R. v. U.K., 2023 ONCA 587
what you need to know
-An important summary of the difference between “disbelief” and “fabrication”, and legal instructions for out-of-court and trial evidence of the accused
background & FACTS
The appellants appeal from their convictions of one count each of sexual assault. The events at issue occurred during a party in a hotel room. The Crown’s position at trial was that the complainant did not consent to sexual contact with either appellant, and in any event, was too intoxicated to have the capacity to consent to sexual contact.
The appellants each testified that their sexual contact with the complainant was consensual, based on her active participation in the sexual acts. They testified that although she had consumed alcohol, she appeared to be fine and was responsive. The defence theory was that the complainant went to the party, drank alcohol to the point of intoxication but not incapacity, and engaged in consensual sex. Once she became sick and an ambulance was called – and her parents notified – she fabricated that the sexual contact was non-consensual, and claimed flashback memories out of embarrassment.
ISSUES ON APPEAL
The appellants raise four grounds of appeal.
First, they argue that the trial judge erred in instructing the jury on fabrication as post-offence conduct capable of constituting circumstantial evidence of guilt in the absence of independent evidence of fabrication. Relatedly, they argue that even if some instruction on fabrication was justified, the instruction contained numerous errors – primarily omissions – that rendered it inadequate and erroneous.
Second, they argue that the trial judge erred in his instructions to the jury on the principles from R. v. W.(D.), by lumping together the evidence of both appellants for application of the reasonable doubt standard to credibility, when they were entitled to individual assessments. They also argue that the trial judge erred in the W.(D.) instruction by treating the defence evidence, including defence witnesses besides the appellants, as an all-or-nothing proposition for the application of the reasonable doubt standard to credibility.
Third, they argue that the trial judge erred in the caution he gave pursuant to R. v. Vetrovec regarding the evidence of the witness B.C. by failing to give a caution which treated him as a mixed witness, who gave both inculpatory and exculpatory evidence.
Finally, R.P. argues that the trial judge erred in his instructions to the jury regarding the defence of honest but mistaken belief in communicated consent by conflating his position with that of U.K. R.P. argues that the evidentiary foundation for the defence of honest but mistaken belief in communicated consent differed between himself and U.K.
Disposition - Appeal allowed; New trial ordered.
Although the appellants raised four grounds of appeal, the appeal was granted on the basis of the first two grounds of appeal: namely, the instruction on fabrication and the instruction on W.(D). As a result, this summary will focus on those two grounds of appeal.
Disbelief v. Fabrication
A statement or evidence by an accused person found to have been deliberately fabricated is a type of post-offence conduct. The law distinguishes between statements or testimony by an accused which are merely disbelieved (and therefore rejected) and statements which are found to be fabricated in an effort to avoid culpability. This distinction is essential in maintaining the burden of proof on the Crown in cases where statements are tendered or an accused testifies.
A disbelieved statement has no evidentiary value, whereas a statement found to be fabricated in effort to avoid liability may be considered as circumstantial evidence of guilt. It is not disbelief of an accused’s evidence that may provide circumstantial evidence of guilt. Rather, it is the attempt to deceive, through fabrication or concoction, that supports an inference of an intent to avoid liability which in turn may provide circumstantial evidence of guilt.
There must be independent evidence of fabrication before a trial judge may instruct a jury that they may consider deliberate fabrication by an accused for the purpose of avoiding liability as circumstantial evidence of guilt. The requirement of independent evidence of fabrication exists in order to maintain the distinction between statements or evidence which are merely disbelieved and statements or evidence which are found to be fabricated. Independent evidence in this context means evidence beyond disproving the exculpatory statement. There must be evidence that the exculpatory statement was deliberately made for the purpose of avoiding liability.
Out-of-Court Statement vs. Trial Testimony
What can constitute “independent evidence of fabrication” differs where the alleged fabrication relates to the testimony of an accused at trial, as opposed to an out-of-court statement.
Where the allegation of fabrication relates to an out-of-court statement, independent evidence of fabrication may be found in the circumstances in which the statement was made, including the timing, as well as its logical implausibility, level of detail, or internal inconsistencies in the statement.
Where fabrication of trial evidence is alleged, however, what may be considered as evidence of fabrication is more restricted. Unlike for out-of-court statements, where there is an allegation of fabrication of trial evidence, the circumstances surrounding the testimony, such as logical implausibility or internal inconsistencies, cannot constitute independent evidence of fabrication. Before an adverse inference may be drawn, there must be evidence capable of showing fabrication apart from both the evidence contradicting the accused’s testimony and the fact that the accused is found to have testified falsely at trial. For example, this might include evidence from another witness that the accused attempted to persuade them to lie about the accused’s whereabouts at the time of the offence.
Where there is independent evidence of fabrication of either a statement or trial evidence, a trial judge must properly instruct the jury.
Application to this Case
The trial judge erred in instructing the jury that they could consider whether the appellants’ evidence (i.e., their testimony at trial) was fabricated in the absence of independent evidence of fabrication. Although there was a sufficient evidentiary basis to instruct the jury on fabrication in relation to the portion of each of their police statements about the complainant “chugging” Hennessy after the sexual contact, the instruction given by the trial judge went beyond that and extended to their trial evidence.
There was no independent evidentiary basis for an instruction that either appellant fabricated his trial evidence. Neither appellant testified at trial that he had seen the complainant drinking alcohol after the sexual encounter. The detail of the complainant “chugging” Hennessy after the sexual contact, which the Crown alleged was fabricated to avoid liability, was only in the police statements.
This error was prejudicial: giving a fabrication instruction about the appellants’ trial evidence, in the absence of independent evidence of fabrication of their trial evidence, undermined the presumption of innocence and the burden of proof on the Crown.
It did so by allowing disbelief of the appellants’ trial evidence to be used as positive evidence of guilt. Even if the jury disbelieved the appellants’ evidence (and other defence evidence) and was not left in a reasonable doubt by it, they were still required to consider whether the evidence they did believe satisfied them beyond a reasonable doubt of the guilt of either or both appellants under the third branch of W.(D.). By extending the fabrication instruction to the appellants’ trial evidence, the trial judge opened the possibility for the jury to use a rejection of the appellants’ evidence as positive evidence of guilt that they could weigh on the scale in favour of the Crown. Doing so in the absence of an independent evidentiary foundation that the appellants’ trial evidence was fabricated is reversible error.
Other Deficiencies in the Fabrication Jury Charge
Quite apart from the trial judge’s error in giving the jury an instruction that went beyond the allegation of fabrication of the portion of the appellants’ police statements, the instruction he provided to the jury contained significant errors which require a new trial. These errors were for the most part errors of omission – but omissions which were significant and prejudicial.
A jury instruction regarding an allegation that a statement or trial evidence is fabricated should at least include 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); and,
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.
The instruction in this case was deficient in a number of ways: (1) the trial judge failed to instruct on the difference between an exculpatory statement that is disbelieved and an exculpatory statement found to be deliberately fabricated to avoid culpability; (2) the trial judge failed to explain to the jury what evidence was capable of constituting independent evidence of fabrication; and, (3) the trial judge failed to instruct the jury that they may only make a finding of fabrication and consider it as circumstantial evidence of guilt if they find that the fabricated statement was deliberately made for the purpose of avoiding liability for the offence and not for some other reason.
W.(D.) Jury Instruction
The appellants argue that the trial judge erred in the instruction to the jury on the principles from W.(D.) in two ways. First, they argue that the instruction incorrectly suggested to the jury that they had to believe or find a reasonable doubt on the collective defence evidence to acquit. Second, they argue that the instruction failed to convey to the jury that each accused was entitled to an acquittal if reasonable doubt about his guilt flowed from the in-court testimony of his co-accused.
The purpose of an instruction on the principles from W.(D.) is to explain to the jury how the reasonable doubt standard and the Crown’s burden of proof applies in the context of conflicting testimonial accounts. The instruction must make clear to the jury that their task is not to decide whether they accept the Crown evidence or the defence evidence, as a binary choice or credibility contest. The instruction is intended to make clear to the jury that they need not believe exculpatory defence evidence in order to acquit an accused, but rather, that they must acquit if the defence evidence (or some portion of it) leaves them with a reasonable doubt.
The principles in W.(D.) extend beyond the evidence of the accused. They apply to other exculpatory defence evidence, and also to evidence favourable to the defence in the Crown case, about which the trier of fact must make credibility findings. In cases where there is exculpatory defence evidence other than the testimony of the accused (or evidence in the Crown’s case which is exculpatory if believed or raising a reasonable doubt), the instruction must be modified to make clear to the jury that it is not necessary for them to believe the evidence in order to acquit; rather, it is sufficient that the evidence (viewed in the context of the evidence as a whole) leaves them with a reasonable doubt.
It is a basic principle of criminal liability that in a joint trial, the trier of fact must consider the liability of each accused individually. This principle applies to instructions given to a jury on the principles from W.(D.). It is an error for a trial judge in a joint trial to conflate two (or more) accused for the purposes of a W.(D.) instruction.
Application to this Case
Although the sexual contact of each appellant with the complainant was closely linked by time and context, the act alleged against each appellant to constitute the offence was distinct. By treating the appellants as a unit in the W.(D.) instruction, the instruction misdirected the jury to consider their assessment of credibility in the context of the reasonable doubt standard for the appellants together, rather than individually for each appellant.
For more information on “jury instructions” check out Emond’s “Modern Criminal Evidence”, chapters 2, 10, 7, 4 and 14.