Law360 Canada (September 30, 2026, 11:58 AM EDT) --
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| John L. Hill |
A recent Ontario Court of Appeal decision provides useful guidance on the admissibility of dying declarations, evidence of fabricated statements and the circumstances in which a person being investigated for murder becomes psychologically detained by police.
In
R. v. Taylor, 2026 ONCA 565, the court dismissed Richard Scott Taylor’s appeal from his convictions for first-degree murder arising from the deaths of his mother and stepfather, Carla and Alan Rutherford. Taylor challenged the admission of statements he made to police, statements made by his dying stepfather and evidence concerning an allegedly fabricated knee injury.
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He also argued that he had been psychologically detained when he spoke to police and therefore had been entitled to the protections of ss. 10(a) and 10(b) of the
Canadian Charter of Rights and Freedoms. The court rejected all these arguments.
The case arose from a fire at Taylor’s mother and stepfather’s home at about 3:30 a.m. on July 9, 2018. Fuel had been poured near the foot of the bed in the primary bedroom and ignited. Taylor’s mother died, while his stepfather escaped through a window. The stepfather subsequently made several statements identifying his son-in-law, or someone named “Rich” or “Rick,” as responsible.
Those statements became important evidence at trial. One neighbour testified that the stepfather said, “Don’t call Rich, he did this.” Other witnesses heard references to “Rick,” “son-in-law” or “Rich.” A paramedic testified that the stepfather said his son-in-law was responsible because of “a lot of problems.” Another said he identified “family” as responsible and attributed the motive to “financial” problems. The stepfather died later that day.
Taylor argued that the statements were too unreliable to be admitted. The Court of Appeal disagreed.
At trial, the defence had conceded that the statements fell within the traditional hearsay exceptions for dying declarations and spontaneous utterances. The issue therefore became whether this was one of the rare cases in which statements falling within a traditional hearsay exception should nevertheless be excluded because they were so unreliable that their admission would be improper.
The Court of Appeal relied particularly on
R. v. MacKinnon, 2022 ONCA 811 and
R. v. Khelawon, 2006 SCC 57.
Khelawon establishes that the trial judge must be satisfied, on a balance of probabilities, that the hearsay is sufficiently reliable that contemporaneous cross-examination of the declarant would add little to the truth-seeking process. But
MacKinnon makes clear that reliability need not be established with absolute certainty.
Taylor argued that the references to “Rich,” “Rick” and “son-in-law” could have referred to different people. The Court of Appeal held that this concern went principally to the ultimate reliability of the evidence, which the jury was to determine.
The trial judge was entitled to consider the surrounding circumstances. Taylor was experiencing significant financial problems; “Rich” and “Rick” were similar names; and, unlike Taylor’s father, Taylor was the stepfather’s son-in-law. Viewed in context, the surrounding evidence narrowed the possible identification to Taylor.
The court also rejected the argument that uncertainty about whether the stepfather saw the person who started the fire rendered his statements inadmissible. Whether he had direct knowledge, was drawing an inference from his relationship with Taylor or was speculating was ultimately for the jury.
The decision cites
R. v. Nurse, 2019 ONCA 260 as authority for the proposition that a statement’s susceptibility to different interpretations does not necessarily destroy threshold reliability. The Court of Appeal therefore upheld the admission of the dying declarations.
Taylor also challenged evidence that he had exaggerated or fabricated a knee injury. He had told police that he had injured his knee falling downstairs and that the injury prevented him from walking downstairs or driving. Surveillance footage later showed him walking without a cane or apparent limp.
Taylor eventually admitted at trial that he had lied to police about the extent of his injury. He maintained, however, that he had done so because he knew he was innocent and wanted police to stop investigating him.
Justice Toni Skarica told Taylor in a Hamilton court, “You’re a monster, and you should never see the light of day. … You threw that match.”
The Court of Appeal considered
R. v. O’Connor, (2002), 62 O.R. (3d) 263 (C.A.). That case establishes that where the Crown relies on an accused’s out-of-court statement as evidence of fabrication, evidence independent of the accused’s mere disbelief must support the conclusion that the statement was a lie. However, failing to conduct that analysis is not necessarily fatal.
The court found no reversible error in Taylor’s case. His statements were made outside the courtroom, rather than in testimony before the jury, reducing the risk that the jury would mistake disbelief for affirmative evidence of guilt. Further, the circumstances made it clear that the Crown intended to challenge the alleged injury.
Independent evidence also supported a finding of fabrication. Taylor was seen using a cane and displaying a pronounced limp around police, while video evidence showed him walking normally on other occasions. The court held that this evidence could support the conclusion that his statements were not merely false but deliberately fabricated. The trial judge had also properly instructed the jury to distinguish between disbelief and fabrication.
The most significant Charter issue concerned Taylor’s interactions with police on July 9 and 10.
On July 9, police asked Taylor and his father to attend the police station. They were told they were under investigation for first-degree murder. They were also told they were free to leave, were not required to provide statements and could consult a lawyer. Nevertheless, Taylor argued that, viewed objectively, he was psychologically detained.
The governing authority is
R. v. Grant, 2009 SCC 32. Detention includes a significant physical or psychological restraint on liberty. Psychological detention may arise when police conduct would lead a reasonable person in the accused’s circumstances to conclude that they had no choice but to comply. The court also relied on
R. v. Lafrance, 2022 SCC 32,
R. v. Le, 2019 SCC 34 and
R. v. Joseph, 2020 ONCA 73.
The test is objective. The court considers the circumstances of the encounter, police conduct and the accused’s personal circumstances, asking how a reasonable person in that situation would have perceived the interaction.
Grant,
Lafrance and
R. v. Suberu, 2009 SCC 33 are central to that analysis.
The Court of Appeal found no error in the trial judge’s conclusion that Taylor had not been detained. Police had told him that they suspected him of murder, but they also told him that he did not have to answer questions and could leave. The July 10 encounter was even more significant: Taylor approached the police vehicle himself after his wife had spoken with the officers. The officers had not planned to interview him and were surprised when he entered the vehicle.
The fact that police suspected Taylor and questioned him did not, by itself, establish psychological detention. What mattered was how police acted on those suspicions. The court found nothing coercive or improper in their conduct.
The decision matters because it shows that the Charter concept of psychological detention remains fact-specific. Police suspicion alone does not transform a voluntary conversation into a detention. At the same time, the decision reinforces that the analysis must be based on the totality of the circumstances and viewed objectively.
The decision also illustrates the distinction between threshold reliability and ultimate reliability in hearsay cases. Evidence may be sufficiently reliable to reach the jury even though there are legitimate questions about exactly what the declarant meant. Those questions may properly be left to the jury rather than used to exclude the evidence entirely.
Finally, the treatment of the knee-injury evidence reinforces an important safeguard concerning fabricated statements. A jury cannot simply reason that because it disbelieves an accused, the accused must have fabricated his account. Independent evidence must support a finding of fabrication. In Taylor’s case, the surveillance evidence and other circumstances supplied that evidentiary foundation.
The Court of Appeal’s unanimous conclusion was therefore that the trial judge made no reversible error in admitting the challenged evidence, instructing the jury or determining that Taylor had not been psychologically detained. The convictions remained intact.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). His most recent book, Acts of Darkness
(Durvile & UpRoute), was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book.
Contact him at johnlornehill@hotmail.com.
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