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Evidence - Fabrication (3). R. v. E.C.
In R. v. E.C. (Ont CA, 2026) the Ontario Court of Appeal considers the evidentiary law relating to 'fabrication', and related jury charges:a. The legal principles regarding fabrication
[21] There are special rules that apply to a statement allegedly fabricated by an accused: R. v. U.K., 2023 ONCA 587, 168 O.R. (3d) 321, at para. 70. These rules are designed to avoid improperly shifting the burden of proof from the Crown to the accused: U.K., at paras. 70-71. As Doherty J.A. explained in R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 40 O.R. (3d) 198 (C.A.), at para. 15:If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused's guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events. [Citations omitted.] [22] In order to protect against these reasoning risks, before a jury can rely on an accused’s fabrication as evidence of guilt, there must be independent evidence of deliberate fabrication. The requirement of independent evidence exists in order to maintain the distinction between evidence that is disbelieved and evidence that is found to be fabricated. There must be evidence that the exculpatory statement was deliberately made for the purpose of avoiding liability: U.K., at para. 72, see also Coutts, at paras. 15-16; R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at para. 17.
[23] In order to ensure that a jury understands the special rules that apply to an accused’s fabricated statements, a trial judge’s jury instruction should, at the very least, explain: (a) the distinction between a disbelieved statement or evidence and a fabricated statement or evidence, and that mere disbelief has no evidentiary value; (b) that, to find that a statement or evidence is fabricated, the jury must find that there is independent evidence of fabrication; (c) what can constitute independent evidence of fabrication (and some review of relevant evidence); and (d) that, if the jury concludes that the statement of evidence is false, the jury must consider other explanations for the false statement or evidence before concluding that the statement of evidence was intentionally fabricated for the purpose of avoiding liability: U.K., at para. 96; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 117; and R. v. Oland, 2016 NBCA 58, [2016] N.B.J. No. 288, at paras. 69-73, leave to appeal refused, [2016] S.C.C.A. No. 188. . 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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