Decisions of the Court of Appeal

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide:

486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b)     on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1)       Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. U.K., 2023 ONCA 587

DATE: 20230911

DOCKET: C68076 & C69590

Nordheimer, Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

U.K. and R.P.

Appellants

Mark C. Halfyard and Teodora Pasca, for the appellant U.K. (C68076)

John Rosen and Amy Ohler, for the appellant R.P. (C69590)

Emily Marrocco, for the respondent

Heard: March 30, 2023

On appeal from the convictions entered on November 6, 2019, by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a jury.

 

Copeland J.A.:

 

Introduction

[1]          The appellants appeal from their convictions for one count each of sexual assault, contrary to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The events at issue occurred during a party in a hotel room. Although the acts alleged against each appellant were closely linked in time and context, the case went to the jury on the basis that the acts were separate, with no issues about party liability.

[2]          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.

[3]          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.

[4]          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.), [1991] 1 S.C.R. 742, 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, [1982] 1 S.C.R. 811, 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.

[5]          I would allow the appeal and order a new trial. In my view, the trial judge erred in the scope and content of the instruction on fabrication as post-offence conduct capable of constituting circumstantial evidence of guilt, and in his instruction on the principles from W.(D.).

[6]          Regarding the fabrication instruction, there was sufficient independent evidence to instruct the jury that they could consider whether a portion of each of the appellants’ statements to police was fabricated for the purpose of avoiding liability. If the jury so found, after considering alternate explanations, they could consider these statements as circumstantial evidence of guilt. However, the trial judge erred by providing an instruction that extended to considering whether the appellants’ trial evidence was fabricated, and if the jury so found, using that as circumstantial evidence of guilt. There was no independent evidence of fabrication to give this instruction regarding the appellants’ trial evidence. Further, the instruction given was unfair because it went beyond the instruction requested by the Crown, which was only in relation to a portion of the appellants’ statements to police.

[7]          The instruction on fabrication also contained significant omissions. As I explain below, the omissions constituted non-direction amounting to misdirection.

[8]          Regarding the W.(D.) instruction, the trial judge erred by conflating the evidence of both appellants, undermining their right to each have the case against them assessed individually. Further, the instruction erroneously conveyed that the defence evidence was to be treated as an all-or-nothing proposition and that the jury could have a reasonable doubt based on defence evidence only if they accepted all of the defence evidence.

[9]          These errors were prejudicial. It would not be appropriate to apply the curative proviso. This case turned on the jury’s assessment of the credibility (and to some extent the reliability) of the witnesses at trial, including the appellants. The errors go to the heart of the tools given to the jury to assess credibility against the reasonable doubt standard.

[10]       It is not necessary to address the remaining grounds of appeal.

Evidence at trial

[11]       As noted above, this case turned on the jury’s findings about the credibility, and to some extent reliability, of the various witnesses at trial. As this was a jury trial, there are no explicit findings of fact. Consequently, I summarize the evidence of the main witnesses as context for the issues raised on appeal. I refer to the witnesses by initials because of the ban on publication of the complainant’s identity or information that could serve to identify her.

(i)         The Complainant’s evidence

[12]       The complainant testified that J.C., who she described as an “acquaintance” from high school, told her by text about a party taking place the evening of July 17, 2017, and mentioned various people who would be there.[1] Before the party, the complainant went to J.C.’s house and borrowed an outfit to wear. They then went to the home of another acquaintance, E.S. At E.S.’s home they waited for U.K. and S.[2] to pick them up to drive them to the party. The complainant knew S. from her high school. She testified that she did not know U.K., but knew of him because he attended the same high school.

[13]       The complainant testified there were around 10 people at the party when she arrived. At the party she consumed alcohol. She testified that she had her first drink of the night at the hotel 20 minutes after arriving – about four shots or more of Hennessy straight out of the bottle. The party moved out onto the roof of the hotel (which some witnesses also referred to as the “balcony”).[3] The complainant testified that at this point she was feeling tipsy. On the roof she drank “a lot” of Hennessy, “like a couple of cups.” At one point, a group of people (including the complainant, but neither appellant) took group photos in the bathroom mirror (some of these photos were made exhibits at trial).

[14]       The party moved into the living room. The complainant testified that she was sitting on the couch, and felt “really dizzy, and like sick”, but continued to drink, finishing what was left in a bottle of Ciroc vodka with J.C. As she sat on the couch, the complainant told J.C. that she was going into the bedroom to lie down.

[15]       People slowly started coming into the bedroom, including J.C., E.S., U.K., and S. The complainant described her level of intoxication at this point as an 8 out of 10, which slowly increased to 10 out of 10.

[16]       U.K. lay down on the bed beside her. She heard someone say, “[U. – using the appellant U.K.’s first name] let her give you head”. U.K., then lying on his back, pulled her head toward him and forced her to perform oral sex. After 5 to10 minutes of forced oral sex while everyone else watched, U.K. told R.P. (who had at this point entered the room) to “take her”.

[17]       The complainant testified that R.P. “came out of nowhere”, dragged her across the bed, and pulled off her pants and underwear. Someone said, “Let’s give them privacy” and people started to leave the room. R.P. tried to have intercourse with her. She tried to tell him to stop but because she was drunk, she was mumbling, and she did not think that he heard her. She thought that at some point “he realized, oh shit, like something’s wrong with her”, and then she “sat up on the bed and started throwing up”. She said that she began vomiting after the appellants left the room.

[18]       The complainant testified that she did not know R.P. prior to that evening.

[19]       The complainant had no memory of what happened next. She woke up in the hospital with her family gathered around her bed. A police officer was also present.

[20]       The complainant testified that she did not tell the police the next morning (July 18, 2017) that anything had happened to her sexually at the party because she was not fully aware of what had happened. She started getting flashbacks of what happened that night over the next few days.

[21]       The complainant had no memory of A.S. (discussed below) being in the bedroom during the sexual contact. Her memory was that A.S. left the party earlier with another boy.

(ii)         The Evidence of B.C.

[22]       B.C. was called by the Crown. He had also testified at the preliminary inquiry. Aspects of his trial evidence were inconsistent with his preliminary inquiry evidence. The Crown was permitted to cross-examine B.C., pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. Following cross-examination of B.C. by Crown counsel, the Crown sought to have B.C.’s evidence from the preliminary inquiry admitted for the truth of its contents. The trial judge granted that application. At the request of all parties, in the final instructions, the trial judge gave the jury a Vetrovec caution in relation to B.C.’s evidence. This summary of B.C.’s evidence is based on his preliminary inquiry evidence.

[23]       At the preliminary inquiry, B.C. testified that the hotel party was in his honour, because he had recently been released on parole. He began drinking in the hotel room around 3:00 p.m.[4] and smoked six to eight grams of marijuana over the course of the night. He admitted that he drank to excess and conceded that he might have an alcohol problem. That night, he drank until he vomited. He admitted that his level of intoxication that night had affected his memory.

[24]       B.C. remembered U.K. arriving with three girls. He saw the complainant do shots when she arrived at the party. B.C. did not spend much time with the complainant. He only recalled seeing her when she arrived and later taking pictures in the bathroom. He did not remember seeing her out on the roof, where he spent most of the evening.

[25]       B.C. recalled that U.K. and the complainant went into the bedroom together. A.S. and R.P. joined them a little while later. J.C. and E.S. went downstairs to smoke marijuana with another male (A.C.).

[26]       A few minutes later, B.C. heard moaning coming from the bedroom. He thought it sounded like people “enjoying” sex, so he turned the music up louder. A few minutes later, J.C., E.S., and A.C. returned from smoking marijuana. A.S. then walked out of the bedroom. She was followed by U.K. and R.P. B.C. could see the complainant on the bed vomiting. She was lying on her stomach, naked from the waist down, her underwear on one thigh.

[27]       J.C., E.S., and A.C. took the complainant by the arms and helped her to the washroom. The complainant was gagging like she needed to vomit again. B.C. was pretty sure that E.S. and A.C. helped the complainant get dressed. E.S. came out of the bedroom and began to yell. B.C. told R.P. to call an ambulance. R.P. asked, “Why?” B.C. said, “Bro, call an ambulance, she’s puking in there.” R.P. then called an ambulance.

(iii)      The Evidence of U.K.

[28]       U.K. learned of the party through a friend. He messaged J.C. and E.S. and invited them. J.C. asked if she could bring the complainant. U.K., his friend S., J.C., E.S., and the complainant drove to the party together. U.K. was not drinking before the party. He purchased a bottle of Smirnoff Ice vodka cooler on the way. They arrived at the party around 10:00 p.m.

[29]       Upon arriving at the party, U.K. went out on the roof to have a cigarette. He also had a shot of Hennessy.

[30]       U.K first saw R.P. about 20 minutes after arriving, on the roof, making out with A.S.

[31]       U.K. testified that at some point a group of people went into the bathroom to take photos. Neither U.K. nor R.P. were in the bathroom for the photos.

[32]       U.K. testified that after the group finished taking pictures in the bathroom, he came inside from the roof, went into the bedroom, and lay down on the bed. He was going through music on his phone, as he was in control of the speakers (over Bluetooth). There were other people in the bedroom at the time, including J.C., E.S., S., and the complainant. He testified that the complainant whispered something to J.C. She then climbed on top of him, straddling him, and started to touch his groin over his clothing. This lasted 10 to 15 seconds. He told the complainant to “chill out”, but she did not reply.

[33]       He then got up, left the bedroom, and went into the living room. In the living room, he drank a shot of Ciroc vodka and roughly half of the Smirnoff Ice cooler he had brought to the party. He danced a little, and then went back out onto the roof for not more than 10 minutes. Once back inside, he saw R.P. and A.S. making out in front of the bedroom window.

[34]       U.K. testified that after he came back in from the roof, he went back into the bedroom and lay down on the bed. He was lying on his back, going through his music playlist on his phone. The complainant came back into the bedroom, unbuckled his belt, undid his pants, and exposed his penis. J.C., E.S., S., and possibly others were in the bedroom. J.C. asked the complainant what she was doing and told her to stop. The complainant did not respond. U.K. heard someone say something along the lines of, “Let her give you head.” The complainant then performed oral sex on him for a few minutes. He did not notice anything unusual about the complainant. She looked “fine.” U.K. testified that he saw R.P. and A.S. on the roof watching as the complainant gave him oral sex.

[35]       R.P. came into the bedroom with A.S., and the two of them started making out on the bed. U.K. believed, based on the position of A.S.’s head, that she was performing oral sex on R.P. At this point, R.P. asked the group if they would like to have a “foursome”. A.S. and U.K. verbalized that they would. The complainant rolled over and began to give oral sex to R.P. U.K. started kissing A.S. She performed oral sex on him. A.S. and U.K. then tried to have vaginal intercourse, but he could not maintain an erection. U.K. described his level of intoxication as “in the middle” drunk – neither drunk nor sober. He later left the bedroom.

[36]       U.K. testified that he did not see R.P. and the complainant have intercourse, but he saw R.P. digitally penetrate her and heard her moaning, as if she was enjoying herself. U.K. denied ever saying to R.P., “[R.P. – using his first name], take her”.

[37]       U.K. testified that he heard about the complainant vomiting 5 to 10 minutes after he left the bedroom. He was on the roof having a cigarette. He saw two women arguing with E.S. through the window about the complainant vomiting. He came inside to try to diffuse the argument. He saw the complainant throwing up on herself on the bed. She was not wearing pants. He thought she was really drunk and needed to go to the hospital. She could not stand on her own. He mentioned this to S.  E.S. yelled at him that the complainant was just sick and did not need to go to the hospital. U.K. left the hotel before first responders arrived. He estimated that he left the party shortly after 12:00 a.m.

[38]       U.K. did not see the complainant drinking on the roof, but did see her “chug” alcohol throughout the evening.

(iv)        The Evidence of R.P.

[39]       R.P. arrived at the party at 6:00 or 7:00 p.m. He testified that he drank a lot, a mix of everything. He did not keep track of how much he drank. He recalled U.K., U.K.’s friend S., J.C., E.S., and the complainant arriving around 10:00 p.m.

[40]       R.P. testified that he had been making out on the roof with A.S. for a long time, when he looked in the bedroom window and saw U.K. and the complainant on the bed. It looked like the complainant was giving U.K. oral sex. A.S. saw this as well. They joked about it together.

[41]       R.P. and A.S. went into the bedroom. R.P. did not remember anyone else in the room (besides himself, A.S., U.K., and the complainant). R.P. and A.S. made out on the bed. R.P. asked if anyone was interested in a “foursome”. A.S. and U.K. said yes. The complainant was still performing oral sex on U.K. and did not reply. She then came over to R.P. and began performing oral sex on him. He tried to have intercourse with her but could not get his penis in her vagina. He testified that he digitally penetrated her after she directed his hand there. He did this only for a short time. Because he was having trouble maintaining an erection, he got off the bed, ejactulated on the wall, and then left the room.

[42]       R.P. testified that at no point did he think the complainant was too drunk to consent.

[43]       R.P. denied that U.K. said (in reference to the complainant), “[R.P. – using his first name], you take her.” He also denied that he pulled the complainant towards him, pulled her pants off, or sexually touched her without her consent. He denied that she ever tried to push him away.

[44]       R.P. became aware that the complainant was sick when E.S. got into an argument with two girls who were making fun of the complainant because she was vomiting. He remembered telling the girls to leave and seeing that the complainant had vomited on the bed and herself. He thought this occurred 10 to 15 minutes after the sexual encounter. R.P. called 911 after B.C. or his brother told him that the complainant was choking and they were worried she had alcohol poisoning. 911 records indicate the call was at 12:44 a.m. R.P. followed the 911 operator’s instructions and assisted the complainant until first responders arrived.

[45]       R.P. testified that he was not keeping track of how much other people were drinking, including the complainant. At one point, prior to the sexual contact, he saw J.C. “pouring” Hennessy “down [the complainant’s] throat”.

(v)       The Evidence of J.C.

[46]       J.C. was called by the defence at trial. She testified that she was good friends with both the complainant and U.K. She knew R.P. through U.K., but not well. J.C.’s account of getting to the party was similar to the complainant’s.

[47]       J.C. testified that she spent most of the party talking to the complainant, E.S., U.K., and U.K.’s friend S. All three girls were drinking, but the complainant drank more than her. She remembered the complainant saying she was going to lie down in the bedroom.

[48]       J.C. testified that “everyone” was hanging out in the bedroom, including U.K., who was lying on the bed. J.C. saw the complainant undo U.K.’s pants and begin to perform oral sex on him. J.C. asked the complainant if she was okay. The complainant said she was and said, “I want to fuck [U.K. – using a short form of his first name]”. J.C. testified that although the complainant was drunk, she knew what she was doing, was aware of her surroundings, and was speaking clearly. In cross-examination, J.C. agreed that she told police she did not believe that anything would actually happen because she thought the complainant was about to pass out.

[49]       J.C. left the bedroom with E.S. to have a cigarette downstairs. This left both appellants, the complainant, and A.S. in the bedroom. She was not sure how long they were gone. When they returned to the hotel room, the bedroom door was closed. She heard moaning from the bedroom – both boys and girls – and assumed they were all having sex. J.C. and E.S. knocked on the door. R.P. opened the door. She saw R.P. exit the bedroom first, then U.K. and A.S. J.C. and E.S. entered the bedroom. She found the complainant on the bed. Her shirt was pulled up exposing her breasts, and she was not wearing pants or underwear. At this point, J.C. thought the complainant was out of it. The complainant started throwing up and getting sick. J.C., E.S., and a guy (she could not recall who) dressed the complainant.

[50]       J.C. remembered E.S. fighting with some guy, but did not know what it was about. She agreed it may have been an argument about whether to call an ambulance for the complainant. The guy told them to leave, so she and E.S. left and were not at the hotel when the ambulance arrived.

(vi)        The Evidence of A.S.

[51]       A.S. was also called as a defence witness. She testified that she went to the party with her friend N.M. She was not drinking that night, but had smoked marijuana a few hours before. A.S. did not spend time with the complainant; rather, she was hanging out with R.P. in the living room and on the roof. When they were on the roof, she saw a male and a female on the bed with the female giving the male oral sex. R.P. told her it was U.K. and the complainant.

[52]       A.S. had to use the bathroom, so she and R.P. went inside. Although they did not discuss it, she assumed that she and R.P. would have sex that night. She took her pants off and left them on the floor of the bathroom. When she came out, she and R.P. tried to have sex standing up, but it did not work as he could not maintain an erection. She tried to give R.P. oral sex to achieve an erection, but it did not work. She lay on her back and attempted to put R.P.’s penis inside her, but again, it did not work.

[53]       While A.S. was trying to have sex with R.P., she saw the complainant on her stomach, performing oral sex on U.K. Someone made a joke about the appellants not being able to maintain an erection and shortly after suggested a “foursome”. A.S. agreed. She did not remember anyone else saying anything. In cross-examination, she agreed that it was possible that U.K. said “[R.P. – using R.P.’s first name] you take her” or words to that effect. A.S. was not sure of the exact mechanics, but they switched partners. A.S. began to give U.K. oral sex. Again, it was not working, so she turned over so that they could try to have intercourse.

[54]       A.S. did not see what was happening between the complainant and R.P. while she was trying to give U.K. oral sex. But when A.S. turned over to try intercourse with U.K., she saw the complainant on her back and R.P. digitally penetrating her. A.S. heard the complainant let out a “very loud” moan. A.S. asked the complainant if she was okay. The complainant did not respond, so A.S. asked a second time. The complainant “moaned yes” with what A.S. perceived as a certain amount of “annoyance”, so A.S. did not ask any more questions.

[55]       A short time later, there was a knock at the bedroom door. A.S. heard her friend N. telling her it was time to leave. She got dressed and left the party with N., arriving home at 12:00 or 12:30 a.m.

Analysis

[56]       The central issues at trial were whether the Crown had proven beyond a reasonable doubt that the complainant did not consent to sexual contact with each appellant and/or proven that the complainant lacked the capacity to consent at the time of the sexual contact due to her level of intoxication. These issues turned on the jury’s assessment of the credibility (and to some extent reliability) of the various trial witnesses, as well as their assessment of the timeline of events as it related to the complainant’s level of intoxication (which was also tied to credibility findings). As I explain below, there were errors in the instructions to the jury which bore directly on the assessment of credibility.

(1)         Did the trial judge err in instructing the jury on fabrication as circumstantial evidence of guilt or on the content of the instruction on fabrication?

[57]       The appellants argue that the trial judge erred in instructing the jury on fabrication of evidence capable of constituting circumstantial evidence of guilt. They argue that there was no independent evidence of fabrication that justified instructing the jury on this issue. They further argue that even if it was not an error for the trial judge to instruct the jury on fabrication capable of constituting circumstantial evidence of guilt, the instructions contained significant errors that were prejudicial to them and require a new trial.

[58]       The Crown argues that the trial judge did not err in instructing the jury on fabrication or in the content of the instructions. At worst, the instructions were imprecise in not distinguishing between fabrication of a portion of the appellants’ out-of-court statements and fabrication of their trial evidence, but this imprecision caused no prejudice.

[59]       In my view, the trial judge made two errors in relation to the fabrication instruction. First, while there was a sufficient basis to instruct the jury that they could consider whether the appellants deliberately fabricated portions of their police statements, there was not a sufficient basis of independent evidence to instruct the jury that they could consider whether the appellants fabricated their trial evidence. The instruction the Crown sought at trial related to portions of the appellants’ statements to police about the complainant “chugging” Hennessy after the sexual contact (which they soon retracted and did not assert at trial). But the instruction the trial judge gave spoke to fabrication of both portions of their statements to police and of their trial evidence. This blurred the important distinction between allegations of fabrication of out-of-court statements and allegations of fabrication of trial evidence.

[60]       Second, the instruction on fabrication given by the trial judge was deficient in several ways, and constituted non-direction amounting to misdirection. In particular, the instruction: (i) failed to explain to the jury the difference between an exculpatory statement that is disbelieved (and has no evidentiary value) and an exculpatory statement found to be deliberately fabricated to avoid culpability (which may be considered along with other evidence as circumstantial evidence of guilt); (ii) failed to explain to the jury what evidence was capable of constituting independent evidence of fabrication; and (iii) failed to instruct the jury that they must consider the appellants’ explanations for their statements about the complainant “chugging” Hennessy after the sexual contact, and that they may only make a finding of fabrication and use it as evidence of guilt if they found that the statements were deliberately fabricated to avoid liability, and not for some other reason.

[61]       In my view, these errors were prejudicial and require a new trial.

(i)         Evidence relevant to the fabrication issue

[62]       Each appellant gave a statement to police approximately 2.5 days after the events at issue[5]. Those statements were found by the trial judge to be voluntary and were tendered as part of the Crown’s case.

[63]       The portions of the appellants’ statements to the police that the Crown at trial (not Ms. Marrocco) argued supported a fabrication instruction were statements about the complainant consuming alcohol after the sexual contact. In the case of each appellant, those portions of the statements were retracted contemporaneously, later within the same police statement, and each said they had been mistaken.

[64]       The statements of U.K. and R.P. were taken on July 20, 2017. By way of context, both U.K. and R.P. went to the police station on July 18, 2017, the morning after the events at issue. U.K. wanted to give a statement to police, but no one was available to take it. U.K. testified that he and R.P. spoke about the incident at that time, but at no time after that. R.P. denied having spoken with others about what happened. Later the same day, U.K., R.P., and others went to the hotel room to retrieve their belongings. Police had secured the room. While they were there, U.K. gave the police his name and phone number.

[65]       The investigating officers contacted U.K. and R.P. on July 19, 2017, and requested that they attend to provide statements, which they did, the next day.

[66]       In his statement to police on July 20, 2017, U.K. said twice that he saw the complainant “chugging” Hennessey in the bedroom after the sexual activity. He added that the complainant “got really drunk … after the whole sex and foursome.” However, later in the same statement, he said he was mistaken in this detail – that he got the time wrong and confused the complainant with someone else.

[67]       In his trial evidence, U.K. testified that he saw the complainant “chug” alcohol throughout the night. However, he did not give evidence of seeing her drinking after the sexual activity. He said that he had initially “got the timings wrong” about when the complainant was drinking in his police statement. His evidence was that after the sexual contact, he left the bedroom first, he believed followed by R.P. and A.S. but was not 100% sure. He testified that 5 to 10 minutes later, while he was on the roof smoking a cigarette, he heard someone say the complainant was being sick. Through the window, he saw two women arguing with E.S. about the complainant vomiting. He came inside and saw the complainant throwing up on herself in bed. She could not stand on her own.

[68]       In his statement to police on July 20, 2017, R.P. said that after the sexual activity, the complainant’s friends brought a bottle of Hennessy from the living room and started “pouring it down her [the complainant’s] throat,” and then took pictures in the bathroom mirror. He also said that the complainant “chugged” a bottle of Hennessy. He said everyone was drinking and posting on Snapchat. However, later in the statement, R.P. said that he was mistaken, and the complainant did not chug Hennessy after the sexual activity. He explained that he must have mixed up the timing of the photos in the bathroom and the Snapchat posts.

[69]       In his trial evidence, R.P. testified that U.K. left the bedroom first. R.P. left shortly thereafter. He explained that he had said in his police statement that the complainant was drinking after the “foursome” based on the timestamp on the Snapchat post; however, he no longer believed that she did so and did not remember her drinking after the sexual contact. He did not remember how the complainant was when he left the bedroom, but she was not being sick. Once back in the living room, he continued drinking. 10 to 15 minutes after he had left the bedroom, he realized the complainant was sick and had vomited all over herself and the bed. R.P. called 911.

(ii)       Legal principles regarding fabrication

[70]       A statement or evidence by an accused person found to have been deliberately fabricated (or concocted) is a type of post-offence conduct. Our courts have developed special rules applicable to alleged fabricated statements or evidence because of the risk posed by this type of inference of inadvertently shifting the burden of proof by turning a disbelieved statement or evidence into positive evidence of guilt.

[71]       The law draws a distinction between statements or testimony by an accused which are disbelieved, and therefore, rejected, and statements or testimony which are found to be fabricated in an effort to avoid culpability. A disbelieved statement or evidence has no evidentiary value. A statement or evidence found to be fabricated in an effort to avoid liability may be considered as circumstantial evidence of guilt: R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), at pp. 202-03; R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.), at para. 17; R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. 3(d) 277 at para. 38; R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321 at para. 52.

[72]       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: Coutts, at p. 203, O’Connor, at paras. 18-21; Al-Enzi, at para. 39; R. v. Laliberté, 2016 SCC 17, [2016] 1 S.C.R. 270, at para. 4.

[73]       It is true that as a matter of logic, it is often the case that if an accused’s statement or trial evidence is disbelieved and rejected, an inference that they must have fabricated their statement would logically flow. However, the distinction between an accused’s disbelieved statement or evidence and a fabricated statement or evidence is essential to maintaining the burden of proof on the Crown in cases where statements are tendered or an accused testifies. In Coutts, at p. 203, Doherty J.A. explained the rationale for the special treatment of evidence argued to constitute a fabricated statement or testimony as follows:

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused's guilt beyond 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.

See also O’Connor, at para. 19; Clause, at paras. 53-54.

[74]       The distinction fundamental to the jurisprudence on this issue is that it is not disbelief of an accused’s evidence that may provide circumstantial evidence of guilt. Rather, it is the attempt to deceive that supports an inference of fabrication with an intent to avoid liability: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 57-59, 61-67.

[75]       In O’Connor, this court explained that 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. O’Connor J.A. explained in O’Connor, at para. 25, that the distinction is based in the potentially greater risk of shifting the burden of proof where an allegation of fabrication of trial evidence is under consideration:

When an out-of-court statement of an accused is introduced into evidence, it does not have the same immediate connection to the trial itself as an accused's testimony, and for that reason, even if shown to be false, it does not present the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown.

[76]       In other words, the risk that a jury will inadvertently shift the burden of proof is qualitatively different where the jury is instructed to consider whether an accused’s trial evidence was deliberately fabricated to avoid liability, and that they may use such a finding as circumstantial evidence of guilt. Such an instruction risks undermining the burden of proof on the Crown because, if too readily given, a jury may use mere disbelief of an accused’s evidence as positive evidence on the scale to prove guilt. This would undermine the third branch of the W.(D.) analysis. For this reason, what may constitute independent evidence of fabrication is different where the allegation of fabrication relates to out-of-court statements rather than to trial evidence.

[77]       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: O’Connor, at paras. 23-24, 26-27, 31; R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at paras. 172-73; R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at paras. 48-50; Al-Enzi, at para. 40.

[78]       However, where fabrication of trial evidence is alleged, 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. This principle was put as follows by O’Connor J.A. in O’Connor: “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”: O’Connor, at para. 23; R. v. Iqbal, 2021 ONCA 416, at paras. 55-56; Wright, at para. 48. An example of the type of independent evidence that can provide a basis to instruct a jury on fabrication of trial evidence is evidence from another witness that the accused attempted to persuade them to lie about the accused’s whereabouts at the time of the offence: R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 165; R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at para. 98; R. v. Pollock (2004), 187 C.C.C. (3d) 213 (C.A.), at paras. 153-55.

[79]       Whether the evidence in a given case amounts to independent evidence of fabrication is necessarily a fact-specific exercise.

[80]       Finally, in cases where there is independent evidence of fabrication of either a statement or trial evidence, a trial judge must properly instruct the jury. I address the issue of the content of jury instructions further below.

(iii)      The impugned instruction

[81]       In the pre-charge conference, Crown counsel asked the trial judge to instruct the jury that they could consider the portions of the appellants’ police statements about the complainant “chugging” Hennessy after the sexual contact as post-offence conduct, which could be considered as circumstantial evidence of guilt, if the jury found that detail in the statements to be deliberately fabricated. Crown counsel took the position that independent evidence of fabrication could be found in the similarity of the statement made by each appellant; the fact that they both backtracked on that aspect of the statement; the fact that they had been in contact with each other prior to giving their police statements on July 20, 2017; and the fact that they attended at the police station at the same time on July 18, 2017 (although not travelling there together). The Crown did not seek an instruction that the jury could consider whether the appellants’ trial evidence was fabricated.

[82]       Trial counsel for both appellants (not their counsel on appeal) opposed the Crown’s request for a fabrication instruction regarding the portion of the police statements about the complainant “chugging” Hennessy after the sexual contact. They argued that there was an insufficient evidentiary basis for such an instruction. Although each appellant initially told the police that the complainant chugged Hennessy after the sexual contact, each corrected themselves during the statement and said they were mistaken about that detail. The appellants took the position that the only relevance of the retracted aspect of their statements was the ordinary use of the inconsistency being a factor that could be considered in assessing the credibility of the appellants’ trial evidence. I pause to note that the draft jury instructions under discussion during the pre-trial conference did not include an instruction on post-offence conduct/fabrication. As a result, there was no discussion at that time of specific language for such an instruction, if one was to be given.

[83]       The day after the pre-charge conference, shortly before closing submissions, the trial judge gave a brief oral ruling stating that he had included some instructions on fabrication in the jury charge.

[84]       The trial judge instructed the jury as follows on fabrication as post-offence conduct:

FABRICATION

The Crown submits to you that the evidence of Mr. [R.P.] and Mr. [U.K.] has been fabricated, or at least some of it. That is, made up to put them in a better light. For example, initially, in their police statements, both men alleged that after the sexual activity in question, they saw [the complainant] chugging from a Hennessy bottle, while still in the bedroom.

Later they conceded that they only saw [the complainant] chugging from the bottle before the sexual activity occurred.

Both accused were together later on July 18th when they, along with others, went to the hotel to get their personal property. They attended together at the police station on the 19th. There was an opportunity to fabricate evidence.

After reviewing all of the evidence consider whether any of it was fabricated. Is there independent evidence to establish their evidence was fabricated? Is there evidence within the relevant circumstances?

If you conclude the evidence was fabricated you can use that fact as evidence of guilt, to be considered along with all the other evidence. [Emphasis added.]

[85]       I note that in addition to being given orally, the jury instructions (apart from the review of the evidence and the positions of the parties) were given to the jury in writing.

(iv)      The trial judge erred in instructing the jury on fabrication as it related to the appellants’ trial evidence in the circumstances of this case

[86]       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.

[87]       I agree with the Crown that there was a sufficient independent evidentiary basis for the trial judge to instruct the jury that they could consider whether the portions of the appellants’ statements to police about the complainant “chugging” Hennessy after the sexual contact were fabricated for the purpose of avoiding liability, and if they so found – after considering alternate explanations – could consider that as circumstantial evidence of guilt (in the context of the evidence as a whole). In particular, recalling that for an out-of-court statement the circumstances surrounding the statement may provide independent evidence of fabrication, in my view, the following aspects of the appellants’ statements to police provide a sufficient evidentiary foundation for such an instruction:

•        Each appellant provided a very similar account in his police statement of the complainant “chugging” Hennessy after the sexual contact (i.e., the improbability of coincidence that each would be mistaken about the same exculpatory detail);[6]

•        This portion of the statement was relatively detailed and specific for both appellants;

•        The appellants had the opportunity to discuss the events at issue prior to providing their statements and U.K. said they did discuss them;

•        Each appellant quickly gave up this detail as mistaken when pushed on it by the officer conducting the interview.

[88]       As I discuss further below regarding the content of the instruction, the jury would, of course, have to consider the explanation provided by each appellant for their claimed mistake. But in my view, the content and overall circumstances in which both appellants told the police that the complainant was “chugging” Hennessy after the sexual contact provided a sufficient evidentiary basis to instruct the jury that they could consider whether this portion of each of their police statements was deliberately fabricated for the purpose of avoiding liability.

[89]       However, 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.

[90]       Thus, the trial judge erred by instructing the jury on fabrication of the appellants’ “evidence”, rather than limiting the fabrication instruction to whether the portions of the appellants’ police statements about the complainant “chugging” Hennessy after the sexual contact had been fabricated for the purpose of avoiding liability.

[91]       This error by the trial judge was prejudicial for the reasons explained in O’Connor. 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, contrary to the third branch of W.(D.). 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.

[92]       Further, the blurring in the instruction between fabrication of the portion of the appellants’ police statements about the complainant “chugging” Hennessy after the sexual contact and fabrication of their trial evidence was prejudicial to the appellants because it went beyond the instruction sought by Crown counsel at trial. Crown counsel at trial only sought an instruction on fabrication as circumstantial evidence of guilt with respect to the portion of the appellants’ police statements about the complainant chugging Hennessy after the sexual contact, not with respect to their trial evidence.[7]

[93]       Crown counsel argued at the appeal hearing that the references in the fabrication instruction to both fabrication of portions of the appellants’ police statements and fabrication of their trial evidence was merely “imprecision”, and it would have been clear to the jury that the trial judge was only referring to the portions of the police statements about the complainant “chugging” Hennessy after the sexual contact.

[94]       I do not agree. The distinction between an allegation of fabrication of an out-of-court statement and fabrication of trial evidence in terms of the evidentiary foundation required, as discussed in O’Connor, exists because of the particular risk to the burden of proof posed by allegations of fabrication of trial evidence. The blurring of the distinction between the two situations is prejudicial because of the particular risks of shifting the burden of proof where an allegation of fabrication of trial evidence is made. It is not a distinction that would be obvious to members of the jury without a clear instruction.

(v)       The instruction on fabrication was deficient

[95]       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.

[96]       The jurisprudence establishes that instructions to a jury regarding an allegation that a statement or trial evidence is fabricated should include at least 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);

•        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.

See: O’Connor, at paras. 38, 42; R. v. Calnen, 2019 SCC 6,  [2019] 1 S.C.R. 301, at para. 117; Al-Enzi, at para. 41; Wright, at paras. 42-46; Clause, at paras.62-64; R. v. Oland, 2016 NBCA 58, at para. 67; David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed.(Toronto: Carswell, 2015), at pp. 362-274; Canadian Judicial Council, Model Jury Instructions, Part III, Final Instructions, 11.14 After-the-Fact or Post-Offence Conduct (Consciousness of Guilt), June 2012, online: <cjc-ccm.ca/cmslib/general/jury-instructions/Final/NCJI-Jury-Instructions-Final-E.pdf >.

[97]       It is not necessarily the case that the absence of one of these elements will render an instruction insufficient. An appellate court must take a functional approach to reviewing a jury charge, and review the impugned instructions in the context of the charge as a whole: Calnen, at paras. 8-9; R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35 , at paras. 17-21; see also Al-Enzi, at paras. 43-46. However, the fabrication instruction in this case was deficient in multiple ways.

[98]       First, the trial judge failed to instruct on the difference between an exculpatory statement that is disbelieved (which has no evidentiary value) and an exculpatory statement found to be deliberately fabricated to avoid culpability (which may be considered along with other evidence as circumstantial evidence of guilt). The failure to instruct a jury on this distinction constitutes reversible error because of the real risk that a jury may have difficulty grasping this concept without specific instruction: O’Connor, at para. 38; Al-Enzi, at para. 41; Clause, at paras. 62-64.

[99]       Second, the trial judge failed to explain to the jury what evidence was capable of constituting independent evidence of fabrication. As I have noted above, in my view, with respect to the appellants’ trial evidence, there was no independent evidence of fabrication. However, to the extent there was independent evidence of fabrication of the portion of their police statements where they both said that the complainant was “chugging” Hennessy after the sexual contact, the trial judge was required to explain to the jury what evidence was capable of constituting independent evidence of fabrication: O’Connor, at para. 38; Wright, at para. 43; Clause, at paras. 62-64; Oland, at para. 67. He failed to do so.

[100]   Third, 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. In particular, the trial judge failed to direct the jury that they must consider any other explanation for the false statement. Telling a jury that they must consider other explanations besides trying to avoid or conceal liability for an offence is an essential part of a jury instruction on any type of post-offence conduct, including alleged fabrication of a statement or trial evidence: Calnen, at para. 117; Al-Enzi, at para. 41; Wright, at paras. 44-46; Oland, at paras. 72-73.

[101]   The trial judge’s failure to give the jury any instruction about the need to consider explanations for the false statements, other than an intention to avoid liability, was particularly prejudicial in this case because both appellants provided an explanation, both in their statements to police (contemporaneously) and in their trial evidence. Each appellant retracted the detail about the complainant “chugging” Hennessy after the sexual contact during the police statement. Each appellant explained during the statement that they were mistaken about that detail. In their trial evidence, neither appellant testified that they saw the complainant drinking alcohol after the sexual contact. Each appellant gave evidence at trial explaining that they were mistaken when they said in their police statements that they had seen her “chugging” Hennessy after the sexual contact. U.K. testified that he had seen her “chug” alcohol earlier and got the timing wrong in his police statement. R.P. testified that he must have mixed up the timing based on Snapchat posts of the complainant taking photos in the bathroom. The appellants were entitled to have these explanations considered by the jury before a conclusion of deliberate fabrication in order to avoid liability could be drawn. The trial judge was required to review the appellants’ explanations with the jury.

[102]   The fourth error is more fact specific. As I have outlined above, there was independent evidence in this case that permitted the trial judge to instruct the jury that they could consider whether the portions of the appellants’ police statements about the complainant “chugging” Hennessy after the sexual contact were fabricated in an attempt to avoid liability. However, there was no independent evidence that would permit the trial judge to instruct the jury that they could consider if their trial evidence was fabricated in order to avoid liability. The jury instruction blurred the difference between fabrication of a statement to police and fabrication of trial evidence, contrary to this court’s decision in O’Connor. As there was no independent evidence to support that the appellants fabricated their trial evidence, the blurring in the instruction between fabrication of a specific detail in the appellants’ police statements and fabrication of their trial evidence was prejudicial.

[103]   On appeal, the Crown did not respond specifically to each error alleged by the appellants in the instruction on fabrication. However, the Crown argued that the trial judge was not required to specifically tell the jury that they had to consider other explanations for the portion of the statement to police where each appellant said the complainant was “chugging” Hennessy after the sexual contact. According to the Crown, such an instruction was not required because the allegedly fabricated detail “only gave rise to one reasonable possibility” – that it was designed to deflect guilt by supporting the appellants’ position that the complainant was capable of consenting to sexual activity (and did so). As I have noted above, Crown counsel also argued that the references to “evidence” in the fabrication instruction, beyond the relevant portion of the police statements, was merely “imprecision” and not prejudicial.

[104]   I do not accept the argument that the only reasonable inference was that the appellants deliberately fabricated the detail in their police statements about the complainant “chugging” Hennessy after the sexual contact in order to avoid liability. As I have outlined above, both appellants provided an alternate explanation in their statements to police and in their trial evidence. There is nothing inherently unreasonable or unbelievable about each of their explanations that they were mistaken about the timing of when the complainant was “chugging” Hennessy. The trial judge was required to instruct the jury that they had to consider the alternate explanation before concluding that they deliberately fabricated that portion of their statements in order to avoid liability.

[105]   I have already addressed above why I do not accept the argument that the references in the fabrication instruction to considering whether the appellants’ “evidence” was fabricated (as opposed to portions of their statements to police) was merely “imprecision” and not prejudicial.

[106]   Although defence counsel at trial did not object to the content of the fabrication instruction after it was given, they objected in the pre-charge conference to any instruction on fabrication being given. As I have also noted above, the trial judge ruled that he would add an instruction on fabrication after the pre-charge conference, just prior to closing submissions. As a result, there was no specific draft instruction on fabrication which counsel could comment on at the time of the pre-charge conference.

[107]   I appreciate that it was open to trial counsel to object to the content of the instruction on fabrication after it was given, and they did not do so. However, in light of their earlier objection to any instruction on fabrication being given, and the serious deficiencies in the instruction ultimately provided, I am satisfied that this is not a circumstance where there was a tactical decision not to object to the content of the fabrication instruction.

[108]   Crown counsel also argued that in closing submissions, trial counsel for the appellants did not take the position that the appellants each made a mistake in their statements to police about the complainant “chugging” Hennessy after the sexual contact. I do not accept Crown counsel’s characterization of the positions that trial counsel for each appellant took in their closings.

[109]   Trial counsel for R.P. asked the jury to consider R.P.’s young age (18 years) and that being interviewed by the police was an intimidating situation. In this context, he said that R.P. “said some foolish things.” However, counsel went on to specifically address the Crown’s allegation that R.P. fabricated the detail about the complainant’s friends pouring alcohol down her throat after the sexual contact: “And then later on he said, well, it wasn’t after the sexual encounter, it must’ve been before. I did see it but I just got mixed up with the time. So, these are things for you to consider when you go into the jury room to decide what happened.” In my view, it is clear that R.P.’s counsel asked the jury to consider R.P.’s explanation of mistake about timing.

[110]   Trial counsel for U.K. also included in his closing submission that the jury should consider other explanations for the portion of U.K.’s statement to police that the complainant was “chugging” Hennessy after the sexual contact besides a deliberate intention to avoid liability. However, somewhat inexplicably, counsel proffered an explanation different than the one U.K. had actually testified to (mistake about timing):

The question is why it was that he said that, and one interpretation is because he would like the police to think she was drinking all of this after the incident and not before, so she was okay before. So, he’s telling the police this after. Later in the interview he says, “You’re right. I made a mistake. It didn’t happen.” But another way to look at that is he’s telling them that because he’s not wanting to say, “Yeah, she was chugging all this Hennessy before it happened.” Because that leads to a possible conclusion that he’s trying to get her drunk. That I ask you to look at it that way as well.

[111]   This aspect of the closing submission by counsel for U.K. is somewhat troubling, given that it was not grounded in U.K.’s evidence. But counsel’s position in closing submissions did not absolve the trial judge of his obligation to instruct the jury based on the evidentiary record before them. The trial evidence included U.K.’s evidence that he did not deliberately lie to the police when he told them that the complainant was “chugging” Hennessy after the sexual contact, but rather, he was mistaken and got the timing mixed up.

[112]   For these reasons, I reject the Crown’s argument that anything in the defence closing submissions absolved the trial judge of his obligation to instruct the jury based on the evidence before them. As this obligation related to the instruction on fabrication, the trial evidence included the appellants’ explanations that they were mistaken about the timing of seeing the complainant “chugging” Hennessy.

[113]   The errors I have identified in the fabrication instruction are fundamental and were prejudicial to the appellants. This case turned on credibility. This court has repeatedly recognized the powerful nature of a finding that an accused has fabricated a statement or trial evidence: see, for example, O’Connor, at para. 38. These errors related to instructions that bore on the jury’s assessment of the appellants’ credibility. This court cannot have any comfort that the verdict would necessarily have been the same absent these errors.

(2)         Did the trial judge err in his instruction to the jury on the principles from R. v. W.(D.)?

[114]   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.

[115]   The Crown argues that compendious references to the defence evidence in the W.(D.) instruction did not convey to the jury that they had to believe (or have a reasonable doubt) about all of the defence evidence to acquit under the first two branches of W.(D.). Elsewhere in the instructions, the trial judge made clear to the jury that they could accept some, none, or all of the evidence of any witnesses, and also instructed them to “decide and review” the charges against each appellant “separately.” The Crown notes that neither appellant objected at trial to the W.(D.) instruction. Although failure to object is not determinative of whether there was error in the jury instruction, the Crown argues that the lack of objection by experienced defence counsel at trial is relevant to assessing whether the jury instructions, when read as a whole, adequately conveyed that the Crown had to prove guilt beyond a reasonable doubt for each appellant individually.

[116]   In my view, the trial judge erred in his instructions on the principles from W.(D.) in two ways. First, the trial judge erred in lumping together the evidence of both appellants. They were each entitled to separate consideration of their cases, despite the overlap of the evidence. Second, the trial judge erred in treating the defence evidence as an all-or-nothing proposition in the W.(D.) instruction. The instruction erroneously conveyed to the jury that they could have a reasonable doubt based on the defence evidence only if they accepted all of the defence evidence. The jury were entitled to believe some, none, or all of the evidence of any witness – including defence witnesses. It was open to the jury to be left with a reasonable doubt based on some of the defence evidence, without accepting all of the defence evidence. I elaborate on each of these conclusions below.

(i)         The relevant legal principles

[117]   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: W.(D.), at pp. 757-58; R. v. C.L. 2020 ONCA 258, 387 C.C.C. (3d) 39, at paras. 25-27; R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 106-07.

[118]   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: B.D., at paras. 105-14.

[119]   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: R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, at paras. 40, 60, 62; R. v. Parris, 2013 ONCA 515, 300 C.C.C. 3(d) 41, at paras. 77-79

(ii)       The impugned instruction

[120]   The trial judge instructed the jury as follows on the principles regarding how the reasonable doubt standard of proof relates to credibility:

STEPS IN ASSESSING THE OVERALL EVIDENCE

I direct you as follows. If you believe the defence evidence, including the testimony of Mr. [U.K.] and Mr. [R.P.], you must find them not guilty of the offences.

Even if you do not believe the defence evidence, if it leaves you with a reasonable doubt about the guilt of Mr. [U.K.] and Mr. [R.P.], you must find them not guilty.

But even if, and even if the defence does not leave you with a reasonable doubt, you must not convict Mr. [U.K.] and Mr. [R.P.] unless the evidence of the Crown that you do accept, satisfies you, beyond a reasonable doubt, that they are guilty.

(iii)      Errors in the W.(D.) instruction

[121]   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. As I have noted above, the case was put to the jury on the basis of separate acts, and the jury was not instructed on party liability. However, 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.

[122]    In my view, the first error in the W.(D.) instruction in this case is similar to the error identified in Josipovic. Doherty J.A. described the error in an instruction very similar to that given in this case as follows (at paras. 60, 62):

The trial judge also presented the appellants as a unit rather than as individuals when explaining the operation of the burden of proof to the evidence of an accused as described in R. v. W.(D.) [citation omitted] …

The jury was not required to accept the evidence of both appellants to acquit either. Nor was the jury required to have a doubt about the evidence of both appellants to acquit either. For example, if Mato’s evidence left the jury with a reasonable doubt about his participation in the homicide, he was entitled to an acquittal, regardless of what the jury made of John’s evidence. The trial judge wrongly collapsed what should have been separate W.(D.) instructions applicable to each appellant into a single instruction clearly suggesting to the jury that the reasonable doubt standard should be applied to the appellants’ evidence considered together.

[123]    The second error in the W.(D.) instruction is that it conveyed to the jury that the defence evidence was an all-or-nothing proposition. The instruction erroneously conveyed to the jury that they could have a reasonable doubt based on the defence evidence only if they accepted all of the defence evidence. The jury were entitled to believe some, none, or all of the evidence of any witness – including defence witnesses. It was open to the jury to be left with a reasonable doubt based on some of the defence evidence, without accepting all of the defence evidence.

[124]   This error was consequential in this trial because, in addition to the evidence of each appellant to be considered, the defence also called J.C. and A.S. as witnesses. J.C. gave evidence about the complainant’s level of intoxication prior to and following the sexual activity and about some of the sexual activity between U.K. and the complainant. A.S. gave evidence as to the complainant’s level of intoxication, actions, and utterance communicating consent during the sexual activity. The evidence of J.C. and A.S. contradicted aspects of the complainant’s evidence, and was capable of raising concerns about the credibility of the complainant’s evidence and the reliability of her memory.

[125]   Taken together, the two errors I have identified erroneously conveyed to the jury that in order to acquit they had to believe or have a reasonable doubt about the evidence of both appellants and believe or be left in a reasonable doubt by the other defence witnesses. This was incorrect. Each appellant was entitled to an acquittal if his evidence alone, considered in the context of all of the evidence, was believed by the jury or left the jury with a reasonable doubt. Further, a reasonable doubt could arise from some portion of the defence evidence (either appellant or the other defence witnesses) without the jury necessarily believing all of the defence evidence or being left with a reasonable doubt about all of it.

[126]   The instructions detracted from both the requirement that the case against each appellant be assessed individually and from the principle that a jury can believe some, none, or all of the evidence of any witness, and can be left with a reasonable doubt by some of the defence evidence without believing or being left in a reasonable doubt by all of the defence evidence. The erroneous instructions also made the defence evidence an all-or-nothing proposition, which had the effect of imposing a higher burden on each appellant than the law required under the first and second branches of the W.(D.) analysis.

[127]   In fairness to the trial judge, it is clear that the formulation of the W.(D.) instruction that he provided to the jury was an attempt to address the principle from B.D. that the W.(D.) principles apply not only to the testimony of an accused person, but to any exculpatory defence evidence. The difficulty is that the formulation from W.(D.) is worded only to address the evidence of an accused person, and simply substituting “defence evidence, including the testimony of Mr. [U.K.] and Mr. [R.P.]” may lead to the problems identified in this case.

[128]   These issues could be clarified without unduly complicating the W.(D.) instruction, by providing an instruction along the lines of the following after the instruction the trial judge gave in this case:

•        In assessing whether you believe the defence evidence or are left in a reasonable doubt by it, you may reach the same conclusion with respect to the evidence of Mr. [R.P.] and Mr. [U.K.], or you may reach different conclusions regarding each accused.

•        Further, in considering whether you believe or are left with a reasonable doubt by the defence evidence, it is not necessary that you believe or are left in a reasonable doubt by all of the defence evidence for you to be left with a reasonable doubt about the guilt of either accused. In other words, you may believe or be left in a reasonable doubt by the evidence of one or more of the defence witnesses without believing or being left with a reasonable doubt by the evidence of all of the defence witnesses. It is for you to decide.

[129]   Crown counsel argued that reading the jury instructions as a whole, a number of features of the instructions ensured that the jury understood the proper application of the burden of proof to credibility. She placed particular emphasis on three aspects of the jury charge. First, early in the instructions, the trial judge gave the jury the standard instruction that in considering the evidence, they may accept “some, none, or all of the evidence of any witness”. Second, the trial judge gave the jury a “number of witnesses” instruction, telling them that how little or how much they rely on the evidence of any witness does not depend on the number of witnesses who testify one way or the other, and that they may decide that the testimony of one witness is more reliable than the evidence of a larger number of witnesses. Third, the trial judge instructed the jury that:

The bottom line is that each [accused] is charged with sexual assault and you have to decide and review both of those charges separately. You must make your decision with respect to the charges on the basis of the evidence that relates to those charges and the legal principles that I tell you apply to your decision on each respective charge … You must reach a separate verdict on each of the two charges.

As well, when the trial judge instructed the jury on the use of the verdict sheets, he told them, “The verdicts do not have to be the same”.

[130]   I accept that the errors I have identified in the W.D. instruction must be considered in the context of the instructions read as a whole, including the reference to reaching “separate” verdicts, and the instruction that the jury could believe some, none, or all of the evidence of any witness. Where this court has found errors similar to that in this case, the court has looked to reading the impugned instruction in the whole of the jury charge to assess whether the jury would or would not have understood the proper application of the burden of proof to issues of credibility: Josipovic, at para. 44; Parris, at paras. 79-83.

[131]   I accept that if the W.(D.) error in the jury instructions stood alone, it would be a close call as to whether the deficiencies I have identified would warrant a new trial. As Crown counsel notes, there was no objection from trial counsel to the W.(D). instruction. Further, the instructions in this case contain many of the features that led this court to reject a similar ground of appeal in Parris. However, in my view, there are factors in this case that distinguish it from Parris, which I address below. In my view, the errors in the W.(D.) instruction, at a minimum, aggravate the errors I have identified with the fabrication instruction because they are a second area where the jury was not properly instructed on issues central to their evaluation of the credibility issues in this case.

[132]   I note three factors that distinguish this case from Parris. First, although it is true that at one point the trial judge instructed the jury that they must decide and review both charges separately and reach a separate verdict on each charge, there were numerous other places in the jury instructions where the trial judge referred to the two appellants together as a unit, collectively. These repeated collective references to the appellants in the instructions raise the concern that led this court to order a new trial in Josipovic – that repeated reference to the two accused as a unit “suggested, at least to some extent, that the cases for and against the [two accused] stood or fell together”: at para. 45.

[133]   Second, in Parris, the only defence evidence was the testimony of the two accused. Thus, the error in the W.(D.) instruction in that case did not have the additional concern present in this case of conveying to the jury that the defence evidence had to be believed or raise a reasonable doubt as a collective whole, to be the basis for an acquittal.

[134]   Third, in Parris, the two co-accused were advancing entirely different defences – one denied participation in the stabbing; the other said he acted lawfully in self-defence and defence of a third party. This served to allay to a significant degree the concern that the W.(D.) instruction which dealt with both accused together would lead the jury not to consider their cases individually: Parris, at para. 80. By contrast, in this case, the defences of both appellants were identical – consent (with capacity to consent) and to a lesser degree honest but mistaken belief in communicated consent. It is true that the sexual act alleged against each appellant was distinct in the sense that the counts were separate and sequential. However, given the significant overlap of the evidence and issues for the two appellants, it was essential that the jury understand that in its assessment of credibility and the reasonable doubt standard, each appellant was entitled to individual consideration of the case against him and the defence evidence as it applied to his case.

[135]   Further, the W.(D.) error cannot be looked at in isolation. It must be considered in combination with the significant errors I have identified in the fabrication instruction. Both were errors that went to the heart of the credibility issues the jury had to decide in this case.

(3)         The curative proviso is not applicable

[136]   The Crown did not argue the application of the curative proviso in its factum. However, in oral submissions, Crown counsel argued that the proviso could be applied at least to the W.(D.) error, if the court found that the trial judge erred.

[137]   In my view, the curative proviso is not appropriately applied in this case. Given the evidence at trial and the positions of the parties, the result in this trial turned on the jury’s assessment of the credibility of the complainant, the appellants, and other defence witnesses, in the context of all of the evidence, as measured against the reasonable doubt standard of proof. The errors in relation to the fabrication instruction and the W.(D.) instruction both directly impact the tools the jury was given to carry out that task. In the context of the issues in this case, the errors, which bore on credibility and the burden of proof, were not minor.

[138]   The jurisprudence counsels caution in applying the proviso to errors related to issues of credibility: R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480 , at para. 145; R. v. B. (F.F.), [1993] 1 S.C.R. 697, 79 C.C.C. (3d) 112 at pp. 706-07, 737. Further, the case against the appellants was not overwhelming. I am not persuaded that the verdict would necessarily have been the same absent the errors: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34; R. v. Bevan, [1993] 2 S.C.R. 599, at pp. 616-17.

(4)         The remaining grounds of appeal

[139]   As I would allow the appeal based on the first two grounds, it is not necessary to address the remaining grounds of appeal. Whether and what type of Vetrovec caution may be necessary in relation to the evidence of B.C. will depend on the nature of his evidence at the retrial and the positions of the parties based on that evidence. As such, this issue is better left for consideration by the judge at the retrial.

[140]   Similarly, it is not necessary or appropriate to address the adequacy of the instruction on honest but mistaken belief in communicated consent as it related to the appellant R.P. The arguments raised by R.P. about the inadequacy of this instruction essentially relate to the sufficiency of the review of the evidence for that defence as it related to him. However, I would add that, to the extent R.P. raised arguments of errors regarding the instructions to the jury on honest but mistaken belief in communicated consent, the arguments focused on the trial judge treating the evidence on the issue of mistake as it related to him as essentially the same as the evidence on the issue of mistake as it related to the appellant U.K. – that is, failing to provide a review of the evidence specific to R.P. for the mistake defence. This tracks to some degree one of the errors I find in the W.(D.) instruction outlined above of lumping together the two appellants in the jury instructions. The judge conducting the retrial must take care to ensure that the jury is given the tools to evaluate the evidence as it applies to each appellant individually.

Disposition

[141]   I would allow the appeals, set aside the convictions, and order a new trial.

Released: September 11, 2023 “I.N.”

“J. Copeland J.A.”

“I agree. I.V.B. Nordheimer J.A.”

“I agree. Sossin J.A.”