Ontario Criminal


Evidence

HEARSAY
Trial judge did not err in finding that interview statement was spontaneous

Accused’s boyfriend, L, killed complainant in his bedroom with knife while accused was standing outside residence with friend. Thirteen hours after complainant was killed, police interviewed accused about killing. Nearly six hours into interview, police informed accused that she was being charged with first degree murder, and she replied that she was innocent (“interview statement”). At accused’s trial, trial judge admitted interview statement as spontaneous out-of-court statement made when first confronted with accusation of crime. Accused was acquitted. Crown appealed. Appeal dismissed. Trial judge did not err in finding that accused was first confronted with accusation of committing crime during her police interview. Members of accused’s family confronted L and accused about what had happened to complainant and asked accused if he had killed her, but they did not accuse L of participating in murder. Trial judge did not err in finding that interview statement was spontaneous. Considerations supporting this finding included that trial judge expressly considered 13-hour gap between offence and interview statement and that he had advantage of comparing accused’s trial testimony to her police interview. Trial judge did not rely on presumption of innocence to wrongly assume that presumptively innocent person can never anticipate being confronted with charge of premeditated murder. Trial judge only said that in assessing whether interview statement was spontaneous, he could not presume that accused and L planned and executed murder and thus had time to concoct story. Appellate cases relied on by Crown on issue of spontaneity were distinguishable, since in those cases issue of spontaneous statement was not raised at trial. Trial judge did not err by failing to excise part of accused’s police interview before it was shown to jury. Editing out and isolating part of accused’s police interview would likely have undermined jury’s ability to assess probative value of interview statement.

R. v. Liard (Jun. 9, 2015, Ont. C.A., John Laskin J.A., Gloria Epstein J.A., and K. van Rensburg J.A., File No. CA C55410) 123 W.C.B. (2d) 550.

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