] You saw Michelle Liard’s statement to police. She gave the statement on December 11, 2008, starting roughly twelve hours after Ms. Firgan-Hewie was killed. You may find that certain of the statements made by Ms. Liard in this interview are consistent with what Ms. Liard testified in court.

[2] As I have told you, as a matter of logic and common sense, there fact that a witness has made a prior consistent statement does not make

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that person more credible. It does not make their evidence more true just because they have repeated it. A witness’ testimony is not made more probable or more true by any number of repetitions of it.

[3] At the time that Ms. Liard gave her statement, she had spent roughly 7.5 hours with Mr. Lasota after the killing. They had plenty of time to “think things through” and devise some sort of story. On the other hand, the killing was a shocking event. You may consider that Ms. Liard was under considerable stress from the time she learned that Ms. Firgan-Hewie was dead until the time she gave her police statement. You should not ignore the possibility that her police statement was self-serving. You should weigh that possibility. To the extent that you believe the statement may not have been self-serving, you may find the consistency between that statement and her evidence at trial enhances her credibility. In other words, if you accept that the statement is not self-serving, you may reason that the testimony in court is more likely to be true if, in material details, it corresponds to material details Ms. Liard told police upon being first confronted with the matters at issue in this case.

[4] In addition, the law does recognize that the reaction of an accused person, when first confronted with an allegation or charge, may have probative value. During the interview, Ms. Liard was confronted with three sets of circumstances:

(i) she was confronted about washing Mr. Lasota’s clothes, and was cautioned 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 and stayed 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 in considering her innocence or guilt, you can factor in your observations of Ms. Liard’s reaction and demeanour on being confronted with these things.

[5] There is one other purpose for which you may consider this evidence: the time at which it was given. Ms. Liard gave this statement before 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 of Ms. Firgan-Hewie’s statement to police concerning the robbery said to have been committed by Gary Macdonald. It is for you to say, but you may

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consider that there are entries in Ms. Firgan-Hewie’s diary, and details in Ms. 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 to police about Mr. Macdonald, had been threatened as a result of doing this, and thus was concerned about Mr. Macdonald. You may consider it significant that Ms. Liard told police these things before she knew about the 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 and mental state at the time. In assessing consistency, look not only to individual 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 the interview. The things said by police in the interview are not evidence in this trial. For example, police suggested, or implied, that Mr. Lasota had told 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 or implied that they believe Ms. Liard is guilty of first degree murder. As I told you earlier, police are permitted to lie to suspects during interviews. They may express opinions (whether they believe them or not) You must not take anything said by police during the interview as evidence of the truth of what they were saying.

[9] Second, I remind you that Ms. Liard’s video statement is not evidence for proof of the truth of its contents. You may only use it for the purposes I have just described.

REASONABLE DOUBT REVISITED

[1] As you know, Ms. Liard testified in this trial. She said that there was no plan to kill Ms. Firgan-Hewie, and that she did not know Mr. Lasota would kill Ms. Firgan-Hewie when he was left alone with her in his bedroom.

[2] If you believe Ms. Liard’s evidence on these points, then you must find her not guilty.

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[3] Even if you do not believe Ms. Liard’s evidence, if it leaves you with a reasonable doubt about her guilt, you must find her not guilty.

[4] Even if Ms. Liard’s evidence does not leave you with a reasonable doubt of her guilt, you may convict her only if the rest of the evidence that you do accept proves her guilt beyond a reasonable doubt.

[5] These principles apply with equal force to Mr. Lasota, although the application is somewhat different in his case, since the case against him is different than the case against Ms. Liard. In summary, you may only convict him of an offence if the evidence that you do accept proves his guilt beyond a reasonable doubt.

[5] I will return to this instruction after I review with you the concepts of manslaughter, second degree murder, and the two theories of first degree murder 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 you may consider that homicide is divided into three grades: first degree murder, second degree murder, and manslaughter.

[2] For manslaughter, the Crown must prove beyond a reasonable doubt 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 a reasonable 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 reasonable doubt four elements:

(i) That the accused killed the victim; and(ii) That the accused killed the victim unlawfully; and

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(iii) That the accused had the intent for murder; and(iv) That the killing was either:

a. Planned and deliberate; orb. Committed during the course of unlawful confinement of the

victim.

[5] As you will understand from this analysis, the first two elements of first degree murder are the same two elements for manslaughter, and the first three elements of first degree murder are the same as the elements for second degree murder.

[6] As you know, both Michelle Liard and Rafal Lasota are charged with first degree murder. I start this portion of my instructions analysing the case against Mr. Lasota. I then summarize the case against Ms. Liard. As I told you in my introductory instructions, I follow this order because I believe it is an easier way in which to explain the law to you. Do not read any other reason into this order for these instructions.

[7] I organize each section of my analysis of the law in the form of a question. The questions are set out in bold-face type. The Crown must satisfy you of each of these questions beyond a reasonable doubt for you to answer “yes” to the questions.

Mr. Lasota

[1] Mr. Lasota is charged with the first degree murder of Aleksandra Firgin-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 for nothing 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 charges against 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, she and Mr. Lasota invited Ms. Firgin-Hewie to meet them some time between 4:30 and 5:00 p.m. on December 10, 2008. The cell phone records show the time of this call from Ms. Liard to Ms. Firgin-Hewie as about 4:47 p.m..

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The call, and its substance, are confirmed by Racheal Miller, who says that she 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. This is 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 that Ms. Firgin-Hewie did not leave immediately after she received the call from Ms. Liard. Ms. Miller said that Ms. Firgin-Hewie may have waited fifteen or twenty 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. Liard made their purchase there showed about 5:00 p.m., but it is conceded that this clock was running about twenty minutes fast (that is, the time of the LCBO purchases was about 4:40 p.m.). Whatever the precise times, it seems 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 the tunnel 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 2-3 minutes, or perhaps 5 minutes. This would place Ms. Liard, Mr. Lasota, and Ms. Firgin-Hewie back at the Lasota house sometime around about 5:15 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 is ordinarily 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 evidence to the contrary on this point. None of Monika Lasota, Artur Dziura and Teresa Lasota was asked about this point, and they could have been. Thus, on Ms. Liard’s uncontradicted evidence on this point, I would suggest 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 and Ms. Firgin-Hewie in the bedroom.

[6] Ms. Liard testified that she may have had one cigarette, or perhaps started a second cigarette, while she was outside speaking with Monika

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Lasota. She estimated the time she was with Monika, before going back into the house, at about 5-12 minutes. This evidence is generally consistent with the evidence of Monika Lasota and Artur Dziura, and I would suggest that there is no reason to disbelieve it.

[7] Ms. Liard testified that Mr. Dziura asked her to go inside to investigate suspicious noises that Mr. Dziura had heard coming from upstairs. Ms Liard testified that she went into the house and up to the door of Mr. Lasota’s room. She says that the door to Mr. Lasota’s room was blocked and that it would only open a short way, which she estimated at between about one and two inches, perhaps between 3 and 5 centimeters. This evidence was generally confirmed by Monika Lasota, who also testified to the door being blocked, and speaking to her brother through a small aperture in the door.

[8] Both Monika Lasota and Michelle Liard testified that Mr. Lasota told them that he would come out in a short while, variously described as “two minutes”, a “couple of minutes”, “five minutes”, or perhaps “ten minutes”. Both Michelle Liard and Monika Lasota testified that they then went downstairs and outside. Mr. Lasota came out of the house a short time later.

[9] Ms. Liard testified that, after Mr. Lasota came out of the house, he took her aside and told her that he “thought he had killed Aleks”.

[10] Shortly after Mr. Lasota came out of the house, Monika Lasota and Artur Dziura left the house in one of their vehicles. According to Michelle Liard, from that time, likely around 6:00 p.m., until around 1:45 a.m. on December 11, 2008, Ms. Liard and Mr. Lasota were together, aside only from:

(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 caused by a bladed instrument, such as a knife. As a matter of common sense,

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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 the bathroom, it presented as having been diluted with water, and was consistent with clothes bearing Ms. Fergin-Hewie’s blood being washed in the bathroom; and(c) there is no evidence that Ms. Firgin-Hewie was bleeding anywhere else in the Lasota house.

[13] Ms. Firgin-Hewie’s body was discovered in a tripled-up green garbage bag behind the shed of the Lasota house, shortly after police arrived at the house, sometime after 1:30 a.m..

[14] When Teresa Lasota got home, and after she had spoken to her daughter 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 not appear 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”. Teresa Lasota then noticed that some of the furniture in her bedroom had been moved, and she suspected that it could have been moved if someone had been removing a bulky object from the house through the sliding glass doors that led from her bedroom to the back yard. She went to investigate and discovered what appeared to be two green garbage bags behind the shed at the end of the back yard. She did not open the bags, but felt them with her foot. They felt “soft”. She went back to the house and asked Mr. Lasota about them. Mr. Lasota denied anything amiss, and his mother then 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 through the 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 December 10, 2008. He did so with a bladed instrument such as a knife. He disposed of her body behind the shed. He confessed what he had done, first to Ms. Liard, and later to his mother.

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Analysis

[17] It is for you to say whether the Crown has proved beyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie. I suggest to you that the evidence is overwhelming that he did so, and there is no evidence to the contrary. However, it is for you to decide, not me. If you are not satisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie, then you must acquit Mr. Lasota of all charges. If you are satisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie, then you 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 wounding them repeatedly with a bladed instrument such as a knife.

[2] There is no evidence in this trial that Mr. Lasota acted in defence of himself or his property. Thus there is no evidence that Mr. Lasota had a lawful excuse to kill Ms. Firgan-Hewie.

[3] Accordingly, while it is for you to say, I would suggest to you that it is clear that the killing of Ms. Firgin-Hewie was unlawful.

[4] If you are satisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie unlawfully, then you should proceed to the next question. If you are not satisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie unlawfully, then you should acquit Mr. Lasota of all charges.

Question #3: Did Mr. Lasota have the intent for murder?

[1] If you are satisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie, and that he did so unlawfully, then you must then consider whether he had the intent for murder.

[2] To establish the intent to commit murder, the Crown must satisfy you beyond 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.

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[3] Mr. Lasota’s intent is a question of what was in his mind at the time he 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 may conclude that a person intends the natural and likely consequences of his own actions. For example, an accused person who knowingly points a loaded gun at someone’s head and pulls the trigger may be found to have intended to kill the other person, since that would be the natural and likely consequences 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 deep puncture wound, opened the jugular vein. The other, which appears as a long and deep slashing wound, opened the carotid artery. Either wound would have been sufficient to cause death. Dr. Rose testified that it was theoretically possible to survive such wounds, if one received immediate expert medical assistance. She added that if such a wound was sustained in a hospital, the wound could still prove fatal. She further testified that death could result from either of these wounds in seconds or a few minutes. There was a third wound, a long and deep slashing wound to the lower cheek and jaw area, which you could consider to have been an attempt to slash Ms. Firgin-Hewie’s throat. In addition, there were several deep wounds to Ms. Firgin-Hewie’s chest which caused both of her lungs to collapse. On my recollection of Dr. Rose’s evidence, there were about six wounds which could have caused death.

[7] There were also numerous wounds that, by themselves, would not likely have caused death. There were multiple wounds to Ms. Firgin-Hewie’s hands and arm, which Dr. Rose characterized as “defensive wounds”. In Dr. Rose’s opinion, some of these wounds appeared to be the kind of wound that could be sustained by trying to block an attack, perhaps even by grabbing the blade with the hand. The injuries to the inner sides of the hands could lead you to conclude, I suggest, that Ms. Firgin-Hewie was trying to defend herself with her bare hands while she was being attacked.

[8] In addition to the 37 incisive wounds, there were 23 blunt force injuries, 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

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wounds, and that he also struck Ms. Firgin-Hewie with considerable force with his other hand.

[9] You have seen the pictures of Ms. Firgin-Hewie taken prior to the autopsy conducted on her body. While it is for you to say, I would suggest to you that the wounds inflicted on Ms. Firgin-Hewie appear to reflect a sustained attack consistent with rage and/or a frenzy.

[10] The evidence is consistent that Mr. Lasota was alone in his bedroom at 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 somewhere between 160 and 170 pounds. Ms. Firgin-Hewie was 13 years old; she would have turned 14 in January 2009. She was 5’4” in height, and weighed somewhere around 105 pounds. Based on her appearance, she was an adolescent, not a small child. But it is clear that she was much smaller and physically weaker than Mr. Lasota.

[11] You heard some evidence about Mr. Lasota’s general pattern of consumption of alcohol and marijuana. You also heard that his intake of intoxicants increased after he was attacked with a knife a few days before Ms. Firgin-Hewie was killed.

[12] In some circumstances, intoxication may be so severe as to deprive a 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, I will not review the evidence on this issue in great detail. Monika Lasota described Mr. Lasota as “very intoxicated” when she spoke to him through his blocked door at around the time of the killing. She described him as walking 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. She testified that they went to the liquor store prior to meeting Ms. Firgin-Hewie. Monika Lasota saw them on the street and drove them to the store. Monika Lasota was not asked and did not comment that her brother seemed intoxicated at this time. Then Mr. Lasota and Ms. Liard purchased alcohol, 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 five minutes, and then walked back to the Lasota house. There is no evidence that Mr. Lasota had any difficulty in walking or talking during this period, or was in anything other than in control of his faculties. Mr. Lasota then

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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 5-12 minutes or so after Ms. Liard went downstairs and outside to speak with Monika Lasota. There is no evidence that Mr. Lasota consumed intoxicants in this brief period before Ms. Firgin-Hewie was killed.

[15] Mr. Lasota had the presence of mind to block the door to his bedroom, either prior to his killing Ms. Firgin-Hewie, or after he had attacked her. When Ms. Liard and Monika Lasota came to his bedroom door, on their testimony, he was agitated, but he was able to communicate clearly that he would come out in a short period of time.

[16] Mr. Lasota did come out of his bedroom and went outside, as he said he would. There is no evidence that he had difficulty communicating with Ms. Liard, or with Monika Lasota and Artur Dziura immediately after he came out of the house. Monika and Artur then left the house, and Mr. Lasota evidently commenced cleaning up his room. On Ms. Liard’s evidence, the entire extensive clean-up in Mr. Lasota’s room was done by Mr. Lasota. Ms. Liard cleaned his bloody clothing in the bathroom, but the rest of the work was all done by Mr. Lasota. Based on the blood spatter evidence of Constable Kastelic, there were extensive surfaces cleaned by Mr. Lasota. It appears that he turned his mattress over to hide the large blood stain on it. It appears that he reversed the drapes hanging in his room, so that the spots of blood would not show so much. Mr. Lasota’s clean up was so thorough and effective that Teresa Lasota did not see anything 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 the room when they first entered and went through the house. It was not until police went over the room closely and in detail that they saw the small drops of blood that escaped Mr. Lasota’s efforts to clean his room. Based on all of these circumstances, and the absence of any positive evidence of Mr. 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 the aftermath of the knife attack upon him, and the threats he believed that had been made against him. However, there is no evidence that he was fearful of Ms. Firgin-Hewie, or that he was fearful being alone with her in his bedroom.

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[18] You have seen the photographs of Ms. Fergin-Hewie’s body taken at the autopsy. It has been suggested to you that the pattern of injuries reflects 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 time of the killing, based on the nature of his attack. This conclusion seems available to you on the evidence.

[19] Mr. Grill concedes that neither fear nor rage, by themselves, are a basis on which you could conclude, in this case, that Mr. Lasota may have lacked 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 from a few days earlier, and his evident rage at the time opf the killing, you might have a reasonable doubt that he had the intent required for you to find him guilty of murder.

[21] This is a question for you to decide. But I am permitted to comment upon it. First, the evidence of intoxication seems weak. Aside from the time Mr. Lasota was alone in his bedroom with Ms. Firgin-Hewie, he appears to have been in control of his faculties and capable of understanding and intending the consequences of his actions. I would suggest to you that a person does not suddenly become severely intoxicated, and then just as suddenly, cease to be severely intoxicated a few minutes later. Second, although there is evidence that Mr. Lasota was generally fearful, there is no evidence at all that he was feeling fear while he was in his bedroom with Ms. Firgin-Hewie. With respect, I would suggest there is no reasonable basis on which you can infer that he was fearful at that time. You are not entitled to make up evidence or speculate in the absence of evidence. It is for you to say, but I would suggest that Mr. Lasota’s understandable and rational fear as a result of the threats and previous attack do not provide a basis to conclude that his fear suddenly overcame him to the point that he was irrational and unable to control himself. There is no evidence at all that anything did or could have happened in Mr. Lasota’s bedroom that did or could have triggered such a response, aside, of course, from the killing itself. And third, anger, even rage, does not generally negate intent. You would have to be satisfied that Mr. Lasota was so overcome by rage that he could not form the intent to do the things he did. Again, there is no evidence at all that anything of the sort took place in Mr. Lasota’s bedroom. With respect, using the fact of the killing to suggest that Mr. Lasota may not have intended to kill seems to me circular and unpersuasive: the logic, it seems to me, is that because he killed Mr. Firgin-Hewie, and did so in the manner that you see in the

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autopsy photographs, you may therefore infer that he may not have intended to do what he did.

[18] Given all of the circumstances, I suggest to you that it is clear that Mr. Lasota intended to kill Ms. Firgin-Hewie. Stabbing and slashing someone repeatedly with a bladed instrument such as a knife in the chest and throat areas would, I suggest, provide a comparable basis for inferring intent as the example I provided at the outset of this section: a loaded gun fired at someone’s head. However, it is for you to say whether you are satisfied 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 killed Ms. Firgin-Hewie, that he did so unlawfully, and that he had the intent for murder, then you should proceed to the next question. If you are satisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie, and that he did so unlawfully, but you are not satisfied beyond a reasonable doubt that he had the intent for murder, then you should find him not guilty of first degree murder, but guilty of the lesser and included offence of manslaughter.

Question Four: Is This First Degree Murder?

[1] You will consider question number four only if you are satisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Firgin-Hewie, that he did so illegally, and that he had the intent for murder when he did so. In that event you will ask yourself if this was first degree murder. To answer that 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) and question (b) beyond a reasonable doubt. The Crown need only satisfy you beyond a reasonable doubt that either question (a) or question (b) is yes to prove 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-Hewie was previously formulated.

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[2] “Deliberate” means that the killing was considered, and not hasty or rash.

[3] To establish first degree murder on this basis, the Crown must satisfy you beyond a reasonable doubt that the murder of Ms. Firgin-Hewie was both “planned” and “deliberate”. “Planned” without “deliberate” is not enough. Likewise, “deliberate”, without “planned”, is not enough.

[4] The Crown suggests two possible motives that suggest this was a planned and deliberate murder. Mr. McGuire did not use these short descriptors 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 planning and deliberation. Rather, they are alleged motives.

[6] The Crown does not have to prove motive. Motive is not an element of the offence of first degree murder. On the other hand, the Crown may lead evidence of motive, which it has done in this case. To the extent that you conclude that there is evidence of motive, you may consider that as circumstantial evidence that may bear on your determination of whether the Crown has satisfied you beyond a reasonable doubt that the murder was planned and deliberate.

[7] I start with the evidence, both for and against, in respect to planning and 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 theory of 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.

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(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

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was working on repairing his desk, which had been damaged in the break-in at the Lasota house. Ms. Liard does not recall saying this, but agrees that she might have, since the desk had been damaged, and Mr. Lasota was going to repair it. The Crown argues that Ms. Liard went into the house and then tried to prevent Mr. Dziura from entering the house by blocking the door. That is how Mr. Dziura described events in his statement to police. But on the stand he did not agree with that characterization. Rather, he agreed with Ms. Liard that she was immediately behind the door, and thus the door struck her, when he tried to open it. He testified that he could not actually see Ms. Liard at this time, since she was on the other side of the door. The Crown argues that Ms. Liard was actively trying to prevent Mr. Dziura from entering the house, and that Mr. Dziura said that Ms. Liard told him: “don’t go up there; don’t go up there”. Both Monika Lasota and Artur Dziura said that Ms. Liard told them something to the effect that “the girl’s alright” and that Mr. Lasota was upstairs “with the girl who tried to set him up to be killed”. Ms. Liard’s evidence differs from Monika Lasota’s and Mr. Dziura’s evidence respecting these brief moments. Ms. Liard said she did go upstairs and spoke with Mr. Lasota through his blocked door, at roughly the same time that Monika Lasota went upstairs.

(vii) Ms. Firgan-Hewie was killed very shortly after Ms. Liard went downstairs to speak with Monika. Ms. Liard estimates the time at between 5 and 12 minutes. It is for you to say how long it was, but on any view it was a relatively short time after Ms. Liard left Mr. Lasota’s bedroom. The Crown suggests that this shows a co-ordinated plan.

(viii) On Ms. Liard’s evidence, immediately after the killing, Mr. Lasota told her that he “thought he’d killed” Ms. Firgin-Hewie. Ms. Liard reacted by telling Monika Lasota that “the girl had gone home”. After Monika Lasota and Artur Dziura left the Lasota house, Ms. Liard stayed at the house with Mr. Lasota. During this time, Ms. Firgin-Hewie’s body was disposed of in tripled garbage bags and placed behind the shed in the back yard. Mr. Lasota’s room was cleaned extensively. Mr. Lasota’s clothes were washed in bleach. On Ms. Liard’s evidence, Mr. Lasota asked her to clean the clothes, and she did so, in the bathroom. She denies helping to clean Mr. Lasota’s bedroom or helping to move Ms. Firgin-Hewie’s body.

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(ix) Apart from the brief walk Ms. Liard took down the street, for perhaps ten minutes, she and Mr. Lasota stayed together at the house until Teresa Lasota arrived there with Monika Lasota and Artur Dziura. Mr. Lasota lied to his mother and said that “the girl had gone home”. Ms. Liard did not contradict Mr. Lasota when he said this. After Teresa Lasota investigated in the back yard and confronted Mr. Lasota again, he continued to insist that nothing was wrong. It was not until Teresa Lasota said she would go out and open the bags in the back yard that he broke down and confessed to having killed Ms. Firgin-Hewie. Ms. Liard testified that she participated in this part of the conversation by saying something to the effect that Mr. Lasota could not let his mother go outside to open the garbage bags, effectively saying that she told Mr. Lasota that he had to tell his mother the truth rather than putting her through the gruesome experience of uncovering the body. Ms. Lasota did not recall Ms. Liard saying anything at this time. Once Mr. Lasota had confessed to his mother, his mother indicated that she would call the police. Then Mr. Lasota and Ms. Liard left the Lasota house together, out the back sliding doors. They went together to Ms. Liard’s residence. They stayed together while Mr. Lasota telephoned Monika Lasota and then, receiving no answer on that phone, Artur Dziura. They left Ms. Liard’s house together, and separated when Mr. Lasota ran off upon seeing a police car.

[9] You may consider that a response to these points is as follows:

(i) Ms. Liard agrees that she placed the call to invite Ms. Firgin-Hewie to speak with herself and Mr. Lasota. I suggest that this fact is equally consistent with the purpose of the call being to arrange to talk as it is with the Crown’s theory of planned and deliberate murder.

(ii) Ms. Liard denies asking Ms. Firgin-Hewie not to tell anyone where she was going or who she was going to meet. On Ms. Liard’s evidence, either Ms. Miller is not correct when she says otherwise, or Ms. Firgin-Hewie was not telling Ms. Miller the truth, or Ms. Miller misunderstood or misremembered what she was told by Ms. Liard. Given that the plan was to meet at the “tunnel”, a usual gathering spot for young people in the neighbourhood, and given that they would be walking openly

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through the neighbourhood back to the Lasota house, you might question that Ms. Liard actually told Ms. Firgin-Hewie not to tell anyone she was going to meet them.

(iii) Ms. Liard agreed that it was suggested to go back to the Lasota house, because it was very cold outside. No evidence to the contrary was led concerning the weather that evening. I suggest that this fact does not establish much, one way or the other.

(iv) Ms. Liard agreed that they went directly to Mr. Lasota’s bedroom when they reached the house. On her testimony, that is where she and Mr. Lasota usually spent their time. There was no evidence to contradict this testimony. You saw the pictures of the house and of Mr. Lasota’s room. The house was, to coin a word from one of the police officers, “immaculate”. Mr. Lasota’s room was not so. Mr. Lasota’s room included amenities such as a coffee table and a television set. Teresa Lasota, Monika Lasota and Artur Dziura all confirmed that Mr. Lasota sought to insist on privacy in his own room, which was a source of tension between him and his mother. On balance, I would suggest that this evidence seems consistent with the general thrust of the evidence you heard from several witnesses, and does not establish much, one way or the other.

(v) Ms. Liard agreed that Mr. Lasota asked her to go outside to have a cigarette with Monika Lasota as soon as they arrived in Mr. Lasota’s bedroom. The Crown argues that this would be strange if Mr. Lasota and Ms. Liard wanted to speak with Ms. Firgin-Hewie about the situation with Gary Macdonald: why would Ms. Liard leave just as they were about to discuss their “business”? Ms. Liard responded in two ways. First, she said that Monika Lasota was very upset and concerned about her brother because of the recent knife attack on him. They had spoken briefly about this when Monika gave them a ride to the LCBO. That conversation was not finished, and it was natural for her to go to speak with her about it further. Second, while she was concerned about the “Gary Macdonald situation”, there was no reason that Mr. Lasota could not start the conversation without her. It was, after all, primarily his issue, and she would only be outside for a few minutes. The Crown argues that the reason Ms. Liard invited Monika Lasota out of the house was so

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that she would not hear any noise during the planned attack. This could be, but there are two factors that you might consider to be inconsistent with this argument. First, Artur Dziura was in the house, asleep. The bedroom in which he was sleeping was right underneath Mr. Lasota’s bedroom. As a result of the ductwork in the house, sound travelled easily from Mr. Lasota’s bedroom to the room in which Mr. Dziura was sleeping. This point is compounded for two reasons: there is no evidence that Ms. Liard and Mr. Lasota knew that Mr. Dziura was asleep. While it is true that Mr. Dziura liked to sleep on days he was not working, it strains common sense to think that his habit was to sleep around the clock on his days off. Second, on the uncontradicted evidence of both Mr. Dziura and Monika Lasota, Mr. Dziura always drove if he was leaving the house to go somewhere. As a result, if his truck was parked at the house, it was almost certain that he was at home. His truck was parked in plain sight outside the home, and so Ms. Liard and Mr. Lasota surely knew that Mr. Dziura was almost certainly at home. You might consider it unlikely that Mr. Lasota and Ms. Liard would plan to kill someone with a knife in Mr. Lasota’s bedroom when they knew Mr. Dziura was in the house, whether or not they thought he might be asleep. Second, Teresa Lasota was expected home between 6:00 and 7:00. The Crown argues that the killing was before 6:00, and so could have been timed for completion before Teresa Lasota arrived home. You could accept that. But you also might consider that it must have taken a long time to clean up the blood from this killing, and it would have been awkward, at minimum, to do the clean up work and dispose of Ms. Firgan-Hewie’s body while Teresa Lasota was at home.

(vi) The evidence of Mr. Dziura and Monika Lasota of Ms. Liard’s conduct and words from the time she was smoking with Monika Lasota, until Mr. Dziura and Ms. Lasota left the Lasota house, provides stronger evidence for the Crown. Ms. Liard denies that she blocked Mr. Dziura from entering the house. Since, at trial, Mr. Dziura’s testified that he cannot say that Ms. Liard blocked him intentionally, you may doubt that Ms. Liard did block him in the manner he seems to describe in his statement to police. A considerable amount of time was spent during the trial examining and cross examining Monika Lasota and especially Mr. Dziura on these points. I suggest that you bear in mind that the events themselves – running into the house,

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speaking with Mr. Lasota while his door was blocked and coming out of the house – must have taken place in a very short period of time, when both Monika Lasota and Artur Dziura were very upset and frightened. It is for you to say how much weight you will place on their evidence on these points.

(vii) If Mr. Lasota was waiting for Ms. Liard to leave and get Monika Lasota out of the house, and if he was intent on killing Ms. Firgin-Hewie before Monika Lasota went inside again, one might have expected him to start the killing even faster than he did: it was cold outside, and the women might well not linger outside once they had finished their cigarettes. The force of this argument may turn on precisely how long the delay was between Ms. Liard leaving the bedroom and the killing: if it was closer to 10 or 12 minutes, this argument might have little force; if it was just two or three minutes, then you might find this persuasive. I suggest that you might have considerable difficulty forming any firm conclusions on the length of the gap in time, as between five minutes and twelve minutes. In considering this point, you might wish to consider that all of the relevant time periods provided to you by the witnesses were estimates.

(viii) Ms. Liard admitted that she did not react as the Crown suggested she ought to have reacted when Mr. Lasota told her that he “thought he’d killed” Ms. Firgan-Hewie. Ms. Liard testified that she was in a state of shock and thinking of protecting her boyfriend. She also testified that she was not thinking clearly and was just reacting. The Crown argues that Ms. Liard reacted the way that she did because she was not surprised that Mr. Lasota had killed Ms. Firgan-Hewie, since this was the plan. Monika Lasota testified that Mr. Lasota looked disoriented when he came out of the house. Mr. Dziura testified that Mr. Lasota looked “terrified”.

(ix) Ms. Liard admits that she and Mr. Lasota cleaned up after the killing. She acknowledges that, at the time, this was done with a view to Mr. Lasota not being caught. She also testified that she did not believe that Mr. Lasota could escape detection, and part of the atmosphere between them was, in effect, saying good-bye to each other. The Crown argues that this post-offence conduct is a basis on which you may conclude that Ms. Liard and Mr. Lasota knew that they were responsible for killing

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Ms. Firgin-Hewie. This argument does not really advance the Crown’s case against Mr. Lasota: Mr. Lasota had, in fact, killed Ms. Firgan-Hewie, and Mr. Lasota and Ms. Liard discussed their view that Mr. Lasota would likely spend many years in jail for doing this. I suggest that this conduct does not support an inference of first degree murder as opposed to, say, second degree murder. Rather, it would be reasonable to conclude that Mr. Lasota knew that he was responsible for killing Ms. Firgan-Hewie, and for doing so in a most horrific way, and that he faced gravely serious consequences as a result.

[10] In addition, there are several other points you may wish to consider related to the Crown’s theory that this was a planned and deliberate murder. I suggest to you that if this killing was planned and deliberate, then it was a very bad plan.

(i) You heard evidence that Monika and Teresa Lasota were absent from the house on a daily basis to go to work. You also heard that Mr. Dziura worked regularly in construction doing tiling work. The killing took place when both Monika and Artur Dziura were at home. It took place at around the time Teresa Lasota was expected home from work. I suggest that it should not have been difficult to arrange these events for a time when these people were not in the house and were not expected home imminently. You also heard that Mr. Lasota was working, at least sporadically, and from time to time had some money. No doubt he did not have a lot of money, but I suggest that it would have been possible for him to rent an inexpensive motel room for a planned and deliberate killing, rather than doing it in his own bedroom.

(ii) Ms. Firgin-Hewie was killed in Mr. Lasota’s bedroom. Why would Mr. Lasota and Ms. Liard plan to commit this crime in a place where it would be so difficult to contain the physical evidence, and where any physical evidence would point straight at Mr. Lasota? In particular, why would Mr. Lasota kill Ms. Firgin-Hewie near or on top of his own mattress, which was soaked in blood as a result. Such evidence was concealed in a superficial way during the clean-up, it is true, but I suggest that it is hard to imagine why they would plan a killing in this way.

(iii) Mr. McGuire argued that Ms. Firgan-Hewie’s voice was constrained or muffled, and that is something you may

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consider. However, there was no evidence that Ms. Firgin-Hewie was bound or gagged, or that there were items in the room, at hand, that were intended for that use. Given Mr. Lasota’s much superior size and strength, one would suppose that it would have been fairly easy for him to tie up and gag Ms. Firgan-Hewie had he wished to do so.

(iv) It does not appear that there was any plan to dispose of Ms. Firgan-Hewie’s body. Placing it behind the shed of the Lasota home, where likely it would be discovered eventually, would cast the spotlight of blame immediately back to Mr. Lasota. It is possible that Mr. Lasota planned on moving the body elsewhere, later. But he had many hours from the time his sister and Mr. Dziura left the house, and he did nothing to move the body away from his house during that time. He did not have access to a car; Ms. Liard testified that he owned a car but that it was not operable at the time of the killing. No arrangements were made in advance to secure the use of a vehicle so that the body could be moved, and there is no evidence that there was any plan to do so at some later time.

(v) It does not appear that there was any plan to get away after the killing. You may consider this equivocal if you conclude that Ms. Liard and Mr. Lasota planned and expected not to be suspected of this crime. But you might also consider that it appears that neither of them had any significant cash with them, in case they needed to escape. Ms. Liard ended up going back to her own residence, and Mr. Lasota slept alone, in the back yard of a women’s shelter.

[11] The Crown argues that just because the plan was not a good one does not mean that there was no plan. This is true. But I suggest to you that the weaknesses in the alleged plan must be examined closely. On this theory of first degree murder, the Crown must satisfy you beyond a reasonable doubt that Mr. Lasota and Ms. Liard planned this killing in advance. And you must ask yourself whether you are satisfied beyond a reasonable doubt that this killing was planned and deliberate.

Evidence of Motive

[1] As Mr. McGuire argued, the Crown does not have to prove motive. Motive is not an essential element of the offence of first degree murder. Thus the Crown does not have to satisfy you of motive beyond a

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reasonable doubt. The presence or absence of evidence of motive is merely one of the circumstances that you may consider when deciding whether the Crown has proved the case against Mr. Lasota and/or Ms. Liard beyond a reasonable doubt.

[2] To put this point in context, consider the case against Mr. Lasota. As I have already told you, Mr. Lasota has effectively, though not formally, conceded that he committed manslaughter. His motive for manslaughter is no more evident than his motive for murder. Similarly, I have suggested to you that you may consider it clear that Mr. Lasota must have had the intent for murder, and thus you may conclude that he is guilty of second degree murder. His motive for second degree murder is no more evident than his motive for first degree murder.

[3] The reason you may consider the presence or absence of evidence of motive significant, I suggest, is that this may shed considerable light on whether the Crown has satisfied you beyond a reasonable doubt that this was first degree murder. Put another way, if Ms. Liard’s story, and the statements she is said to have made that she wanted to cut Ms. Firgan-Hewie into pieces, were not in evidence, then, I suggest to you, you would not be considering that Ms. Firgan-Hewie was killed for the sheer pleasure of killing her.

[4] Similarly, the Crown argued that the killing may have been motivated by revenge. The only cogent evidence that this may have been so is the statement attributed to Ms. Liard that Mr. Lasota was upstairs “with the girl who tried to set him up”. Without this piece of evidence, you might conclude that there was really no basis to assert revenge as a motive for the killing.

[5] As I have described for you, the affirmative evidence that Ms. Liard was helping Mr. Lasota carry out the killing of Ms. Liard does not seem particularly strong. Many of the pieces of evidence relied upon by the Crown admit of an innocent or alternative explanation, in the absence of evidence of motive. I suggest to you that the evidence of motive colours these other pieces of evidence considerably. Whether this colouring is the only, or even a reasonable interpretation of the evidence, is for you to say. As I have said, motive may be a relevant circumstance, and you may take it into account in assessing the rest of the evidence. But even though, as a matter of law, the Crown is not required to prove motive beyond a reasonable doubt, the significance of motive for the allegation of first degree murder in this case should, I suggest, lead you to reflect carefully

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on the theories of motive before you determine whether motive should, or should not, colour your appreciation of the rest of the evidence.

[6] Remember, too, that motive does not, itself, prove guilt. Sometimes people kill without motive. Sometimes people kill with motive, but their motive is unclear. And, of course, many people may have the motive to commit a crime, even to commit murder, and yet not commit the offence.

(a) “Thrill Kill”

[1] You may have noticed that I did not refer to the story written by Ms. Liard as evidence of planning and deliberation. As I told you when the story was introduced into evidence, the story written by Ms. Liard may not be used as evidence against Mr. Lasota. He did not write it. There is no evidence that he ever read it. There is no evidence that Ms. Liard ever told him about it. I review the story in more detail when I consider the case against Ms. Liard in a few minutes.

[2] There is evidence that Ms. Liard may have made a statement to Ms. Firgan-Hewie, which could be characterized as menacing. Kevin Martins testified that Ms. Liard told Ms. Firgan-Hewie that she “wanted to experiment on her” and “to cut her to pieces”. These statements were allegedly made at the “tunnel”, when there was a group of young people present.

[3] This evidence is reinforced by the evidence of Matthew Jacob. You will recall that Mr. Jacob was a friend of Mr. Lasota’s. He did not spend a lot of time together with Mr. Lasota and Ms. Liard, but he recalled walking with the two of them when Ms. Liard told him that she had made a comment to Ms. Firgan-Hewie. Mr. Jacob says that Ms. Liard first asked Mr. Lasota whether she should tell Mr. Jacob about the conversation. Mr. Lasota responded “sure”, or something to that effect. Ms. Liard then said she had told Ms. Firgan-Hewie that she wanted “to cut her into pieces”. Mr. Jacob also said Ms. Liard said she had made a similar comment to Ms. Stephen Miller.

[4] Ms. Liard denies making the statements, at least in the way in which they were described in court. She says that she may have said something like “don’t cut her up; chop her”. This phrase, she said, plays on two colloquial expressions: “cutting someone up”, as in criticizing them, and “chopping” someone, as in dating them.

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[5] It is not clear from the evidence of either Mr. Martins or Mr. Jacob when they say Ms. Liard said these things to Ms. Firgan-Hewie.

[6] You have Ms. Firgan-Hewie’s diary. You will see that it contains a few references to Michelle Liard, under either then name “Michelle” or the name “Meesh”, which is Ms. Liard’s nickname. Nowhere in the diary does Ms. Firgan-Hewie record being threatened by Ms. Liard. Nowhere does she record Ms. Liard as making this kind of disquieting statement to her. The absence of an entry in the diary does not mean the statement was not made, of course. The diary does not relate all of the events in Ms. Firgan-Hewie’s life. You will also see that Ms. Firgan-Hewie was, at times, regular in making her diary entries, and at other times was not so regular. So it is possible that the comment was made at a time when Ms. Firgan-Hewie was not writing regularly in her diary. It is also possible, of course, that Ms. Firgan-Hewie simply chose not to record the comment. Not everything in Ms. Firgan-Hewie’s life is recorded in the diary. That said, you might wonder about the absence of an entry in the diary respecting the threat. The theme of Ms. Firgan-Hewie’s diary is her personal relationships, and I suggest to you that it may be significant that she makes no mention of the comment: if it had been a serious threat, you might well think she would have mentioned it.

[7] You heard Ms. Liard testify that she was friends with Ms. Firgan-Hewie. She said that they became closer friends as the autumn wore on. You have evidence that they had texting addresses for each other: you saw Ms. Firgan-Hewie receive a text message from Ms. Liard while Ms. Firgan-Hewie was being interviewed by police. And you heard Racheal Miller confirm that Ms. Firgan-Hewie was friendly with Ms. Liard. This last point might seem significant to you: Ms. Miller and Ms. Liard did not care for each other, as both testified. Ms. Miller’s testimony was largely hostile to Ms. Liard. And yet she did agree with the defence on this point.

[8] I will return to this in more detail when I review the story with you. Here I note as follows. Such evidence as there is of this motive for murder is derived from Ms. Liard: things she said and wrote. Ms. Liard was not present in the room when Ms. Firgan-Hewie was killed. If the theory is that she would derive some sort of pleasure from inflicting pain and death on another person, then the manner of this killing would not have given her this pleasure: she was not there to see it. Second, the kind of killing described as being a “thrill” for Ms. Liard involved a protracted infliction of knife wounds. That did not happen here. Dr. Rose agreed that the wounds on Ms. Firgin-Hewie did not present as a ritual or enacted killing. This was a fast and frenzied attack, not a slow “cutting to pieces”. No

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doubt it is both macabre and disquieting that Ms. Firgan-Hewie was killed with a knife, echoing the statements attributed to Ms. Liard. But ask yourself what other correlations can you take as tying the killing to a disturbed inclination to torture and kill.

(b) Revenge Killing

[1] I suggest to you that there is only one piece of evidence that supports a motive of killing Ms. Firgin-Hewie for “revenge”: the statement or statements attributed to Ms. Liard that the girl in Mr. Lasota’s bedroom was the “girl who set him up to be killed”, or words to that effect.

[2] First, it is for you to decide of course, but I would suggest to you that if this was said at all, it was likely said once. As I indicated earlier, Mr. Dziura and Monika Lasota conferred extensively with each other about what had happened before they spoke with police. Monika Lasota places the statement at the time she returned to the house after having been outside the police station with Mr. Dziura. She testified the statement was made to her when Ms. Liard and Mr. Lasota was sitting on the steps and Mr. Dziura was in the car. Mr. Dziura said he could not hear what was said in the conversation at this time, but that Monika Lasota told him about it.

[3] Apart from this statement attributed to Ms. Liard, there is no evidence that Ms. Firgin-Hewie “set up” Mr. Lasota to be killed, or that Mr. Lasota or Ms. Liard thought she had set him up to be killed. Ms. Liard testified that Mr. Lasota was attacked as he was standing outside her residence having a cigarette. He was not lured to some place to be attacked, or otherwise “set up”. On Ms. Liard’s uncontradicted evidence, it does not appear that anyone “set up” Mr. Lasota in that sense, but rather that he was accosted in a place where he could regularly be found, in plain sight in his and Ms. Liard’s neighbourhood. On Ms. Liard’s evidence, Mr. Lasota believed he ghad been attacked by someone other than Gary Macdonald, but that Gary Macdonald instigated it.

[4] The Crown argues that Monika Lasota has no reason to lie about this statement. You might well agree with that submission: the statement could be damaging for both her brother and for Ms. Liard. But is she mistaken? Did she misunderstand what she was told? In considering this, consider all of the circumstances, and your assessment of Monika Lasota’s credibility. You cannot make up evidence or speculate where there is no evidence. But you may ask yourself if Monika Lasota misunderstood what was said, and in doing so you may consider how it could have been possible for her to have misunderstood. Bear in mind that, unless you

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consider the statement was also made separately in Mr. Dziura’s hearing, whether this appears to be the only basis in the evidence for a motive of revenge, and ask yourself if, on that basis, you are prepared to accept it.

Summary

[1] As I have told you, the Crown need not prove motive. How you approach and what you make of the evidence of motive is up to you. If you conclude that there is evidence of motive, whether of a “thrill kill”, or revenge, or both, you may consider this evidence, along with all the other evidence in deciding whether you are satisfied beyond a reasonable doubt that the killing of Ms. Firgan-Hewie was planned and deliberate.

Question 4(b): Was the Murder Committed as Part of a Series of Events that included Confining Ms. Firgan-Hewie Unlawfully?

[1] The Crown also alleges that Mr. Lasota committed constructive first degree murder of Ms. Firgan-Hewie. As I have told you, the Crown need not prove both “planned and deliberate” murder or “constructive murder” to prove Mr. Lasota guilty of first degree murder. Either theory, if proved, is sufficient.

[2] In the circumstances of this case, to establish constructive murder, the Crown must prove beyond a reasonable doubt:

(a) That Mr. Lasota unlawfully confined Ms. Firgin-Hewie; and

(b) That the unlawful confinement and murder of Ms. Firgin-Hewie were part of the same series of events.

[3] “Unlawful confinement” means, in this case, intentional confinement of Ms. Firgan-Hewie by Mr. Lasota.

[4] Mr. Lasota, of course, had no lawful authority to confine Ms. Firgan-Hewie. The issues, thus, are as follows:

(a) Did Mr. Lasota confine Ms. Firgin-Hewie;

(b) Did he do so intentionally; and

(c) Was the unlawful confinement part of the same series of events as the murder of Ms. Firgan-Hewie?

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[5] To intentionally confine another person is to physically restrain that person, contrary to her wishes, thereby depriving that person of her liberty to move from one place to another. Confinement is an unlawful restriction on liberty for some period of time.

[6] A confinement does not have to, but may include tying up someone’s hands or feet. The confinement must, however, be distinct from the murder itself. Physical domination as a result of a murderous attack is not a separate event from the murder itself.

[7] In this case, there is some evidence that Mr. Lasota may have placed a piece of furniture in front of his bedroom door. Mr. McGuire and Mr. Grill have reviewed that evidence with you, and I will not repeat what they have said in detail. You will recall their reference to the hanging paint chip, the area of the wall and door covered with luminal, and the evidence of Michelle Liard who said Mr. Lasota spoke to her from behind the “blocked” door, and Monika Lasota, who said Mr. Lasota actually stepped out into the hall.. It is for you to decide, based on all the evidence, or the lack of evidence, whether you are satisfied beyond a reasonable doubt that the door was blocked in this manner.

[8] If you are satisfied that the door was blocked in this manner, that does not end the issue. You would also have to be satisfied beyond a reasonable doubt that the door was blocked to confine Ms. Firgan-Hewie in the room. If Ms. Firgan-Hewie was already dead, or had been injured to the point where she could not leave because of her injuries, that does not constitute an unlawful confinement. For you to conclude that there was unlawful confinement, you would have to be satisfied beyond a reasonable doubt that Mr. Lasota blocked the door before Ms. Firgan-Hewie was seriously injured, and that he did so for the purpose of confining Ms. Firgan-Hewie.

[9] You may consider that the evidence could support the conclusion that Mr. Lasota blocked the door, not to confine Ms. Firgin-Hewie before she was killed, but to prevent others from entering the room after he had attacked her.

[10] You will recall the evidence of Ms. Liard about her conversation with Mr. Lasota through the blocked door. She testified that she heard distorted sounds, muffled screams, at the time she was speaking with Mr. Lasota. You could conclude from this that Ms. Firgin-Hewie was still alive. You could also conclude from this, given Ms. Liard’s and Monika Lasota’s evidence on what happened at the door at this time, that Ms. Firgin-Hewie

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was not actively attempting to leave the room at this time. It is for you to say, but you could conclude that Ms. Firgin-Hewie was badly injured at this time.

[11] While it is for you to say, if you are satisfied that beyond a reasonable doubt that Mr. Lasota illegally confined Ms. Firgin-Hewie before he killed her, I would suggest, given the short time frame, the unlawful confinement was part of the same series of events as the murder.

Summary

[1] If you are satisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Fergan-Hewie, and that he did so unlawfully, and that he did so with the intent for murder, but you are not satisfied that the murder was either planned and deliberate, or committed as part of a series of events that included Mr. Lasota unlawfully confining Ms. Firgan-Hewie, then you will find Mr. Lasota not guilty of first degree murder, but guilty of the lesser and included offence of second degree murder.

[2] If you are satisfied beyond a reasonable doubt that Mr. Lasota killed Ms. Fergan-Hewie, and that he did so unlawfully, and that he did so with the intent for murder, and you are satisfied that the murder was either planned and deliberate, or committed as part of a series of events that included Mr. Lasota unlawfully confining Ms. Firgan-Hewie, then you will find Mr. Lasota guilty of first degree murder.

Michelle Liard

[1] Michelle Liard is charged with first degree murder.

[2] On the facts of this case, there are only two verdicts available in respect to Ms. Liard: guilty of first degree murder, or not guilty. There is no available theory of the facts of this case by which Ms. Liard could be guilty of the lesser and included offences of second degree murder or manslaughter. Either she was a party to the planned and deliberate murder of Ms. Firgan-Hewie, or she was not a party to the planned and deliberate murder of Ms. Firgan-Hewie.

[3] Further, I have just instructed you on the law of constructive first degree murder. That theory is not available against Ms. Liard. Either she was a party to the planned and deliberate murder of Ms. Firgan-Hewie, or she is not guilty.

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[4] I will not repeat my analysis of the law and summary of the evidence on this issue that is set out in my consideration of these issues in respect to Mr. Lasota. That analysis and summary applies with equal force to Ms. Liard. In addition, you should consider the following points.

Motive

[1] You may consider the story written by Ms. Liard on the issue of motive. As I remarked during the trial, the story is a disturbing tale of violence and torture, in which the victim, a beautiful blonde woman, is wounded repeatedly with a knife.

[2] Ms. Liard testified that this is a work of fiction, based on two horror movies and themes reflected in “death metal” music, which she likes. It is, of course, no crime to like these kinds of movies and music, or to try to imitate them.

[3] The main characters in the story are named after Ms. Liard and Mr. Lasota. You may add to this that the third protagonist, Matte, was a person also known to Ms. Liard. There is no suggestion that Matte was involved in Ms. Firgan-Hewie’s killing. You may also note that the victim in the story is a person not known to the protagonists, and she is not named. She is, on the other hand, a beautiful blonde woman with light-coloured eyes, which you may consider as similar to Ms. Firgan-Hewie.

[4] The victim in the story is held in a motel room, not in a location associated with one of the protagonists. She is held in a bathroom, not a bedroom.

[5] The victim in the story is bound and gagged. The evidence before you suggests that Ms. Firgan-Hewie was not bound or gagged (although you may consider that her voice was muffled as argued by the Crown).

[6] The protagonists in the story torture the victim slowly and taunt her for the purpose of terrifying her. The killing appears to be a drawn-out process from which the protagonists appear to draw pleasure. The killing of Ms. Firgan-Hewie was fast, frenzied. Ms. Liard was not in the room at the time of the killing. There is no evidence that either Mr. Lasota or Ms. Liard appeared to take any pleasure out of the killing.

[7] The story is incomplete. There is an outline for the story, which is structured as a school exercise. The Crown argued that this is just camouflage, in case the story was discovered by Ms. Liard’s grandmother.

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That is possible, of course, but the camouflage goes well beyond a mis-labelling of the document. The outline is quite detailed, relative to the length of the story itself.

[8] Barbara Dixon testified and said she had never seen such a story in her long years as a teacher. But Ms. Dixon also testified that was not interviewed until 2011, long after the events in issue. She fairly acknowledged that her evidence could well be influenced by her knowledge that her former student had been arrested for the first degree murder of a 13 year old girl. And, of course, Ms. Dixon has no idea what was in Ms. Liard’s head, or, specifically, whether she wrote the story for school, or whether she ever would have handed it in. She did indicate that if she had received such a story from a student, she would have taken it to a vice-principal or guidance person, and you may take that evidence into account.

[9] As I told you when the story was introduced into evidence, you should approach it with caution. It is very disturbing, to be sure. But it is not a record of what happened here, not a confession, and the danger is that you would treat it as such.

[10] You may consider it, along with all the other evidence, of course, including the threatening statements about Ms. Firgan-Hewie allegedly made by Ms. Liard, as evidence of motive. It is up to you to decide what weight to place upon it.

Ms. Liard’s Statement to Police

[1] I have already given you instructions on how you may use Ms. Liard’s statement to police. I will not repeat them again here. You should consider that evidence, in the manner I have described, along with all the other evidence.

Post-Offence Conduct

[1] Post-offence conduct refers to what an accused person does after a crime has happened. I have already told you that post-offence conduct is not of assistance to you in considering the case against Mr. Lasota, assuming you are satisfied he is guilty of manslaughter. Post-offence conduct would not help you decide whether his offence is manslaughter, second degree murder, or first degree murder, since the post-offence conduct could reflect his awareness of his guilt of any of those offences.

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[2] The situation is different in respect to Ms. Liard. You may consider her post-offence conduct. The question you should ask is whether that conduct is consistent with the behaviour of a person who knows she is guilty, and inconsistent with the behaviour of a person who knows she is guilty of an offence. Ms. Liard’s post-offence conduct includes:

(a) Lying to Monika Lasota and saying “the girl’s gone home” after Mr. Lasota had told Ms. Liard that he “thought he’d killed Aleks”;

(b) Remaining silent while Mr. Lasota told his mother that “the girl’s gone home”;

(c) Washing Mr. Lasota’s clothes;

(d) Staying with Mr. Lasota for roughly 7.5 hours after Ms. Firgan-Hewie was killed;

(e) Running away from the Lasota house with Mr. Lasota.

[3] In considering the post-offence conduct, bear in mind, as well, the explanation provided by Ms. Liard for this conduct. She said she was in love with Mr. Lasota. She was under great stress and was not thinking properly. She had had a very difficult personal life, and her relationship with Mr. Lasota have been a time of greater happiness than she had known, and then suddenly it was all ending. She was suffering grief, loss, shock. She was forthright and direct with police about this in her statement to them. You should consider all of the evidence and circumstances in assessing what to make of the evidence of Ms. Liard’s post-offence conduct.

Summary

[1] If you are satisfied beyond a reasonable doubt that Ms. Liard knowingly participated in the planned and deliberate murder of Ms. Firgan-Hewie, then you will find her guilty of first degree murder.

[2] If you are not satisfied beyond a reasonable doubt that Ms. Liard knowingly participated in the planned and deliberate murder of Ms. Firgan-Hewie, then you will find her not guilty.

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POSITIONS OF CROWN AND DEFENCE

[1] You have just heard the closing submissions from counsel. They have all spoken well and set out their positions clearly. I will not reiterate their comments at length.

[2] The Crown argues that there was no reason for Mr. Lasota to spontaneously inflict such an attack on a defenceless girl. Therefore the reason must have been a pre-existing plan.

[3] If Ms. Liard purposefully told Ms. Firgan-Hewie to keep the meeting secret, got Ms. Lasota out of the house at the same time as the killing to remove her from earshot, intentionally by words and gestures attempted to prevent Mr. Dziura from entering the house and quickly lied to Ms. Lasota and Mr. Dziura after the killing, that “the girl’s gone home” – this is all conduct on her part that points to her participation in a plan to kill Ms. Firgan-Hewie.

[2] Mr. McGuire says that Mr. Lasota and Ms. Liard planned and deliberated in advance to kill Aleksandra Fergin-Hewie, and invited her to meet with them for the purpose of killing her. Mr. McGuire argues that they may have done this out of a desire to cause pain and death, a motive he says is reflected in statements made by Ms. Liard to Ms. Fergin-Hewie at the tunnel, in the presence of Kevin Martins, which, he argues, is confirmed by the evidence of Mr. Jacob. Mr. McGuire argues that this motive is also confirmed by the story written by Ms. Liard, which was found in the closet of her bedroom.

[3] Mr. McGuire also argues that the killing may have been for revenge. He points to a statement or statements attributed to Ms. Liard by Artur Dziura and Monika Lasota that Mr. Lasota was up in his bedroom with “the girl who set him up to be killed”. He argues that you may take from this statement that Ms. Liard and Mr. Lasota believed that Ms. Firgin-Hewie had facilitated the knife attack on Mr. Lasota a few days before Ms. Firgin-Hewie was killed.

[4] Mr. McGuire argues that you may also conclude that Mr. Lasota confined Ms. Firgin-Hewie unlawfully in his bedroom before and while he killed her. He points to the dangling paint chip on the door, and the testimony of both Monika Lasota and Michelle Liard, and asks you to conclude that the door to his bedroom was barred shut from the inside. He argues that Ms. Liard’s evidence that she heard “muffled screams” when

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she found the door blocked and spoke briefly to Mr. Lasota, as evidence that the door was blocked before Ms. Firgin-Hewie was killed, and not afterwards.

[5] Mr. Brodsky argues that you should have a reasonable doubt that Ms. Liard was a party to the killing of Ms. Firgin-Hewie. He argues that the evidence of a motive for a “thrill kill” is nothing more than a writing exercise that is unrelated to Ms. Firgin-Hewie’s death. He points to the dissimilarities between the story and Ms. Firgin-Hewie’s death. Unlike the victim in the story, Ms. Firgin-Hewie was not physically restrained before the attack. There is no evidence her arms or legs were bound. There is no evidence that she was gagged. Unlike the victim in the story, Ms. Firgin-Hewie was not tortured slowly. The evidence is clear that this was some sort of frenzied attack, which took place in a short period of time. If this was planned in advance, he argues, then it was planned very badly: Monika Lasota and Artur Dziura were home at the time. Teresa Lasota was expected home at around the time Ms. Firgin-Hewie was killed. There was no plan to dispose of Ms. Firgin-Hewie’s body. The killing took place in Mr. Lasota’s bedroom, which made it very difficult to truly clean up after the crime, as reflected in the mattress that is sodden in Ms. Firgin-Hewie’s blood. They had no plan to escape. When they did run from the Lasota home, Ms. Liard just went home, and Mr. Lasota ended up sleeping outside, in the yard of a women’s shelter.

[6] Mr. Brodsky asks you to believe Ms. Liard when she testifies that she did no more than wash Mr. Lasota’s bloody clothes, at his request, after Ms. Firgin-Hewie had been killed. He asks you to consider Ms. Liard’s demeanour during her police interview, where she freely admits to washing the bloody clothes, and explains herself when cautioned for being an accessory after the fact to murder. He asks you to consider her response when she is accused of first degree murder. Mr. Brodsky acknowledges that Ms. Liard had time to formulate a “story” before giving her interview, but argues that Ms. Liard’s statement is not a concoction: had she been devising a false story, she would not have been so candid about her continuing love for and attachment to a man she knew had committed a terrible crime the night before.

[7] Mr. Grill asks you to consider whether the Crown has proved the intent for murder. He argues that the Crown must prove the intent to murder, and that you may conclude that it has not done so on the evidence before you. Mr. Grill argues that the evidence of motive is weak, and that the overall circumstances do not support a conclusion that Mr. Lasota intended to kill Ms. Firgin-Hewie from the outset.

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[8] Mr. Grill argues that the evidence does not establish that Ms. Firgin-Hewie was confined illegally in Mr. Lasota’s room before she was killed. He argues that it is impossible to know that the door was blocked by the night table at any time, and that if it was, it is impossible to say when the night table was placed against the door. He argues that even if the jury concludes that the door was blocked, there is no evidence that it was blocked before the time of the killing.

[9] All counsel ask you to take a hard look at the evidence, and bring your good common sense to bear on it.

REASONABLE DOUBT REVISITED AGAIN

[1] Shortly after we started today, I provided you with the proper analysis for considering this case. I told you:

(i) If you believe Ms. Liard’s evidence that this was not a planned and deliberate murder, then you must find her not guilty.

(ii) Even if you do not believe Ms. Liard’s evidence in this regard, if it leaves you with a reasonable doubt about her guilt, you must find her not guilty.

(iii) Even if Ms. Liard’s evidence in this regard does not leave you with a reasonable doubt of her guilt, you may convict her only if the rest of the evidence that you do accept proves her guilt beyond a reasonable doubt.

(iv) As I have told you, these principles are the same and apply with equal force to Mr. Lasota in respect to the allegation that he committed a planned and deliberate murder. If you conclude that Ms. Liard is not guilty of a planned and deliberate murder, then you must also conclude that Mr. Lasota is not guilty of a planned and deliberate murder.

[2] The principle I have just explained does not apply to the other theories advanced against Mr. Lasota. That is, you may acquit Ms. Liard, but still find Mr. Lasota guilty of any of manslaughter, second degree murder, or constructive first degree murder. Of course, in respect to each

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of these, you may only find Mr. Lasota guilty of a crime if you are satisfied of his guilt beyond a reasonable doubt.

VERDICTS AND JURY DISCUSSIONSUSE OF VERDICT SHEET

[1] Included in the things that will go with you to the jury room are verdict sheets. On these sheets, I have listed the verdicts that you may reach in this case for each of Ms. Liard and Mr. Lasota. There is no significance to the order in which the verdicts are listed.

[2] If you reach a verdict, your foreperson should place a check mark in the box opposite the verdict you have reached. There is a place at the bottom of the sheet for the foreperson to sign, but we do not require a signature.

[3] The evidence and the issues raised in this case leave four verdicts for you to consider in respect to the charge against Mr. Lasota:

- Not Guilty

- Not Guilty of First Degree Murder but Guilty of the Lesser and included Offence of Manslaughter

- Not Guilt of First Degree Murder but Guilty of the Lesser and included Offence of Second Degree Murder

- Guilty of First Degree Murder

[4] The evidence and the issues raised in this case leave two verdicts for you to consider in respect to the charge against Ms. Liard:

- Not Guilty

- Guilty of First Degree Murder

RETURN OF VERDICT

[1] When you reach your verdicts, please tell the court constable that you have made your decision, but do not tell him/her what decision you have made. We will reconvene court and bring you back into the courtroom to hear your decision.

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[2] Your foreperson should bring the verdict sheet into court with him when we reconvene. It is the foreperson’s responsibility to turn over to me the completed verdict sheet and to announce your decision in court. As I have told you, you do not give reasons for your decision.

JUROR CONDUCT DURING DELIBERATIONS

[1] When you go to your jury room, your duty is to consult with each other and to deliberate with a view to reaching a just verdict. Your verdict must be based on the facts as you find them from all the evidence introduced at trial, and on the law that I have told you applies in this case.

[2] You will have several things provided for you during your deliberations. You will have the indictment that sets out the charges against Ms. Liard and Mr. Lasota. You will have five copies of my jury charge, so that you may consult it if you wish. You will have the exhibits. You will have the verdict sheets for your foreperson to complete once you have reached a verdict.

[3] When you begin your deliberations, you should not start out by emphatically expressing your opinion or declaring your intention to stand for a particular verdict no matter what others may think or say. To proceed like that makes it very hard for you to take into account the views and wisdom of your fellow jurors. Keep an open mind. Don’t just talk. Listen too. Put forward your own views in a reasonable way. Listen in a calm and impartial manner to what your fellow jurors have to say.

[4] Jurors are not advocates who have a duty, like the lawyers here, to argue the case for the Crown or for the defence, as the case may be. Jurors are judges. If you approach your deliberations calmly, putting forward your own views and listening carefully to what others have to say, you will be able to reach a just and proper verdict.

[5] The foreperson has the responsibility to chair the meeting, to guide deliberations, to prevent them from becoming protracted or descending into unnecessary repetition of matters already decided. Be firm in your leadership, but be fair to everyone.

REQUIREMENTS FOR VERDICT

[1] For there to be a verdict on each charge in this case, it is necessary for all twelve jurors to agree about the decision for that charge. In other

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words, a verdict, whether of not guilty or guilty, for each of Ms. Liard and Mr. Lasota, expresses the unanimous opinion of the jury.

[2] Sometimes jurors are unable to reach a verdict. Under our law, jurors have the right to disagree. No jury, however, will ever be in any better or different position to decide this case than you are now.

FINAL REMARKS[1] You have sworn or affirmed to well and truly try this case and to render a true verdict according to the evidence. If you honour that oath or affirmation, as I am sure you will, you will have done everything that is expected of you as jurors in this trial.

[2] Mr. Registrar, please swear or affirm the constables.

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