Confessions Rule: click here

Disbelieved versus fabricated statements

An alibi or other exculpatory statement that is merely disbelieved is not evidence that strengthens the Crown’s case. By contrast, “where the Crown adduces evidence from which the trier of fact can infer that the exculpatory statement was fabricated, that evidence is capable of supporting an inference of guilt”

The reason for distinguishing mere disbelief from a finding of fabrication relates to the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial

To establish fabrication, the trier of fact must rely on evidence that is independent of the evidence that contradicts or discredits the exculpatory explanation

While evidence that points to an accused person’s guilt may lead a trier of fact to reject an accused person’s statement as untrue, standing alone, direct evidence of guilt cannot be equated with fabrication.

Evidence of fabrication may emerge from the circumstances in which the disbelieved out-of-court statement was made… For example: 

  • the circumstances in which a false statement was made may show an intent to mislead the police or others or an intent to deflect suspicion from the maker of the statement or towards others:

  • The timing of the statement, for example that the accused provided the statement at a time when the police did not suspect or have any reason to suspect the involvement of the accused;

  • The scope of the exculpation provided by the statement; and

  • The degree of detail provided in the statement

 

R v Clause, 2016 ONCA 859 at paras 52 - 56, 61-62; R v MacIsaac, 2017 ONCA 172 at paras 47-48

Admissibility

A trial judge has a duty to consider the effect of the Crown’s allegation of fabrication on the admissibility of an accused’s statement. This duty persists even where the voir dire focuses on other issues relating to the statement, such as voluntariness or Charter compliance

Instruction to the Jury

First, the trier of fact must determine whether they believe or have a reasonable doubt about the truthfulness of the alibi.

Next, if the judge concludes that there is sufficient independent evidence of fabrication of an exculpatory out-of-court statement, “the judge should instruct the jurors that it is open to them to find that the accused fabricated the exculpatory version of events because he or she 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 case beyond a reasonable doubt”  

If, on the other hand, there is insufficient independent evidence of fabrication, the jury should be instructed to disregard any disbelieved exculpatory statement and decide the case on the balance of the evidence

It is essential for the trial judge to set out clearly the difference between evidence leading only to disbelief and independent evidence of fabrication. Where the fabrication instruction is given, the trial judge must “carefully outline what evidence is capable of constituting independent evidence

Co-Accused's Statement

A co-accused statement is inadmissible against an accused. When the Crown leads evidence of a statement made by one accused, the jury must be told that the statement is admissible only against the maker of the statement and cannot be considered in determining the co-accused’s culpability: R v John, 2016 ONCA 615 at para 35