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Evidence - Fabrication (2). R. v. Osei-Tutu
In R. v. Osei-Tutu (Ont CA, 2026) the Ontario Court of Appeal considered the evidentiary issue of 'fabrication', here assessing the need for a fabrication jury charge:[27] I am of the view that the absence of a fabrication instruction with respect to Mr. Osei-Tutu’s statements to the CBSA officer did not compromise his right to a fair trial.
[28] The trial judge summarized the Crown’s argument in the charge as follows:Mr. Osei-Tutu attempted to conceal his trip to Trinidad when he arrived in Canada. The Border Services officer asked where he traveled to, whether he traveled to any country other than the Bahamas, and he said no two times. When asked whether the bags in his possession were the same ones that he traveled from Canada with, he said yes and did not mention the new suitcase he purchased in Trinidad. When asked to empty his pockets of all the contents, he did not remove the Trinidad and Tobago currency. [29] The Crown argues that no fabrication instruction was required based on caselaw from this court that an accused’s conduct during border screening may be circumstantial evidence with respect to their knowledge of the offence. The Crown relies in particular on R. v. Tomlin, 2014 ONCA 357, at para. 11, where this court said that:It defies common sense to suggest that a trial judge may not take into account a deliberately false declaration made at the very same time as the act of importing is taking place, in assessing the credibility of the accused or as a piece of circumstantial evidence bearing on the events. In these circumstances, the false declaration did not amount to after-the-fact conduct, in our view, and need not have been subjected to the “other possible explanations” analysis [.] [30] Tomlin is distinguishable, in my view. Mr. Tomlin admitted that he lied on his customs declaration. Mr. Osei-Tutu never admitted to fabrication. He testified that he was forgetful or misunderstood the CBSA officer’s questions. He denied that he consciously attempted to deceive her.
[31] As held in R. v. Iqbal, 2021 ONCA 416, 406 C.C.C. (3d) 208, at para. 52, “a trier of fact cannot use their rejection of an accused’s testimony as a piece of circumstantial evidence to convict in the absence of independent evidence that the testimony was deliberately fabricated or concocted to avoid culpability”. It is the accused’s attempt to deceive, rather than the disproved statement itself, that supports an inference of guilt. Fabrication must therefore be proved by evidence that is independent of the evidence that contradicts or disproves the exculpatory statement: 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.
[32] Given the requirement for independent evidence of fabrication, it would have been appropriate for the trial judge to caution the jury that it could not infer Mr. Osei-Tutu’s guilt simply because it disbelieved his explanation for his conduct and statements during the CBSA screening.
[33] Even where a fabrication instruction is required, however, its absence is not necessarily a reversible error. The fundamental question on appeal 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; Al-Enzi, at para. 43. Where a trial judge fails to advert to independent evidence of fabrication, “an appellate court may assess whether the record reveals sufficient such evidence to show that the trial judge’s omission did not prejudice the appellant”: Iqbal, at para. 69, citing R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at paras. 48-50; Polimac, at para. 106; R. v. Selvanayagam, 2011 ONCA 602, 281 C.C.C. (3d) 3, at paras. 31-33.
[34] Here, there was ample independent evidence on which the jury could find that Mr. Osei-Tutu deliberately lied to the CBSA officer. As stated in R. v. Anderson, 2025 ONCA 408, 177 O.R. (3d) 241 (leave to appeal refused, [2025] S.C.C.A. No. 389; [2025] S.C.C.A. No. 390), at para. 60:[3]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. […] Examples of this type of evidence include the degree of detail provided in the out-of-court statement; its inherent implausibility; or internal inconsistencies[.] [Footnotes and citations omitted.] [35] Furthermore, as this court observed in Polimac, at para. 106: “an instruction that highlighted the circumstances that would support a finding of fabrication were the jury to find inaccuracies in the appellant’s statements may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case”. Had the trial judge given a fabrication instruction, she would have had to highlight the inconsistencies in and implausibility of Mr. Osei-Tutu’s explanation of his conduct during the CBSA screening. This may explain why no fabrication instruction was requested by his trial counsel. . R. v. Morris
In R. v. Morris (Ont CA, 2026) the Ontario Court of Appeal considered 'motive to fabricate', here in a criminal jury charge context:a. The Issues
[27] The principal submission on appeal is that the jury did not receive the required assistance from the trial judge concerning motive, resulting in a charge that was fatally unbalanced.[3] The submission has several interrelated parts.
[28] First, the appellant submits that the second paragraph of the Motive instruction was flawed, and that this flaw was accentuated by the myths and stereotypes instruction. In cross-examination, a motive to fabricate was suggested to N.B. – to get the appellant out of the lives of his family, and thus, please his stepfather. Crown counsel referred to this in his closing address as something he expected defence counsel to argue. According to the appellant, the jury should have been told they could consider whether N.B. had a motive to fabricate and should have been given guidance on that task in accordance with R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 53. An essential part of that guidance is that the defence has no onus to show a motive to fabricate, and the lack of an apparent motive to fabricate does not enhance credibility. Instead, the effect of the trial judge’s instruction was that the jury was told not to consider whether N.B. had a motive to fabricate and was not told that the lack of an apparent motive to lie did not enhance N.B.’s credibility.
[29] Second, the appellant argues that the first paragraph of the Motive instruction invited the jury to consider the appellant’s motive to commit the offences as “one of the many things for you to consider as you determine whether [the appellant] is guilty.” This was an error, according to the appellant, as there was no evidence of a motive on the part of the appellant. The Crown’s suggestion, in closing argument, that either the appellant had a desire to engage in sexual acts with pre-teen boys or not,[4] was an improper invitation to engage in a prohibited line of reasoning. But the trial judge did not tell the jury not to consider the Crown’s statement, rather, according to the appellant, the instruction invited the jury to do so, as the Crown’s improper statement was the only suggestion of a motive of the appellant for the jury to refer to.
b. Discussion
[30] An appellate court is to adopt a functional approach when reviewing jury instructions for legal error. It must direct its review to the ultimate function of instructions, which is to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence. A properly equipped jury is one that is “both (a) accurately and (b) sufficiently instructed”: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 37. The overriding question in the appellate assessment of jury instructions is whether they fulfilled that function: Abdullahi, at paras. 34-37.
[31] In addressing that question, it must be borne in mind that the accused is entitled to a properly instructed jury, not a perfectly instructed one. The charge must be read as a whole; it must be considered in the context of the trial as a whole; and its substance (rather than adherence to any prescribed formula) is what matters: Abdullahi, at para. 35.
[32] The question of whether the jury was accurately instructed is an “inquiry [into] the overall understanding of a given issue in the mind of the jury”, considering the charge as a whole: Abdullahi, at paras. 39, 41. Where the instructions contain both correct and problematic statements about the same issue “[t]he organization of the charge and the placement of alleged inaccuracies within it will inform the overall accuracy of the charge”: Abdullahi, at para. 42.
[33] The sufficiency of an instruction involves two related questions: first, was the instruction required because it is mandatory in every case, or due to the circumstances of the particular case (a contingent instruction) and, second, if an instruction was required, was it given in sufficient detail: Abdullahi, at para. 46. When a particular instruction is required, it is an error of law to omit it: Abdullahi, at para. 49. Whether a required instruction has been given in sufficient detail must be assessed in the context of the charge as a whole: Abdullahi, at para. 53. The question is whether enough, not whether all, has been said to sufficiently equip the jury with what it needs to consider: Abdullahi, at para. 56.
[34] Counsel’s closing arguments may be relevant to the assessment of the instructions. On the one hand they may fill gaps in the judge’s review of the evidence, although they cannot replace an accurate and sufficient instruction on the law by the trial judge, from whom the jury has been told to take the law. On the other hand, sometimes an argument of counsel, or a problematic statement, will support the need for the trial judge to give a specific instruction to the jury or to tell them to disregard counsel’s statement: Abdullahi, at paras. 63-65.
[35] The failure of counsel to request a specific inclusion in the instruction, or to object to what has been included, can be a relevant consideration, but it is not determinative, as the responsibility for the charge lies with the trial judge: Abdullahi, at para. 67. Counsel’s silence may reinforce the conclusion that a contingent instruction was not required, or that, when read as a whole, the charge was accurate. Counsel’s silence may be particularly significant where the decision not to object was tactical: Abdullahi, at paras. 68-69.
i. The Motive to Fabricate Instruction
[36] The motive to fabricate instruction in this case was as follows:[s]imilarly, in deciding this case, a motive to fabricate by the complainant [N.B.] is not one of the essential elements in this case which needs to be established in deciding the guilt or innocence of the [appellant]. You do not need to answer the question “why would [N.B.] lie” or find that he had no motive to fabricate in deciding this case. [37] The appellant argues that this instruction was flawed because it essentially told the jury not to consider whether N.B. had a motive to fabricate, and they were not told that the absence of an apparent motive to fabricate did not enhance N.B.’s credibility.
[38] I do not accept that there was any basis on which the jury should have been instructed to consider whether N.B. had a motive to fabricate. Neither L.L. nor R. v. Reves, 2025 ABCA 5, 81 Alta. L.R. (7th) 238, relied on by the appellant, support that submission.
[39] In L.L., this court was concerned with a case in which “[s]everal witnesses gave evidence about the complainant’s relationship with the [accused] and about the possibility that she had a motive to fabricate”: at para. 22. Both counsel addressed the jury about whether the complainant had a motive to fabricate: L.L., at paras. 27-30. In particular, in his closing submission in L.L., Crown counsel had commented on the absence of motive to fabricate, stating that lack of motive “is a critical factor in [the jury’s] deliberations”, and asserting that “this woman had no motive to lie”: L.L., at para. 30. As this court observed, the Crown’s comments in closing created two problems – they suggested the lack of motive to fabricate had been proven (an assertion the evidence did not support) and they created a risk that the jury would conclude that the complainant must be telling the truth if there was no demonstrated motive to lie.
[40] The trial judge’s instructions in L.L. did not address the problems created by the trial Crown’s closing, but simply pointed out that it was for the jury to determine whether a motive to fabricate had been established. The instructions also did not address how the jury should treat a failure to demonstrate a motive to fabricate.
[41] Against that backdrop this court held that the trial judge should have cautioned the jury against attributing undue weight to the absence of evidence of a motive to fabricate. In particular, the corrective instruction should have addressed:. the difference between absence of apparent motive and proven absence of motive;
. that it was open to the jury to find an absence of any apparent motive to fabricate on the part of the complainant;
. that absence of apparent motive to fabricate is one of many factors to consider in assessing the credibility of the complainant; and
. that the accused has no obligation to prove a motive to fabricate and the onus remains on the Crown throughout to prove guilt beyond a reasonable doubt. [42] Reves was also a case in which counsel for the accused had argued to the jury that the complainant had fabricated the allegations and Crown counsel had responded that the complainant had no motive to lie. The Alberta Court of Appeal set aside the conviction and ordered a new trial, holding that the trial judge’s instructions were deficient in two respects. First, they did not include a warning that absence of evidence that the complainant had a motive to fabricate did not equate to evidence that she was telling the truth, and second, they did not include an instruction that raising the possibility of fabrication does not shift the burden of proof to the appellant. The absence of an objection at trial from the accused’s counsel to this aspect of the jury instruction was not determinative.
[43] This case is substantially different. A motive to fabricate was not argued to the jury, nor was there a basis in the evidence to suggest the possibility of one.
[44] Crown counsel did not argue that N.B. had no motive to lie; he did not argue that the jury should take an absence of a motive to lie (proven or apparent) into account as an indicator of N.B.’s credibility. This was reflected in the trial judge’s summary of the Crown’s theory to the jury, which did not posit that N.B. lacked a motive to lie. Although Crown counsel did anticipate, in his closing address to the jury, that the defence might suggest that N.B. had a motive to fabricate to please his stepfather, defence counsel did not do so when he addressed the jury. To the contrary, he expressly told the jury that they need not answer N.B.’s rhetorical question “why would I make this up?” and he asked the trial judge to instruct the jury that they should not answer that question.
[45] There was also no evidentiary basis for the jury to consider a possible motive to fabricate. Although defence counsel asked N.B. whether he had ever discussed with his stepfather a desire to get the appellant out of their lives, or a concern that the appellant was usurping his stepfather’s role, N.B. denied that there were any such discussions.
[46] Given the absence of any argument by the defence at trial that there was a possible motive to fabricate, and the absence of any reliance by the Crown on the lack of a motive to fabricate, the trial judge did not err by instructing the jury, in accordance with the defence request, that they should not consider a motive to fabricate – they should not answer N.B.’s rhetorical question, “why would I make this up?”
[47] In the circumstances this raises two further questions. First, was it incumbent on the trial judge to go further and instruct the jury that the absence of apparent motive to fabricate is one of many factors to consider in assessing the credibility of the complainant (as in L.L.), or second, was it incumbent on the trial judge to warn the jury that lack of motive to fabricate did not equate to evidence that N.B. was telling the truth (as in Reves)? As noted, in those cases, absence of a motive to fabricate was relevant, because it was argued to the jury in each case that such absence was significant.
[48] The rationale for the explanations given in L.L. and Reves was simply not present here. In this case, no one suggested to the jury that there was any significance to the absence of a motive to fabricate – the jury was warned away from the issue entirely. Accepting the appellant’s argument would mean that a detailed motive to fabricate instruction should be given to the jury in every case. That is not the law.
[49] Moreover, it is the substance of the instruction, read as a whole, rather than adherence to any formulaic wording, that matters. In defence counsel’s closing address to the jury, after telling the jury they need not answer N.B.’s “why would I make this up” question, he went on to say that he expected the trial judge would instruct them that lack of an apparent motive to lie did not enhance “truth or reliability”. But importantly, he added that the jury should instead “ask [themself] the proper question which is this. Given the inconsistencies and the other features of the evidence, is it reliable enough for me to be sure that [the appellant] committed these offences?”
[50] The trial judge’s charge directed the jury to exactly that “proper question”. It reviewed both the defence theory of inconsistencies and gaps in the evidence and the Crown’s theory of why N.B.’s evidence held together. It reminded the jury that the burden was on the Crown and the appellant did not have to prove anything. It also gave guidance on the assessment of credibility and reliability – guidance that did not suggest that the lack of an apparent motive to lie enhanced N.B.’s credibility or reliability.
[51] In these circumstances, the absence of an objection to the wording of the motive to fabricate instruction is telling – it is an indicator that, when read as a whole, the charge was accurate on the issue of motive to fabricate.
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ii. The Motive to Commit the Offences Instruction
[55] The trial judge’s instruction informed the jury that the appellant’s motive was not an essential element of the offences with which he was charged, but that motive was one of the things that the jury could consider in determining whether the appellant was guilty. The charge did not go on to say that the Crown alleged a particular motive or point to any evidence of what might constitute a motive for the jury to assess.
[56] As the Supreme Court explained in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 130-132, in most cases the Crown need not prove the accused had a motive, as it is not an essential element of the offence. In such cases:the necessity of charging a jury on motive falls along a continuum. At one end of the continuum are “cases where the evidence as to identity of the [offender] is purely circumstantial and proof of motive on the part of the Crown so essential that reference must be made to motive in charging the jury”. At the other end of the continuum are cases where there is a proven absence of motive. In such cases, the trial judge must charge on motive, as the proven absence of motive is ordinarily an important factor favouring the accused.
But between these two poles, “the necessity to charge on motive depends upon the course of the trial and the nature and probative value of the evidence adduced”, and “[i]n these cases, a substantial discretion must be left to the trial judge”. Moreover, “motive is always a matter of fact and evidence and, therefore, primarily for the judge and jury rather than the appellate tribunal” and trial judges “must be given reasonable latitude” in charging the jury. Accordingly, the trial judge’s decision as to whether to charge on motive “should not be lightly reversed”. In addition, trial judges have discretion as to how to deal with issues relating to motive, and “there is no formula that must be followed”. [Emphasis in original; citations omitted.]
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