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