Her Majesty the Queen v. Muhammad Iqbal, 2021 ONCA 416
COURT OF APPEAL FOR ONTARIO
DATE: 20210614 DOCKET: C66276
Fairburn A.C.J.O., Doherty and Sossin JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Muhammad Iqbal Appellant
Counsel: Carlos Rippell and Marianne Salih, for the appellant Emily Marrocco, for the respondent
Heard: April 16, 2021 by video conference
On appeal from the convictions entered by Justice Beth A. Allen of the Superior Court of Justice on October 11, 2018, with reasons reported at 2018 ONSC 6033, and from the sentence imposed on December 19, 2018, with reasons reported at 2018 ONSC 7593.
Sossin J.A.:
OVERVIEW
[1] On October 11, 2018, following a trial by judge alone, the appellant was convicted of: (1) assault with a weapon, contrary to s. 267(a) of the Criminal Code, R.S.C. 1985, c. C-46; (2) possession of a weapon, contrary to s. 88(1) of the Criminal Code; (3) break and enter, contrary to s. 348(1)(b) of the Criminal Code; and (4) theft under $5,000, contrary to s. 334(b) of the Criminal Code. On December 19, 2018 the appellant received a global sentence of four years’ imprisonment on all counts.
[2] The events giving rise to the convictions took place in the early morning hours of October 26, 2015. The complainant alleged that a male stranger entered her apartment as she slept and threatened her with a knife.
[3] Identity was the primary issue at trial. The complainant made an in-dock identification of the appellant as the intruder. The appellant, who also lived in the building, was the only individual depicted in video surveillance footage of areas near the complainant’s apartment around the time of the incident.
[4] The appellant testified in his own defence and denied he was the intruder. To account for his appearance in surveillance footage at the relevant time, he testified that he had left his apartment and gone downstairs to his vehicle to retrieve his cell phone.
[5] The trial judge found the appellant guilty on all counts. She was satisfied beyond a reasonable doubt that the complainant had correctly identified the appellant as the intruder. In reaching this conclusion, the trial judge rejected the appellant’s evidence and found that he had attempted to mislead the court by “fabricating” or “concocting” a false explanation for his whereabouts around the time of the incident.
[6] The appellant appeals from his convictions and sentence. With respect to his convictions, he contends the trial judge made five errors warranting appellate intervention: (1) failing to address weaknesses in the complainant’s identification evidence; (2) relying on the complainant’s in-court identification of the appellant; (3) mischaracterizing the appellant’s defence as one of alibi; (4) finding the appellant’s evidence was fabricated or concocted absent a proper evidentiary basis; and (5) misapprehending the surveillance video evidence.
[7] For reasons that follow, I would allow the conviction appeal on the fabrication ground but find no errors in relation to the remaining grounds. I would therefore set aside the convictions and order a new trial on all charges.
[8] In view of my conclusion on the conviction appeal, I need not address the sentence appeal.
MATERIAL FACTS
The incident
[9] The complainant lived on the first floor of an apartment building at 43 Thorncliffe Park Drive in Toronto. In the early morning of October 26, 2015, the complainant was asleep in her bed with her young son and daughter. The complainant was awakened when she was shaken on the shoulder by a male stranger standing beside her bed.
[10] When she saw the intruder standing by her bed, the complainant began to scream. She said the intruder tried to make her stop screaming. He put his index finger to his lips and made the sound, "sh-sh-sh". When this failed to silence her, the complainant said the intruder got close to her face, took out a knife, and put it to his lips. He then pointed the knife towards her chin. The complainant continued screaming “madly”. The intruder left the room and fled the apartment.
[11] Once the intruder was gone, the complainant left her bedroom and saw that the front door to her apartment, which she had closed and locked before bed, was ajar. She then called 9-1-1. Officers arrived and spoke with the complainant. When speaking with the officers, the complainant noticed that her sliding patio door at the rear of her apartment was also open, despite having closed it before going to bed.
[12] Police subsequently discovered that the knife the intruder had used belonged to the complainant. The complainant told police that she had left a knife with a purple handle on the dining room table before going to bed, but officers could not locate it anywhere on the premises.
The complainant’s attempts to identify the intruder for police
[13] The complainant gave a statement to police shortly after the incident. In her statement she described the intruder as a brown male in his late 30s, approximately five feet six inches tall with short dark hair, thin build, and big eyes. She said he was wearing a leather jacket and a scarf around his neck during the incident.
[14] In the course of their investigation, police reviewed the building’s CCTV video footage from around the time of the incident. That footage showed a man entering the building’s main lobby from the direction of the complainant’s first-floor apartment. The building’s security supervisor confirmed for police that the man depicted was the appellant, who lived in an apartment on the 21st floor of the building.
[15] Police subsequently showed a photo lineup to the complainant which included a photo of the appellant. The photo of the appellant had been taken years earlier and showed him with a full head of black hair. The complainant did not pick the appellant’s photo out of the lineup. Nevertheless, police arrested the appellant nine days after the incident.
PROCEEDINGS AT TRIAL
The complainant’s evidence relating to identification
[16] At trial, the complainant made an in-dock identification of the appellant as the intruder she saw in her bedroom. She also testified about the intruder’s appearance at the time of the incident.
[17] During cross-examination, the appellant’s trial counsel confronted the complainant with several alleged inconsistencies regarding her identification evidence, including:
- The complainant testified that the intruder was wearing a scarf during the incident. When confronted with still photos from surveillance footage of the appellant around the time of the incident, the complainant agreed he was not wearing a scarf.
- The complainant told police and testified at the preliminary inquiry that the intruder had a moustache. When confronted with still photos from surveillance footage of the appellant around the time of the incident, the complainant agreed he did not appear to have a moustache.
- The complainant indicated to police that the intruder was in his late 30s or early 40s. The appellant was 28 years old at the time of the incident. The complainant agreed with defence counsel that there was a “fairly big” difference between ages 28 and 40.
- After first telling police that the intruder had short dark hair, the complainant later described the intruder’s hair colour as mostly grey. Surveillance footage from the day of the incident showed that the appellant was balding with black hair on the sides of his head.
The surveillance video evidence
[18] Apart from the complainant’s direct eyewitness identification, the Crown’s case against the appellant was circumstantial. The Crown theorized that the appellant had entered the complainant’s apartment through the patio door at the rear of the premises and fled through the front door. That theory rested primarily on circumstantial evidence relating to the appellant’s whereabouts around the time of the incident.
[19] Specifically, at trial the Crown adduced a seven-minute compilation of time stamped video surveillance footage from various locations throughout the building around the time of the incident (the “surveillance video”). The police officer responsible for compiling the footage testified about the surveillance video and pointed out important time stamps.
[20] The complainant’s 9-1-1 call was placed at approximately 3:21 a.m. She estimated that the intruder had woken her up at 3:16 a.m. and that three to five minutes had elapsed between the time the intruder left the bedroom and when she had gotten out of bed and called 9-1-1.
[21] Around these critical times, the appellant was the only person depicted on the surveillance video near the complainant’s apartment. According to the surveillance video, at 2:50:18 a.m. the appellant was near the rear exit door of the building using a handheld mobile device. At 2:50:45 a.m., he opened the rear door, wedged a stick in the door to prop it open, and exited the building. At 3:21:48 a.m., the appellant was pictured entering the lobby from the hallway where the complainant’s apartment was located. He eventually took the elevator back up to his floor.
The appellant’s evidence regarding his whereabouts during the incident
[22] The appellant lived on the 21st floor of 43 Thorncliffe. He worked as a taxi driver.
[23] The appellant identified himself on the surveillance video, conceding that he was the man seen leaving the hallway leading from the complainant’s apartment around the time the intruder fled and the 9-1-1 call was made.
[24] However, the appellant denied he was the intruder. He explained his appearance on the surveillance video at the relevant times by stating he had returned to his taxi in order to retrieve his cell phone, which he had inadvertently left behind after his shift. He explained that he had decided to use the rear door to exit the building, which he knew could be propped open, when he realized he did not have his key fob to get back in.
[25] The appellant stated that the mobile device he is holding in the surveillance video was an iPad Mini 2, not a cell phone. He testified that he was likely playing a game on the iPad as he walked.
[26] The appellant further testified that when he retrieved his cell phone from the taxi, he noticed he had a missed phone call from his girlfriend. He said he remained in the taxi to wait for potential taxi calls. While sitting in his taxi, the appellant said he called his girlfriend back, a phone call he estimated had lasted approximately 25 minutes. [1]
[27] The appellant’s evidence was that he used a different route to return to his apartment than the one he had taken when going out to his taxi. This alleged route was not captured in the surveillance video as there was no security camera coverage along that route. The appellant said he took the alternate route because it was cold and he believed the stick he had used to prop open the rear exit door might have been cleared, so he decided to enter the building through a different door closer to where his taxi was parked.
[28] On the appellant’s evidence, his eventual re-entry through this alternate route coincided with his appearance on the surveillance video near the complainant’s apartment shortly after the estimated time of the incident.
[29] In cross-examination, the trial Crown challenged several aspects of the appellant’s evidence. Notably, based on the apparent size of the device in the appellant’s hands on the surveillance video, the trial Crown suggested that he was carrying a cell phone, not an iPad, and that he did not in fact go to his taxi. The appellant disagreed.
The trial judge’s key findings
[30] The trial judge accepted the complainant’s eyewitness identification of the appellant as the man she saw in the apartment pointing a knife at her. She found the complainant “credible”, notwithstanding her failure to identify the appellant in the photo lineup: at para. 234.
[31] In her reasons for judgment, the trial judge referred to the appellant’s evidence as to his whereabouts around the time of the incident as his “alibi defence”. She referred to his evidence about the return route he had allegedly taken through the building as the “alibi route”.
[32] In support of the complainant’s identification of the appellant, the trial judge found that the Crown had disproved the appellant’s alibi defence by “challenging as unreasonable” the inference that the appellant had been elsewhere when the incident occurred. Relying in part on the surveillance video, she found the appellant’s alibi defence “implausible” and his credibility “lacking”. She specifically rejected the appellant’s contention that the video showed him holding an iPad, concluding that she believed he was carrying a cell phone. The trial judge therefore found that the appellant had “concocted” the 25-minute stay in his taxi to “mislead the court” as to his whereabouts at the time of the incident.
[33] The trial judge also rejected the remaining aspects of the appellant’s defence, which were premised on the theory that the incident had never occurred. First, the appellant alleged that the complainant had made up the incident as an excuse to visit her husband, who had recently moved to Edmonton for work. The trial judge determined that this was not sensible. In the alternative, the appellant suggested that the complainant had simply dreamt the incident. The trial judge found no air of reality to this suggestion.
[34] In light of the foregoing, the trial judge stated that “the only reasonable conclusion” to be drawn from the totality of the evidence was that the appellant was “in the [complainant’s] apartment … when the crime was being committed”. The trial judge found nothing to raise a reasonable doubt as to the appellant’s guilt of breaking into and entering the complainant’s apartment, assaulting her by threatening her with the knife taken from the dining room table, and then stealing the knife.
[35] Accordingly, the trial judge convicted the appellant on all four counts.
ISSUES ON APPEAL
[36] The appellant advances five grounds of appeal with respect to his convictions. Given the overlap between two of those grounds, which both relate to identification, the issues before me can be stated and approached conveniently as follows:
The trial judge erred by relying on the complainant’s in-dock identification of the appellant without properly considering material inconsistencies in the complainant’s evidence on identification;
The trial judge erred by finding the appellant had concocted or fabricated his evidence about his whereabouts around the time of the incident without independent evidence of fabrication;
The trial judge erred by characterizing the appellant’s defence as one of “alibi” and drawing an adverse inference from the appellant’s failure to give the Crown advance notice of that alibi defence; and
The trial judge misapprehended the surveillance video evidence.
[37] I will consider each of these grounds of appeal in turn.
(1) The Trial Judge Did Not Err Regarding the Identification Evidence
[38] This prosecution turned on the identification of the intruder. Despite acknowledging alleged inconsistencies in the complainant’s evidence, the trial judge accepted her identification of the appellant. The appellant contends that in doing so, the trial judge erred by (a) failing to adequately resolve material contradictions in the complainant’s evidence on identification, and (b) erroneously relying on the complainant’s in-dock identification as “important direct evidence” of the appellant’s guilt.
[39] As I will explain, I would not give effect to either submission.
(a) The trial judge properly considered the impugned inconsistencies
[40] In her analysis of the identification issue, the trial judge summarized the alleged inconsistencies in the complainant’s identification evidence, several of which I canvassed above. At paras. 197-98, the trial judge explained why these inconsistencies did not, in her view, undermine the complainant’s identification of the appellant as the intruder:
In assessing the identification evidence, the context in which [the complainant] formed a description of the intruder must be considered. I also have regard to the time lapse between the crime and the descriptions she gave in the years afterwards.
[The complainant] described her experience as very frightening. The incident happened quickly and within minutes the intruder ran out of the room. [The complainant] testified there was sufficient light in the bedroom coming from the lights in the hallway and the adjacent bathroom. She said there was sufficient light to see what the intruder looked like. He stood close to her face. It is understandable why [the complainant] might not be able to recount the finer details of his description given the speed with which the incident occurred and her shock and fear at an intruder being in her bedroom in the middle of the night with a knife trained on her while she lay in bed with her children.
[41] Further, the trial judge found, at para. 199, that the complainant’s initial description of the intruder to police met the “general description” of the appellant. She noted that this was the description “closest in time to the incident”.
[42] According to the trial judge, at para. 200, the alleged inconsistencies in the complainant’s identification evidence at trial could be explained by the “exigencies of her experience and the passage of time.” She held that inconsistencies in a witness’ testimony on minor matters or matters of detail are not unexpected, and witnesses are not held to a standard of absolute recall. These inconsistencies, which the trial judge described as “minor,” did not have an impact on her assessment of the complainant’s credibility: at paras. 201-202.
[43] In my view, the trial judge properly considered the contradictions in the complainant’s evidence. It was open to her to find that, in the circumstances, these contradictions did not undermine the credibility of the complainant with respect to identification.
(b) The trial judge properly discounted the in-dock identification
[44] Moreover, the trial judge explicitly discounted the complainant’s in-dock identification of the appellant and addressed the complainant’s failure to identify the appellant in the photo lineup:
I find the fact that [the complainant] did not identify [the appellant] on the photo lineup is of little consequence since the photo of [the appellant] was taken years earlier when [the appellant] had a full head of black hair. Equally, her in-dock identification of [the appellant] as the intruder is of minimal consequence on its own since it is well-known that in-dock identification is notoriously unreliable and should be given limited weight … In-dock evidence is “deceptively credible, largely because it is honest and sincere” … I do not accept [the complainant’s] in-dock identification alone as evidence pointing to guilt. [Citations omitted.]
[45] Contrary to the appellant’s submission, in my view this passage shows that the trial judge put little weight on the in-dock identification. Rather, she considered the in-dock identification as just one aspect of the totality of evidence before her relevant to the identification issue.
[46] Accordingly, I find the trial judge committed no error in reaching her conclusions on identification stemming from the complainant’s evidence. She was entitled to accept that evidence as credible and to find that, despite inconsistencies on “matters of detail”, the complainant had reliably identified the appellant as the intruder.
[47] However, the challenges with the identification evidence put added significance on the other evidence in the case and how it was treated by the trial judge. Indeed, the trial judge asserted, at para. 192, that her conclusion on the identification issue worked “in conjunction with the circumstantial evidence of [the appellant’s] whereabouts at the time the crime was committed.” At para. 203, she noted that “any deficiency or doubt that might linger” with respect to identity would be “tempered” if a “material link” could be established between the intruder and the male seen in the surveillance video walking near the complainant’s apartment shortly after the 9-1-1 call. At para. 234, the trial judge found that this link had been established, stating that the complainant’s identification evidence was “bolstered” by the Crown’s “ability to disprove” the appellant’s testimony regarding his whereabouts when the incident occurred.
[48] It is clear from these passages that the trial judge’s treatment of the appellant’s evidence as to his whereabouts was crucial to the outcome of this trial. As such, I will next turn to the alleged error made by the trial judge in considering that evidence.
(2) The Trial Judge Erred in Drawing an Inference of Guilt from Disbelief
The issue stated
[49] The appellant submits that the trial judge erred by “jumping” from disbelief of the appellant’s evidence to a finding that he deliberately fabricated his evidence. He contends that the trial judge failed to apply the legal principles governing fabricated exculpatory statements.
[50] Specifically, the appellant argues that the trial judge required independent evidence of fabrication, apart from her disbelief of his alibi defence, to support her conclusion that his evidence was fabricated. The appellant says there was no such evidence. He contends the trial judge conflated disbelief and concoction by erroneously relying on inconsistencies between the appellant’s testimony and the surveillance video as proof that his evidence was not just false, but also concocted to avoid culpability.
[51] I would allow the appeal on this ground. Before explaining the trial judge’s error in more detail, it is helpful to review the applicable legal principles.
The governing principles
[52] It is well-established that a trier of fact cannot use their rejection of an accused’s testimony as a piece of circumstantial evidence to convict in the absence of independent evidence that the testimony was deliberately fabricated or concocted to avoid culpability: R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), leave to appeal refused, [1998] S.C.C.A. No. 450; R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.); S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2019), at ch. 30-34.
[53] In Coutts, at p. 203, Doherty J.A. explained the rationale underlying this rule:
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 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.
[54] In criminal trials, the distinction identified in Coutts between an exculpatory statement that is disbelieved, and one that is determined to have been fabricated or concocted to avoid culpability, is of critical importance. This is because a statement that is merely disbelieved is not evidence that strengthens the Crown’s case, while a statement that has been deliberately concocted is “capable of supporting an inference of guilt”: O’Connor, at para. 17. Distinguishing between disbelief and fabrication is thus essential to ensure triers of fact properly apply the burden of proof in cases where an accused testifies: Coutts, at p. 203.
[55] Requiring independent evidence of fabrication helps to maintain this key distinction. The kind of evidence that may be considered “independent” in a particular case will depend in part on where the exculpatory statement at issue originated: O’Connor, at paras. 22-23. Unlike with out-of-court exculpatory statements, the circumstances surrounding an accused’s in-court testimony, such as logical implausibility or internal inconsistencies arising from that testimony, cannot constitute independent evidence of fabrication: O’Connor, at paras. 23-25; R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 48.
[56] In other words, it is impermissible for a trier of fact who disbelieves an accused’s in-court testimony to make a finding of fabrication absent evidence that is independent of both (1) the evidence contradicting the accused’s testimony, and (2) the fact that the accused is found to have testified falsely at trial: O’Connor, at para. 23; Wright, at paras. 46-48. For example, with respect to in-court exculpatory testimony, independent evidence of fabrication may arise from another witness’ testimony indicating that the accused attempted to persuade them to lie in court 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, leave to appeal refused, [2010] S.C.C.A. No. 499.
[57] The principles articulated in Coutts and O’Connor regarding the distinction between disbelief and fabrication and the requirement for independent evidence of fabrication have been repeatedly affirmed and applied in Ontario and adopted by other Canadian appellate courts: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 57; R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at paras. 167-174; R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 285-288, leave to appeal refused, [2017] S.C.C.A. No. 17; R. v. Laliberté, 2016 SCC 17, [2016] 1 S.C.R. 270, at para. 4; R. v. Oland, 2016 NBCA 58, [2016] N.B.J. No. 288, at paras. 64-72, leave to appeal refused, [2016] S.C.C.A. No. 188; Wright, at paras. 38-45; R. v. Al-Enzi, 2021 ONCA 81, at paras. 38-46.
[58] When asked to review a trial judge’s use of disbelieved evidence arising from in-court testimony, this line of jurisprudence indicates that appellate courts should conduct four interrelated inquiries:
a) Did the trial judge disbelieve the appellant’s testimony?
b) If so, did the trial judge also find that the appellant fabricated their testimony?
c) If the trial judge found the appellant’s testimony was fabricated, was there independent evidence of fabrication capable of supporting that finding?
d) If not, did the trial judge, despite the absence of independent evidence of fabrication, erroneously rely on the finding of fabrication as circumstantial evidence of guilt?
[59] As I explain below, in light of these inquiries, I conclude that the trial judge fell into error by drawing an inference of guilt based on her finding that the appellant’s evidence was fabricated, a finding which was unsupported by independent evidence of fabrication.
(a) The trial judge disbelieved the appellant’s evidence
[60] The trial judge clearly did not believe the appellant’s testimony as to his whereabouts at the relevant time, which she called the “25-minute alibi”. She concluded, at para. 208, that the surveillance video showed the appellant “carrying a cell phone” before exiting the building, not an iPad Mini. This led her to reject the appellant’s explanation for his appearance on the surveillance video, which was that he had gone to his vehicle to retrieve his cell phone.
[61] The trial judge further found, at para. 223, that the appellant’s evidence about the “alibi route” from his taxi back through the building and out of reach of the surveillance cameras “simply does not have the ring of truth”.
[62] To be clear, as the appellant fairly concedes, it was open to the trial judge to disbelieve this evidence on the record before her. Indeed, the Crown’s cross-examination of the appellant highlighted several implausible aspects of his account.
[63] However, the trial judge went beyond mere disbelief of the appellant’s testimony; she made an express finding of fabrication.
(b) The trial judge found that the appellant fabricated his evidence
[64] Immediately after finding that the surveillance video showed the appellant carrying a cell phone, rather than an iPad, the trial judge reasoned as follows, at paras. 209-211:
Then the question is, why would [the appellant] not be truthful about what he had in his hands as he left through the rear door?
The cell phone takes on a pivotal role in [the appellant’s] alibi. To retrieve his cell phone is the reason he left the building through the rear door; it is his reason for remaining in the taxi after he retrieved messages from his girlfriend and speaking to her for 25 minutes while he says he was waiting for taxi calls; it is the reason he took the circuitous route [back from his taxi], so he could get reception to retrieve voice mail and email messages about taxi customers. The cell phone provides the reason that he was not the intruder that invaded [the complainant’s] home.
So if he was not going to his taxi to retrieve his cell phone because he already had his cell phone that raises the question of where he was going and what he did after he left the building at 2:50:45 a.m. I am entitled to draw an adverse inference in relation to the 25-minute alibi and I do draw the adverse inference that at trial [the appellant] concocted the 25-minute stay in his taxi. One thing that becomes clear on all the evidence is that [the appellant] was not telling the truth about going to his taxi to retrieve his cell phone. [Emphasis added.]
[65] Elsewhere in her reasons, at para. 224, the trial judge stated that she believed the appellant “concocted a rather elaborate account of his whereabouts” at the critical time. At para. 232, she also referred to the appellant’s “fabrications related to his cell phone and the concocted story” about how he came to be in the hallway near the complainant’s apartment “at the same time the intruder fled”.
[66] In my view, these passages show that the trial judge not only disbelieved the appellant’s account but found that he deliberately fabricated his evidence.
[67] The authorities are clear that such a finding is impermissible absent independent evidence of fabrication. I will now assess whether any such evidence was before the trial judge in this case.
(c) The trial judge did not identify any independent evidence of fabrication and there was none before her
[68] In her reasons, the trial judge did not advert to the governing case law with respect to fabrication or explicitly refer to any independent evidence grounding her finding that the appellant had fabricated or concocted his evidence.
[69] Where a trial judge fails to advert to independent evidence of fabrication, the jurisprudence indicates that an appellate court may assess whether the record reveals sufficient such evidence to show that the trial judge’s omission did not prejudice the appellant: Wright, at paras. 48-50; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 106, leave to appeal refused, [2010] S.C.C.A. No. 263; R. v. Selvanayagam, 2011 ONCA 602, 281 C.C.C. (3d) 3, at paras. 31-33.
[70] On the record before the trial judge, I find no independent evidence of fabrication that could support an inference of fabrication.
[71] Crucially, this appeal involves in-court exculpatory testimony, as opposed to out-of-court exculpatory statements. As noted above, this limits the scope of independent evidence which could have properly grounded a finding of fabrication. Namely, circumstantial evidence suggesting the falsity of the appellant’s in-court statements could not also constitute independent evidence that those statements were fabricated.
[72] However, this is precisely the type of evidence relied upon by the trial judge to support her finding of fabrication. No other witness provided evidence to contradict or challenge the appellant’s evidence as to his whereabouts at the time in question. Instead, the trial judge found the appellant’s evidence strained “credulity” based on several internal inconsistencies and logical improbabilities. She also relied on her assessment of the appellant’s demeanour as a witness to support her view that he had deliberately misled the court.
[73] In accordance with O’Connor, these considerations cannot be properly characterized as evidence independent of the appellant’s testimony nor of the trial judge’s finding that his testimony was false.
The surveillance video was not independent evidence of fabrication
[74] The trial judge also relied on inconsistencies between the appellant’s testimony and the surveillance video to conclude that the appellant had fabricated his evidence. The Crown argues that, if independent evidence of fabrication was required in this case, the surveillance video constituted sufficient such evidence to ground the trial judge’s adverse finding of fabrication against the appellant.
[75] I do not agree. The surveillance video evidence was not independent of the appellant’s exculpatory testimony. The probative value of the surveillance video, according to the trial judge, was to show that the appellant “was not telling the truth” in his evidence about his whereabouts around the time of the incident. In other words, as in Wright, the evidence the Crown alleges to be “independent” evidence of fabrication is the very same evidence the trial judge relied upon in disbelieving the appellant’s testimony.
[76] Accordingly, even if the trial judge had expressly relied on the surveillance video as independent evidence of fabrication, such reliance would have been in error. Simply put, it was not open to the trial judge to rely on the surveillance video as the basis on which to both disbelieve the appellant’s evidence and to make a finding of fabrication or concoction against him.
(d) Despite the absence of independent evidence of fabrication, the trial judge erroneously relied on her finding of fabrication as circumstantial evidence of guilt
[77] Having identified an erroneous finding of fabrication against the appellant, the only remaining question is: how did the trial judge use that finding?
[78] The trial judge’s reasons indicate that she relied on her finding of fabrication to infer consciousness of guilt on behalf of the appellant. Specifically, at para. 211, the trial judge drew the “adverse inference” against the appellant that he had “concocted” his alibi defence at trial. This inference led the trial judge to conclude the appellant was “hiding something” and had attempted to “mislead the court” as to his whereabouts at the time of the incident.
[79] These passages indicate that the trial judge not only rejected the appellant’s story as false, thus undermining his credibility, but that she then relied on her disbelief of the appellant’s evidence to infer that he must have deliberately fabricated that evidence to avoid culpability for the incident in the complainant’s apartment.
[80] In my view, in light of the problems with the complainant’s identification evidence, this reasoning contributed to the trial judge’s decision to convict.
(e) Conclusion on the fabrication ground
[81] I would find that the trial judge drew an inference of guilt against the appellant based on a finding of fabrication. I see no independent evidence on the record before the trial judge that could have grounded such a finding.
[82] Therefore, I would find that the trial judge’s inference of fabrication was in error. This erroneous reasoning was integral to the appellant’s conviction, particularly given the limitations in the complainant’s evidence on identification and the interdependence acknowledged by the trial judge between the identity issue and the appellant’s evidence as to his whereabouts. This interdependence reinforces my view that the trial judge’s improper finding of fabrication played a material role in her conclusion that the appellant was guilty.
[83] Accordingly, I would find that the appellant succeeds on this ground of appeal.
(3) The Trial Judge’s Reference to Alibi Was Not a Reversible Error
[84] The appellant claims that the trial judge erred in referring to his evidence relating to his activities at the time of the attack as an “alibi”. The appellant argues that this evidence was not an alibi as it was not dispositive of his having committed the offence. He says the so-called “alibi” evidence, including regarding the phone call in the taxi, merely explained his movements that evening. Therefore, the appellant submits that the trial judge erred by characterizing this evidence as alibi and consequently drawing an adverse inference against him for failing to disclose it to the Crown in advance of trial.
[85] In rejecting the so-called “alibi defence”, the trial judge concluded as follows, at para. 204:
I do not accept [the appellant’s] alibi defence. I arrive at this conclusion from the accumulated effect of problems I have with the credibility and plausibility of [the appellant’s] account of how he found himself walking down the north hallway at 3:21:48 a.m. on October 26th. No singular problem with his evidence on its own leads me to my conclusion. [Emphasis added.]
[86] While not determinative to the outcome of this appeal, I have reservations about whether the appellant’s evidence was properly characterized as alibi. A true alibi “places an accused elsewhere and does not implicate the accused in any way in the crime with which he or she is charged”: R. v. Wright, 2009 ONCA 623, 98 O.R. (3d) 665, at para. 24. The appellant’s explanation of his whereabouts did not place him elsewhere – it placed him right outside the complainant’s apartment around the time of the incident, albeit for an allegedly innocent reason. By characterizing this as an “alibi defence”, the trial judge improperly opened the door to consideration of the timeliness of its disclosure, resulting in clear implications for the appellant’s right to silence.
[87] Given these concerns, in my view it would have been preferable for the trial judge to have avoided considering the timeliness of the disclosure in this case.
[88] Nevertheless, I would find no reversible error with respect to the trial judge’s characterization of this evidence. The trial judge appropriately linked her rejection of what she called the “alibi defence” to her well-supported findings on the appellant’s credibility. In my view, it was open to the trial judge to reject the appellant’s evidence.
[89] Indeed, the late disclosure of the so-called alibi was not the sole – nor even the primary – basis on which the trial judge rejected the appellant’s account. Rather, she rejected his evidence based on the “accumulated effect” of her overall assessment of the appellant’s credibility and the implausibility of his story. It is clear from the trial judge’s reasons that, however framed, she did not believe the appellant and his evidence did not leave her with a reasonable doubt as to his guilt.
[90] Accordingly, I am not persuaded that the trial judge’s characterization of the so-called “alibi” evidence warrants appellate intervention.
(4) The Trial Judge Did Not Misapprehend the Surveillance Evidence
[91] The appellant raises the trial judge’s alleged misapprehension of the surveillance video evidence as a further ground of appeal. The time stamps from the various video surveillance cameras in the building were not aligned, such that some of the footage in the surveillance video adduced at trial showed inaccurate times.
[92] Despite the trial judge acknowledging, at para. 133, that the time stamps on certain cameras were “not entirely in sync”, the appellant contends the trial judge erroneously treated the surveillance video times as established evidence. The appellant takes particular issue with the trial judge’s conclusion, at para. 227, that the appellant’s appearance in the surveillance video time stamped at 3:21 a.m. showed that he was present in the hallway near the complainant’s apartment “immediately after the incident”.
[93] I would not give effect to this submission.
[94] There was evidence before the trial judge that the time stamps were “fairly accurate”. Moreover, the relevant times were not contradicted by the evidence of the appellant. In fact, the times estimated by the appellant were generally consistent with the surveillance video time stamps and with the time the complainant made the 9-1-1 call. Indeed, as the Crown points out, at trial all parties were aware that the surveillance video time stamps were not exact. At most, the defence suggested that some of the cameras may have been off by around two and a half minutes. Yet no one suggested that such a timing discrepancy, on its own, could have given rise to a reasonable doubt as to the appellant’s guilt.
[95] Accordingly, I am not persuaded that the trial judge erred in her treatment of the surveillance video. In my view, the trial judge’s conclusions with respect to the surveillance video were well within her discretion as the trier of fact.
CONCLUSION
[96] For reasons above, I would allow the appeal on the fabrication issue, set aside the convictions, and order a new trial on all charges.
[97] In view of my conclusion on the conviction appeal, I do not reach the sentence appeal.
Released: June 14, 2021 “J.M.F.” “Sossin J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Doherty J.A.”
[1] While an adjournment was granted to permit the Crown an opportunity to obtain the appellant’s phone records, they were unavailable due to the passage of time.