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| John L. Hill |
Picard was convicted by a jury on Oct. 24, 2018, of the first-degree murder of Fouad Nayel. The murder occurred on June 17, 2012, at a remote hunt camp west of Ottawa. Nayel was shot in the head with a shotgun, and his body was found months later buried off Norton Road.
The Crown’s theory was that Picard lured Nayel to the location under the pretense of buying marijuana but intended to rob and kill him. Picard then returned to Ottawa, disposed of Nayel’s belongings with the assistance of his brother and sister-in-law, and later moved the body to another burial site.
Picard’s testimony acknowledged key facts: driving Nayel, using his gun, taking Nayel’s marijuana, and disposing of
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At trial, the judge excluded testimony from Picard’s lawyer regarding his initial post-arrest account, deeming it an inadmissible prior consistent statement. The jury was instructed on several potential verdicts, including manslaughter, second-degree murder and first-degree murder. Two possible routes for a first-degree murder conviction were outlined: (1) a planned and deliberate killing as argued by the Crown, or (2) constructive first-degree murder based on an alleged kidnapping and killing during a robbery, per s. 231(5)(e) of the Criminal Code.
Picard appealed his conviction and maintained that he had been wrongfully convicted. He asserted that two men had taken his shotgun, murdered Nayel, and warned him that he and his family would be harmed if he reported the incident to the police. He stated that he had informed his first lawyer about this before a letter containing confirmatory information was sent to the police. He wished for that lawyer to testify, but the lawyer’s statement was deemed inadmissible as self-serving.
On appeal, Picard challenged the exclusion of his statement to the lawyer and the instructions given to the jury by the trial judge under s. 231(5) of the Criminal Code, which states that first-degree murder can result from committing or attempting to commit certain other offences, such as kidnapping, regardless of whether the murder was planned and deliberate. He also questioned the adequacy of the jury instructions.
The appeal was dismissed (R. v. Picard, 2025 ONCA 417). The court found that there was a sufficient evidentiary basis for the jury to convict under s. 231(5). Whether Picard was the one who pulled the trigger, he delivered Nayel to the person who did and became a co-principal in the murder (R. v. Harbottle, [1993] 3 S.C.R. 306). When an accused becomes an executioner’s henchman, second-degree murder can be raised to first-degree (R. v. Brown (2002), 160 O.A.C. 141 (C.A.), leave to appeal refused).
As well, the trial judge acted appropriately in excluding the lawyer’s testimony.
The jury instructions, when considered in full, were sufficient and equipped the jury to understand the legal requirements for such a conviction. Generally, prior consistent statements made by a witness are inadmissible because they are self-serving, add no new information and may unfairly enhance credibility through repetition. As stated in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), merely repeating a fabricated story doesn’t make it more credible.
An exception exists when the statement is introduced to counter a claim of recent fabrication. According to cases like R. v. Kailayapillai, 2013 ONCA 248, R. v. Vassel, 2018 ONCA 721 and R. v. K. (S.), 2019 ONCA 776, three conditions must be satisfied:
1. The statement must align with the witness’s in-court testimony;
2. It must have been made after the events in question;
3. It must have been made before the alleged motive to fabricate arose.
2. It must have been made after the events in question;
3. It must have been made before the alleged motive to fabricate arose.
A mere suggestion in cross-examination that a witness is lying isn’t sufficient. The opposing party must assert a specific motive and the time when the fabrication allegedly began. This allows the prior consistent statement to demonstrate that the story remained unchanged before any motive to lie arose (R. v. Stirling, 2008 SCC 10).
Whether the exception applies depends on the context of the case, the evidence and the conduct of the trial. An explicit allegation isn’t necessary; the circumstances must suggest an implied claim of contrivance.
Ultimately, the trial judge must strike a balance between probative value and prejudicial effect. Given that these statements risk improperly enhancing credibility, they are handled with caution. When the trial judge applies the correct legal standards, appellate courts typically defer to their discretion.
The Appeal Court gave this deference and found that the judge’s ruling did not give rise to reversible error. The conviction stands.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. 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) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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