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Evidence - Fabrication (3). R. v. Taylor
In R. v. Taylor (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against "convictions for first-degree murder in connection with the deaths of his mother and stepfather".
Here the court considered issues regarding evidence required to establish fabrication:[36] In R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), this court held that where the Crown relies on an accused’s out-of-court statement as evidence of fabrication, there must be evidence, independent of the mere disbelief of the accused, capable of proving the lie. A failure to conduct that analysis, however, is not necessarily fatal: O’Connor, at paras. 29-30.
[37] That omission is not fatal here. First, as in O’Connor, the admissibility of the appellant’s police statements was addressed on a voluntariness and Charter voir dire, and the appellant did not object to the Crown’s intention to rely on those statements as evidence of fabrication. Second, the impugned statements were the appellant’s out-of-court statements, not his trial testimony. And, as this court explained in O’Connor, at para. 25, such statements do not carry “the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown.” Third, from the outset it was apparent that the appellant’s claimed injury was going to be challenged as fabricated. This was clear from the circumstances surrounding the January 2019 statement, when the appellant was directly confronted with evidence suggesting that his leg injury was feigned.
[38] Nor did the trial judge err in instructing the jury on this issue. The appellant’s claim that his injury made it impossible for him to commit the offences was closely tied to his assertion that he was not at his mother’s home when the fire was set. In that context, it was open to the trial judge to describe the appellant’s statements as asserting both that he was elsewhere when the fire was set and that, because of his leg injury, he was physically incapable of setting it. The trial judge did not misdirect the jury on the appellant’s alibi.
[39] The trial judge also correctly directed the jury to distinguish between disbelief and fabrication and identified the evidence relevant to deciding whether the appellant’s statements were fabricated. In any event, there was clear evidence that the appellant had dishonestly attempted to deflect suspicion from himself, which was capable of satisfying the threshold described above. On that record, it was open to the jury to find that the evidence of the appellant’s use of a cane and pronounced limp in the presence of police, taken with the video evidence of him walking normally on other occasions, constituted independent evidence that supported the conclusion that his statements were not merely false but fabricated. In light of the evidence and the parties’ submissions, which were fairly and accurately summarized by the trial judge, that distinction would have been well understood by the jury. There is no reversible error.
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