Fabrication versus disbelief

R. v. Cyr, 2012 ONCA 919 deals with the distinction between disbelieving an accused and finding an exculpatory statement made by the accused is a fabrication. A fabrication may be taken as showing an inference of guilt whereas mere disbelief is evidence of nothing. Some might question whether an innocent accused might not fabricate a story -- and thus fabrication ought to mean no more than mere disbelief. Regardless, the law is stated clearly below:

[74] The parties do not differ significantly on the governing principles although they part company on the result of the application of those principles in this case.

[75] The distinction between disbelief and fabrication originated in cases in which the defence advanced was alibi. Those authorities made it clear that, although a disbelieved alibi is of no evidentiary value, a fabricated alibi can constitute evidence from which an inference of guilt may be drawn: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 57-58; R. v. Coutts (1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at paras. 15-16; and R. v. O'Connor (2002), 62 O.R. (3d) 263 (C.A.), at para. 17.

[76] The same rule applies to other exculpatory statements: O'Connor, at para. 18. In non-alibi cases, it is necessary to have regard to the content of what it is that is disbelieved and the connection of the disbelieved statement to the offence charged: O'Connor, at para. 18.

[77] The purpose of the distinction between disbelief and fabrication is to reduce the risk that the trier of fact, if left unschooled, may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. Further, the distinction takes into account the danger that the trier of fact may attach undue weight to their rejection of the accused's explanation, and move too readily from mere disbelief to a finding of guilt: O'Connor, at para. 19; Coutts, at para. 15.

[78] Disbelief cannot form the basis upon which to infer fabrication. A finding of fabrication must be founded on evidence that is independent from the evidence that contradicts or discredits the accused's version of events: O'Connor, at para. 21; Coutts, at paras. 15-16.

[79] A trier of fact may consider the circumstances in which an accused made an out-of-court statement that is disbelieved as independent evidence to show that the accused fabricated that statement: O'Connor, at para. 24. The circumstances in which a false statement has been made may show an accused's intent to mislead the police, or to deflect suspicion, and thus be evidence of a conscious knowledge that she or he has committed an offence: O'Connor, at para. 26. If the circumstances in which the statement was made tend to support this conclusion of consciousness, then those circumstances may be used as independent evidence of fabrication: O'Connor, at para. 26.