Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Al-Enzi, 2021 ONCA 81,February 5, 2021, at paragraphs 38 to 41:

In Canadian law, there is a well-established distinction between an exculpatory statement by an accused that is disbelieved, and one that is determined to have been fabricated or concocted to avoid culpability: R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38. The importance of this distinction lies in the fact that, while a statement that “is merely disbelieved is not evidence that strengthens the Crown’s case”, a statement that has been deliberately concocted can be capable of supporting an inference of guilt: O’Connor; at para. 38. In other words, where the Crown can prove that an accused’s exculpatory statement was not simply untrue, but an intentional fabrication, the trier of fact is entitled to draw an inference that the accused lied to conceal their guilt.

However, in order to prove an intentional fabrication, the Crown must adduce evidence of that fabrication, independent of the evidence that contradicts or discredits the exculpatory statement: Wright, at paras. 40-41; O’Connor, at paras. 21-22; R. v. Laliberté, 2016 SCC 17, [2016] 1 S.C.R. 270, at paras. 3-4. Put differently, the 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. This point was also recently made by this court in the case of R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47, where the court stated: “Independent evidence of concoction can, however, 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. For example, where an accused has made contradictory exculpatory statements, the self-contradiction of an accused may constitute independent evidence of fabrication: see R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17.” This requirement ensures that the Crown is made to prove an accused’s guilt beyond a reasonable doubt, and that mere disbelief of an accused does not automatically lead to a guilty verdict: O’Connor, at para. 20, citing R. v. Coutts (1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at pp. 551-552, leave to appeal refused, [1998] S.C.C.A. No. 450.

Where the exculpatory statement is made out of court, independent evidence of fabrication may emerge from the evidence of the circumstances in which the statement was made. Such evidence will necessarily be case and fact specific. Some examples of such evidence are “pre-arrest exculpatory statements that are specific and detailed” or “post-arrest statements that are inherently implausible”: Wright, at para. 48.

Where such independent evidence of fabrication exists, these principles should be made clear to the trier of fact. In particular, the following should be communicated:

1) the trier of fact may, but does not have to, disbelieve the accused’s exculpatory statement;

2) if they disbelieve the statement, is there other, independent evidence upon which they may, but do not have to, find that the accused fabricated the exculpatory statement;

3) if, on the basis of the independent evidence, they do not find that the accused fabricated the statement, they must ignore the statement and treat it as if it had never been given;

4) by contrast, if they do find that the accused fabricated the statement, they may consider the reason why the accused fabricated the statement, including whether it was to conceal their involvement in the offence(s) charged. This determination must be made in light of all the evidence.