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Evidence - Fabrication. R. v. Picard
In R. v. Picard (Ont CA, 2025) the Ontario Court of Appeal consideration the evidentiary doctrine of 'fabrication':(d) Legal principles governing the recent fabrication exception
[64] A witness’ prior consistent statement is generally inadmissible because it lacks probative value and may irrationally bolster the witness’ credibility. As explained in R. v. Divitaris (2004), 2004 CanLII 9212 (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28:A prior consistent statement … is viewed as a form of self-serving evidence. It is considered (a) unhelpful because it adds nothing new to the evidence, and (b) potentially dangerous, because it may mislead the trier of fact into thinking that because a person said the same thing on more than one occasion, it is more likely to be true. On the contrary, a concocted statement, repeated on more than one occasion, remains concocted. [Reference omitted.] [65] Exceptionally, a prior consistent statement may be admissible if it serves to rebut an allegation of recent fabrication: R. v. Kailayapillai, 2013 ONCA 248, 115 O.R. (3d) 363, at paras. 40-41, leave to appeal refused, [2014] S.C.C.A. No. 35; R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 125. In R. v. S.K., 2019 ONCA 776, 148 O.R. (3d) 1, at para. 152, Tulloch C.J.O. (concurring) identified three preconditions for admitting a prior consistent statement on this basis:(i) the prior consistent statement must be consistent with the testimony it is offered to support;
(ii) the witness must have made the statement after the event the witness is testifying about; and
(iii) the statement must predate the point in time when the opposing party claims the witness first adopted the version of events to which the witness is testifying at trial. [66] A cross-examining party may suggest that a witness is lying without triggering the exception. If the party merely suggests that the accused is lying to avoid conviction, there is no allegation of recent fabrication because there is no suggestion that an event other than the accused’s perpetration of the crime gave rise to a motive to fabricate: Kailayapillai, at para. 44; Vassel, at para. 124. The opposing party must identify a point in time that gives rise to a motive to fabricate, to show that “the witness’s story was the same even before a motivation to fabricate arose”: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.
[67] In determining whether an opposing party’s position opens the door to the exception, a trial judge must analyze the circumstances of the case, the evidence of the witnesses called, and the conduct of the trial: S.K., at para. 154; see also R. v. O'Connor (1995), 1995 CanLII 255 (ON CA), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 290–295, leave to appeal refused, [1995] S.C.C.A. No. 460. “Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made — it is sufficient that the circumstances of the case reveal that the ‘apparent position of the opposing party is that there has been a prior contrivance’”: Stirling, at para. 5, quoting R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, at p. 643.
[68] As is true whenever considering admissibility of contested evidence, the trial judge must weigh its potential probative value and prejudicial impact, that is, the judge must consider to what extent admitting the prior consistent statement will give rise to the danger that underpins the general rule that such statements are inadmissible. As noted earlier, that danger is that the statement will enhance the witness’ credibility because the witness said the same thing previously: see R. v. M.C., 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 60
[69] Assuming that the trial judge applied the correct legal principles, a ruling on the admissibility of a prior consistent statement is entitled to some deference: S.K., at para. 156; R. v. Stapleton, 2003 BCCA 444, 185 B.C.A.C. 304, at para. 11. In weighing the factors for and against admissibility, the trial judge has the best grasp of the parties’ positions at trial and has heard their submissions as well as the viva voce evidence at the voir dire. . R. v. Anderson
In R. v. Anderson (Ont CA, 2025) the Ontario Court of Appeal dismissed criminal appeals by two defendants, here for convictions for attempted murder.
The court considers the adequacy of a jury charge, here regarding 'fabrication' [paras 58-60 are from a dissent, but are adopted by the majority at para 117]:(a) Legal principles
[58] Where an accused makes an exculpatory statement that the trier of fact does not believe, this rejection of the truthfulness of the statement on its own does not assist the prosecution in proving its case. As stated by Arbour J. in R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 62, “[e]ven if an alibi is advanced by the accused himself and is rejected, the finding that the alibi is untrue cannot serve to corroborate or complement the case for the prosecution, let alone permit an inference that the accused is guilty.”
[59] Where, however, a trier of fact concludes that the accused fabricated an exculpatory statement, the fabrication is a form of post-offence conduct that may serve as circumstantial evidence of guilt: R. v. U.K., 2023 ONCA 587, 168 O.R. (3d) 321, at para. 71; R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at para. 17. It is the accused’s attempt to deceive, rather than the disproved statement itself, that supports an inference of guilt. Fabrication must be proved by evidence that is independent of the evidence that contradicts or disproves the exculpatory statement: U.K., at para. 72. “[T]he Crown must not only adduce evidence that disproves the exculpatory statement, but also adduce independent evidence that proves that the exculpatory statement was made for the purpose of deflecting guilt from the accused”: R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at para. 39, leave to appeal refused, [2023] S.C.C.A. No. 35.
[60] In the context of out-of-court exculpatory statements (as opposed to statements made at trial), independent evidence of fabrication may consist of the circumstances in which an exculpatory statement was made, including its timing and whether it was made when the police did not suspect or have any reason to suspect the involvement of the accused.[4] It may also be found “in the very content of the impugned statements, depending on the context in which they were made. Independent, in this sense, means that the evidence of concoction is separate from the evidence of guilt, not necessarily separate from the statements themselves”: R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47; Al-Enzi, at para. 39. Examples of this type of evidence include the degree of detail provided in the out-of-court statement; its inherent implausibility; or internal inconsistencies: R. v. Carignan, 2021 ONCA 496, at para. 41, citing O’Connor, at paras. 24-31 and R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 48; see also U.K., at para. 77.
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[117] At paras. 58-60 above my colleague has correctly set out the applicable legal principles that govern when an after-the-fact out-of-court statement of an accused, if disbelieved, can be used as evidence of guilt: it is for the trier of fact to determine whether the statement is not only disbelieved, but also whether it was fabricated for the purpose of misleading the police or deflecting suspicion: R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at para. 26. If satisfied that the accused fabricated a statement, the trier of fact can consider the fabrication together with all the other evidence to determine whether the Crown has proven the accused’s guilt beyond a reasonable doubt.
[118] Where the Crown proposes to use an exculpatory statement of an accused as evidence of guilt at a jury trial, the first step is for the trial judge to determine whether there is independent evidence of fabrication: in other words, whether there is evidence indicating fabrication apart from evidence which contradicts or discredits the accused’s version of events: O’Connor, at para. 35. As my colleague explains, independent evidence of fabrication of an out-of-court statement may consist of the circumstances in which the statement was offered, including its timing and whether it was made when the police did not suspect the involvement of the accused in the offence, as well as the content of the impugned statement itself.
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[121] Once a trial judge has determined that there is independent evidence of fabrication, the judge should instruct the jury on how to approach this issue. It is important that the jury understand that there is a difference between mere disbelief of an exculpatory statement (in which case the statement should be disregarded) and a fabricated or concocted exculpatory statement, which may be considered as evidence of guilt: O’Connor, at paras. 36-38. In its recent decision in R. v. U.K., 2023 ONCA 587, 168 O.R. (3d) 321, at para. 96, this court, after reviewing the authorities, summarized the elements of an “O’Connor instruction”, stating as follows:The jurisprudence establishes that instructions to a jury regarding an allegation that a statement ... is fabricated should include at least the following:. An explanation of the distinction between a disbelieved statement or evidence and a fabricated statement or evidence, and that mere disbelief has no evidentiary value;
. An explanation that in order to find that a statement or evidence is fabricated, the jury must find that there is evidence of fabrication independent of the evidence which discredits or contradicts the accused’s version of events;
. An explanation of what is capable of constituting independent evidence of fabrication (and some review of the relevant evidence);
. That if the jury concludes that the statement or evidence is false, the jury must consider other explanations for the false statement or evidence before concluding that the statement or evidence was intentionally fabricated for the purpose of avoiding liability. The trial judge should review the relevant evidence of other explanations. [122] The failure to provide an “O’Connor instruction” that does not include all the suggested elements will not necessarily constitute a reversible error on appeal. The issue is whether, in the context of the case as a whole, the instruction given caused prejudice to the accused’s right to a fair trial: R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 106, leave to appeal refused, [2010] S.C.C.A. No. 263; R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at para. 43, leave to appeal refused, [2023] S.C.C.A. No. 35.
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[130] The fabrication instruction followed Watt’s model jury instruction in explaining that there was “a big difference between disbelief of a version of events and fabrication of that same version of events” and that “evidence that [would lead the jury] only to disbelieve a version of events is not independent evidence that the version of events was fabricated.” The essential instruction that was properly conveyed was that it would be insufficient for the jury to simply disbelieve the exculpatory statements, and that they would need to conclude based on evidence other than that which satisfied them that the statements were false, that the statements were concocted, before they could conclude that there was fabrication and use that as evidence of guilt.
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[145] .... The requirement for independent evidence of fabrication is based on the same premises as a W.(D.) instruction – the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events, ensuring that the Crown’s duty to prove guilt beyond a reasonable doubt is respected: R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 40 O.R. (3d) 198 (C.A.), at p. 203, leave to appeal refused, [1998] S.C.C.A. No. 450. As Simmons J.A. observed in R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, “[t]he distinction between mere disbelief and a finding of fabrication is based on the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof where statements from an accused are tendered, or the accused testifies”: at para. 39. In this case, the appellants’ exculpatory statements were relied on by the defence for their truth; as such, the trial judge also provided two W.(D.) instructions both before and after the fabrication instruction. Both treated the statements as facially exculpatory and properly instructed that the exculpatory statements could be a source of reasonable doubt on the issue of the shooters’ identity even if they were not believed. The W.(D.) instructions in this case ensured that the jury would not “equate disbelief of the appellants’ version of events with guilt … and from there to proceed automatically to a guilty verdict.”
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