The Use of Fabricated Out-of-Court Exculpatory Statements
There is a distinction between an out-of-court
exculpatory statement that is disbelieved and therefore rejected and such a
statement found to be concocted or deliberately fabricated. The former has no
evidentiary value. The latter can constitute evidence from which an inference
of guilt may be drawn.
In order to constitute a fabricated out-of-court
statement, disbelief of the statement by the trier-of-fact is not sufficient;
there will need to be independent evidence of concoction. In R. v. Hafeez, 2016 ONSC 769, for
instance, the need for evidence of concoction was satisfied as the accused admitted
in testimony that he told out-of-court lies to the police about material
issues.
The
Disbelieved Statement
In analyzing the evidentiary value of a disbelieved
statement, the court will need to have regard to the content of what it is that
is disbelieved and the connection of the disbelieved statement to the offence
charged.
R. v. O’Connor,
(2002) 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at paras. 17 and 18.
The
Deliberately Fabricated Statement
An out-of-court statement that is fabricated (and not
simply disbelieved) is a form of after-the-fact conduct that merits a
further specific instruction as to its use.
It may constitute circumstantial evidence that assists
the trier of fact in determining whether the charge has been proven beyond a
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.
R.
v. Coutts, (1998) 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d)
545 (Ont. C.A.), at pp. 551-552.
The
need for independent evidence of fabrication
It is only where there is independent evidence of
fabrication that a false out-of-court statement is capable of supporting an
inference of guilt.
In some cases, there will be clear independent evidence
of concoction. In R. v. Hazel, 2009
ONCA 389 (CanLII), 95 O.R. (3d) 241, at para. 13, the accused admitted that he
lied to an insurance adjuster about a material fact. The court held that it was
for the jury to decide what weight to give the explanation for the lie. If the
jury rejected the explanation for this fabrication, that would be a significant
piece of circumstantial evidence.
Jury
Instruction
Where a judge concludes that there is independent
evidence of fabrication of an exculpatory out-of-court statement, the judge
should instruct the jury that it is open to them to find that the accused
fabricated the exculpatory explanation because he was conscious of having done
what is alleged and that they may use that finding together with other evidence
in deciding whether the crown has proven the accused guilty beyond a reasonable
doubt.
O’Connor,
at para. 37, and R. v. Bradley, 2015
ONCA 738 (CanLII) at para 174.
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