[27] The law, briefly stated, is that the trier of fact may not treat a disbelieved exculpatory statement as positive evidence of guilt unless there is evidence, independent of the fact of falsity itself, that the statement was concocted or deliberately fabricated. The rationale for the rule was explained by Doherty J.A. in R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), at p. 203 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. [References omitted.]
[28] Procedurally, where the Crown wishes to have the jury draw the inference of guilt from an accused's statements, then at the admissibility stage it must show the court sufficient evidence of concoction that is independent of the falsity of the statement, to demonstrate fabrication. See R. v. Hall, 2010 ONCA 724, at para. 164. Otherwise, the Crown is limited to putting the statements to the accused in cross-examination, if the accused testifies at the trial. That procedure was not followed in this case before the Crown was allowed to lead the statements in evidence as part of its case. However, the accused testified in his own defence, so that the statements were also put to him in cross-examination.
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