The Defence Toolkit – Sept 23, 2023 “The Good Samaritan”

2. The evidence was obtained in a manner that breached Mr. Wilson’s Charter rights

I. INTRODUCTION

[1] On July 23, 2019, in a neighbourhood in south-central Regina described by the officers in this case as frequented by gang associates and gang violence, two members of the Regina Police Service’s [RPS] gang unit arrested Stuart Sabiston for possession of stolen property, namely the bullet-proof vest he wore that day. In the course of being searched incident to that arrest, police located a folding knife in Mr. Sabiston’s pocket. Mr. Sabiston then told police that he had a firearm in his backpack. A loaded prohibited firearm was subsequently seized by the officers.

[2] While Mr. Sabiston was initially charged with possession of stolen property, the Crown ultimately stayed that charge and proceeded to trial on firearms offences only.

[3] Following a Charter application by Mr. Sabiston to exclude the firearm from evidence, a Provincial Court trial judge found Mr. Sabiston’s ss. 8 and 9 Charter rights had been breached, and that his arrest and the subsequent search were unlawful. However, in conducting a s. 24(2) Charter analysis, she found that the officers would have had a legal basis to detain Mr. Sabiston for investigative purposes, and therefore, discoverability of the firearm mitigated the seriousness of the breaches and their impact on Mr. Sabiston. She admitted the firearm into evidence. Mr. Sabiston was subsequently convicted of several firearms offences and sentenced to a lengthy penitentiary term.

[4] The breaches of Mr. Sabiston’s ss. 8 and 9 Charter rights as found by the trial judge are not at issue. I agree with my colleague Tholl J.A. that the focus of the analysis in assessing Charter breaches arising from an unlawful arrest should be on the actual choice of process utilized by the police (in this case, arrest), not an alternate, hypothetical choice of process that was theoretically available to them (being investigative detention). This approach is consistent with the Ontario Court of Appeal’s decision in R v Charley (1993), 22 CR (4th) 297 (Ont CA) [Charley], and the British Columbia Court of Appeal’s decision in R v Whitaker, 2008 BCCA 174, 254 BCAC 234 [Whitaker].

[5] What remains at issue is whether the trial judge erred in deciding that the test in R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant], favoured the admission into evidence of the firearm seized from Mr. Sabiston. This is the point that my colleague and I diverge on.

[11] While on patrol during daylight hours, Cst. Dods spotted Mr. Sabiston in an alley. He advised Cst. Ethier, who was also on patrol in the area. Constable Ethier called out to Mr. Sabiston, using his street name “Papi”. As Mr. Sabiston approached, Cst. Ethier observed that he was wearing a bullet-proof vest without a shirt underneath….

[15] Constable Ethier testified that he did not think the bullet-proof vest could be purchased in Regina but acknowledged he had not purchased one himself. Neither officer testified as to how the Reginal Police Service or other police agencies procured their bullet-proof vests.

[16] At the conclusion of the voir dire, the trial judge reviewed R v Mann, 2004 SCC 52, [2004] 3 SCR 59; R v Chehil, 2013 SCC 49, [2013] 3 SCR 220 [Chehil]; R v MacKenzie, 2013 SCC 50, [2013] 3 SCR 250 [MacKenzie]; R v Yeh, 2009 SKCA 112, 248 CCC (3d) 125 [Yeh]; and R v Chapman, 2020 SKCA 11, 386 CCC (3d) 24 [Chapman]. She heard argument from both Mr. Sabiston and the Crown with respect to the issue of whether the officers had reasonable grounds for Mr. Sabiston’s arrest. She determined that Mr. Sabiston’s s. 9 Charter rights had been breached, and that his arrest was unlawful…

Now, Constable Ethier subjectively believed that the vest was stolen as he believed such vests could not be purchased in Regina, it was identical to RPS-issued vests, and Mr. Sabiston was known to be a gang member. The officers had received no complaint of such vest having been stolen. So I find that although Constable Ethier honestly believed that the vest was stolen, the circumstances fell short of providing an objectively reasonable basis to arrest Mr. Sabiston for possessing a stolen bulletproof vest. However, I find that he had grounds, that is the officer had grounds, to reasonably suspect the vest to be stolen and was acting on more than a hunch or generalized suspicions. He therefore would have had the right to detain Mr. Sabiston for investigation purposes, but that’s not what Constable Ethier did; he invoked the statutory power of arrest.

(Emphasis added)

[17] While the trial judge found that the officers had a reasonable suspicion that would have been sufficient to have legally detained Mr. Sabiston, this did not salvage the s. 8 Charter breach in relation to the search incident to the unlawful arrest.

[18] The trial judge then proceeded with the s. 24(2) Charter analysis, finding that, as the officers had a basis to legally detain Mr. Sabiston, the firearm was discoverable. She found this mitigated the seriousness of the Charter breach on the first stage of the Grant analysis, and its corresponding impact on Mr. Sabiston in the second stage of the Grant analysis:

[19] After conducting her Grant analysis, as will be later discussed in more detail, the trial judge admitted the firearm into evidence.

IV. ANALYSIS

A. Did the facts found by the trial judge amount at law to a reasonable suspicion that the bullet-proof vest was stolen?

1. Reasonable suspicion: the legal framework

[24] As noted in MacKenzie, Chehil, and subsequent authority, an assessment of reasonable suspicion requires “a careful individualized assessment of the totality of the circumstances” (Chehil at para 40), considering the “constellation of objectively discernable facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation” (Chehil at para 29, emphasis added; see also R v Ahmad, 2020 SCC 11 at paras 24 and 46, [2020] 1 SCR 577 [Ahmad]; R v Brown, 2021 NLCA 27 at para 8; R v Reddy, 2010 BCCA 11 at para 67, 251 CCC (3d) 151 [Reddy]; and R v Duong, 2018 SKCA 25 at para 28, 361 CCC (3d) 491). This “constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour” (Chehil at para 46). Further, there must be a nexus “between the criminal conduct that is suspected and the investigative technique employed” (Chehil at para 36; Mann at para 34).

[25] In assessing whether a reasonable suspicion has been established, the subjective belief of the officer(s) must be objectively reasonable. The analysis in this regard should be conducted through the “lens of a reasonable person ‘standing in the shoes of the police officer’” (MacKenzie at para 63; R v Tran, 2007 BCCA 491 at para 12, 247 BCAC 109). The reasonable suspicion inquiry cannot look to circumstances or facts learned by the police after a search has been executed (Chehil at para 34; R v Kang-Brown, 2008 SCC 18 at para 92, [2008] 1 SCR 456 [Kang-Brown]).

[26] The reasonable suspicion standard requires that the police suspicion be particularized. “Generalized” suspicion is insufficient to ground reasonable suspicion. It must be based on more than a “hunch” or an “intuition grounded in an officer’s experience” (MacKenzie at para 64; Chehil at para 47). While training and experience may provide an objective experiential basis for grounding reasonable suspicion, this does not mean that deference is owed to a police officer’s subjective belief because they have unique training and experience in the field (Chehil at para 47; MacKenzie at para 64). A court must “be prepared to look carefully at what is held out to be ‘experience’ or ‘training’ in order to ensure that the integrity of the reasonable suspicion concept is maintained” (Yeh at para 53).

[27] An officer’s “educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard” (Chehil at para 47). It is therefore “critical” that the line between “a hunch and reasonable suspicion be maintained to prevent the police from engaging in discriminate or discriminatory practices”, while still allowing police to act without being subject to undue scrutiny (MacKenzie at para 65).

[29] Several points emerge from Yeh that are pertinent. To begin, the majority in Yeh affirmed the Mann requirement that a reasonable suspicion must be tethered to a “particular crime” (Mann at para 45; Yeh at para 84). This nexus is required to ensure police do not detain an individual “out of a general sense he or she might be doing something unlawful” (Yeh at para 84).

[30] Next, the majority in Yeh was clear that police “do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity”, or to “determine whether an individual is, in some broad way, ‘up to no good’” (at para 75). Justice Richards emphasized that “[i]n order to justify an investigative detention, the police suspicion must be particularized, i.e. it must relate to specific criminal wrongdoing” – although the extent to which a suspicion must be particularized was not at issue in the Yeh appeal (at para 74).

[31] Lastly, the majority in Yeh held that “[t]he question of whether the police may detain an individual in connection with a suspected offence is a different matter than the idea that suspicion must be particularized” (at para 77, emphasis in original). Justice Richards wrote that “[a]ny analysis which fails to appreciate the difference between these two notions will, of necessity, be flawed” (at para 74).

[32] The matter unaddressed by Yeh, that is, the extent to which police suspicion must be particularized, was dealt with in Chehil. As noted above, it held that a reasonable suspicion requires that “the constellation of objectively discernible facts...give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation” (at para 26). While there need not be evidence of a “specific known criminal act” (consistent with the Yeh majority’s discussion of “known” versus “suspected” offences), the police must “point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion” (Chehil at para 35).

[33] With these principles in mind, I turn now to Mr. Sabiston’s case.

[36] To consider: summarize, the trial judge had the following constellation of facts before her to

(a)  Constable Dods observed Mr. Sabiston walking in daylight, in an alley, and contacted Cst. Ethier, who was nearby.

(b)  Constable Ethier called out to Mr. Sabiston, who responded by approaching, and as he did so, Cst. Ethier observed that he was shirtless but wearing a bullet-proof vest.

(c)  Constable Ethier believed the bullet-proof vest to look like, and be identical to, the vests issued to RPS and deputy sheriffs.

(d)  Both constables knew Mr. Sabiston was a gang member and was on a weapons prohibition.

(e)  Both constables knew the alley was in a high gang-crime area of Regina.

(f)  Police had received no reports of stolen bullet-proof vests.

(g)  Cst. Ethier knew that it was possible to purchase a bullet-proof vest on the internet, but he believed they could not be purchased in Regina.

[37] Given that Cst. Ethier knew a bullet-proof vest could have been purchased online, coupled with the fact that no reports had been made of stolen vests – his subjective belief that the bullet-proof vest was stolen hinged mostly, if not primarily, on his past dealings with Mr. Sabiston, a known gang member, who was walking in a high gang crime area while wearing suspicious attire. This is demonstrated by Cst. Ethier’s testimony that “it’s pretty hard to not be able to find something on the internet nowadays... . But it was the totality of the -- like, the events that were - - and the signs that kind of surrounded it that formed in my mind as to reasonable grounds to believe”. While the reasonable suspicion standard “does not require the police to investigate to rule out exculpatory circumstances” (Chehil at para 6, see also MacKenzie at para 35), the presence of this possible innocent explanation was a factor to be weighed in the totality of the circumstances.

[38] Police are entitled to consider knowledge of past dealings with an individual (R v Clayton, 2007 SCC 32 at para 31, [2007] 2 SCR 725 [Clayton]). The location of an individual can sometimes be taken into account when deciding whether an officer formed a reasonable suspicion (see Ahmad at para 20). However, the significance of such circumstances depends on the facts, and must be considered in light of the need for particularization. For example, police cannot rely solely on an individual’s gang affiliation to justify an investigative detention (see R v Nguyen, 2019 ONSC 5849 at paras 83–84; see also United States v Daniel, 804 F Supp 1330 (Nev Dist Ct 1992), nor on the fact that an individual is acting suspiciously in a high crime neighbourhood (see Reddy). These cases illustrate that the mere fact that a person is a known criminal or in a high crime neighbourhood is not enough to ground reasonable suspicion.

[39] Here, the officers testified only to a general involvement of Mr. Sabiston with gang criminality. They did not articulate any other suspected offence or criminal behaviour, upon which to particularize their suspicion. The only offence tethered to Cst. Ethier’s subjective belief was possession of stolen property. While I acknowledge that the standard of reasonable suspicion deals with possibilities, rather than probabilities of a crime being committed (Chehil at para 27), a sufficient nexus is still required between a reasonable suspicion and a “particular crime” (Mann at paras 34 and 45). There is no such nexus here. The fact that Mr. Sabiston was on a weapons prohibition and a gang member does not reasonably tie Cst. Ethier’s subjective belief to a stolen property offence. The officers did not testify to having knowledge of Mr. Sabiston’s criminal record, beyond an awareness that he was on a weapons prohibition. They did not give evidence that Mr. Sabiston had a history of property or theft related criminality. There was no report on the date in question that he was involved in such criminality.

[40] In my view, the officers took a leap, based on intuition or a hunch, placing undue weight on Mr. Sabiston’s gang affiliation and the nature of the neighbourhood, despite the absence of particularized conduct or evidence supporting Mr. Sabiston’s involvement in criminality related to stolen property. With respect, this is the type of problematic use of police authority that Chehil cautions against. As noted in Chehil, “blanket” or “general” suspicion of criminality “will not be sufficient” (at para 30). As it also instructs, courts in reviewing reasonable suspicion are to be “wary that factors arising out of police experience are not in fact stereotypical or discriminatory” (at para 42).

[41] … By the time Mr. Sabiston volunteered to police that he had a firearm in his backpack, he was already unlawfully arrested and in the throes of an illegal search. Of course, circumstances learned by police following the execution of a search cannot be relied upon to sustain or expand a reasonable suspicion formed earlier (Chehil at para 34; see also Kang-Brown at para 92).

[42] For these reasons, I am of the view that Cst. Ethier’s belief that the bullet-proof vest was stolen was not objectively reasonable. It may have been, with a different particularization of the suspicion, that the officers could have met the threshold for detention – but that is not the case here. The fact that another possible type of criminality could have, in hindsight, been the subject of their suspicion is not relevant. Again, as noted in Yeh and Mann, investigative detention is not a means of ferreting out criminal behaviour.

[43] I conclude, as a bottom line, that Cst. Ethier had no proper basis for an investigative detention. As I will explain, this determination undermines the trial judge’s consideration of discoverability of the firearm in the s. 24(2) analysis.

B. Did the trial judge err in her s. 24(2) Charter analysis by considering discoverability of the firearm?

1. The trial judge’s s. 24(2) analysis

[46] Discoverability of evidence is a permissible consideration in the Grant inquiry in the first and second stage, and particularly “in assessing the actual impact of the breach on the protected interests of the accused” (at para 122). However, Grant does not stand for the proposition that discoverability will impact the s. 24(2) analysis in every scenario, as that depends on the likelihood of discovery with and without the Charter breach, and what level of speculation by the court it entails. As indicated recently in R v Tim, 2022 SCC 12, 412 CCC (3d) 147 [Tim]:

[94] On the other side of the ledger, I am not prepared to speculate as to whether the evidence would have been discovered absent the Charter breaches. It is true that if the evidence were only discoverable through the Charter breach, then there would be a greater impact on the accused’s Charter-protected interests (see Grant, at paras. 122 and 137; R. v. Keller, 2019 ABCA 38, 372 C.C.C. (3d) 502, at para. 64). However, “in cases where it cannot be determined with any confidence whether evidence would have been discovered” absent a Charter breach, “discoverability will have no impact on the s. 24(2) inquiry” (Grant, at para. 122; see also Hill, Tanovich and Strezos, at § 19:49). Courts should not engage in speculation about discoverability (see R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 70).

[47] The trial judge’s use of discoverability in the s. 24(2) analysis was flawed, as she erred in finding that the officers had a reasonable suspicion in the bullet-proof vest having been stolen that justified an investigative detention. It follows that there could not have been a lawful search incident to that detention. Therefore, absent a Charter breach in this particular factual matrix, the firearm was not discoverable. In a related vein, to the extent the trial judge found that Cst. Ethier’s reasonable suspicion mitigated the seriousness of the breach, and somewhat lessened the impact of the breach of Mr. Sabiston, there was also an error.

2. The s. 24(2) analysis afresh

a. Stage one: seriousness of the breach

[50] The trial judge found that the search of Mr. Sabiston was no more than what was necessary for officer safety, that he was not mistreated, and that the Charter breaches were not wilful or negligent violations of his rights, thereby falling on the lower scale of seriousness and attenuating in favour of admission of the evidence. However, the trial judge determined the severity of the breach on the basis that Cst. Ethier had a reasonable suspicion sufficient to detain Mr. Sabiston for possession of stolen property. In light of my determination that was an error, I am of the view that the breaches here were on the more serious end of the spectrum, as they were not inadvertent, technical or minor. I will explain.

[52] While the trial judge found that the police did not act improperly, I note that an officer cannot be said to be acting in good faith if “the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards” and that “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct” (Tim at para 85, citing R v Paterson, 2017 SCC 15, [2017] 1 SCR 202 [Paterson], Harrison and Le). In my respectful view, the breaches were, taken in their best light, negligent – and at worst, the result of ignorance as to Charter standards. This is so given the heavy reliance by the officers on who Mr. Sabiston was, and where he was, at the time of his arrest.

[53] In summary, I find the breaches are on the serious end of the spectrum and representative of a marked departure from Charter standards. This branch of Grant weighs in favour of exclusion of the evidence.

b. Stage two: impact of the breaches on Mr. Sabiston

[55] Mr. Sabiston’s s. 8 and s. 9 Charter rights were breached. Section 9 protects “individual liberty from unjustified state interference” (Tim at para 91, citing Grant at para 20, Le at para 152), while s. 8 protects “individual privacy and human dignity” (Tim at para 91, citing Grant at para 78, R v Cole, 2012 SCC 53 at para 91, [2012] 3 SCR 34). The trial judge found the breaches had a “significant” impact on Mr. Sabiston, given his arrest, subsequent search and detention, but that the impact was attenuated somewhat by the discoverability of the firearm, based on her finding that the officers had a reasonable suspicion that the bullet-proof vest was stolen.

[56] I agree with the trial judge that the breaches were significant and substantially intrusive for Mr. Sabiston, but even more so than she found, as she considered the impact of the breach on the erroneous basis that Cst. Ethier could have discovered the firearm through a legal detention. I have concluded that the only basis to discover the firearm would have been through a breach of Mr. Sabiston’s Charter rights. Therefore, the fact that the evidence was not discoverable aggravates the significance of the breaches to Mr. Sabiston (Grant at para 137). I am accordingly of the view that the breaches were not transient, nor trivial, and that they profoundly impacted Mr. Sabiston, as there was no basis for his lawful detention or arrest. This branch of the Grant test weighs in favour of exclusion of the evidence.

d. Final balancing

[60] In Mr. Sabiston’s case, the first and second stages of the Grant analysis weigh strongly in favour of exclusion of the evidence, and the third weighs strongly in favour of admission. Beaver spoke to this type of circumstance in the final weighing exercise in this fashion:

[134] When undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” (Lafrance, at para. 90 (emphasis in original)). “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility” (Lafrance, at para. 90). The third line of inquiry “becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence” (R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, per Doherty J.A.; see also R. v. Chapman, 2020 SKCA 11, 386 C.C.C. (3d) 24, at paras. 125-26 and 130). It is possible that admitting evidence obtained by particularly serious Charter-infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter- protected interests (Le, at para. 141). But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission.

[62] Undeniably, the serious nature of firearms offences weighed prominently in the trial judge’s final balancing. The question that arises is whether the fact that the evidence at issue relates to possession of a firearm – and in particular, to a prohibited firearm found in the possession of a person subject to a firearms prohibition – changes the nature of the Grant enquiry. That issue was addressed in Lichtenwald, where Barrington-Foote J.A. – referring to the Supreme Court’s decision in R v Omar, 2019 SCC 32, [2019] 2 SCR 576 [Omar], which had adopted the dissenting opinion of Brown J.A. of the Ontario Court of Appeal – confirmed that there is “no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence”, and that “[t]he analytical framework prescribed by Grant enables the court to deal with evidence relating to illegal guns without losing sight of the purpose of s. 24(2)” (at para 80).

[63] The holding in Omar, echoed in Lichtenwald, has been adopted subsequently by other courts in the s. 24(2) analysis (see for example R v Tim, 2020 ABCA 469, 397 CCC (3d) 163, affirmed 2022 SCC 12, 412 CCC (3d) 147). I similarly adopt it. A firearm has no presumptively unique or transcendent status in the s. 24(2) analysis. The Grant framework inherently accounts for the seriousness of the firearm-related offences, as well as in this instance, a contextualization of Mr. Sabiston’s case in the larger consideration of the long-term repute of the justice system.

[64] Applying the above principles to the final balancing, given the serious nature of the breaches, and their significant impact on Mr. Sabiston, I find that the third branch of Grant does not tip the balance in favour of admission of the firearm. In considering the prospective, societal- focused aspect of this exercise, I find that exclusion of the firearm from evidence is in the interests of the long-term integrity of and public confidence in the administration of justice. That this was a prohibited firearm, and that Mr. Sabiston was subject to a weapons prohibition, must be balanced against the reality that the officers had no lawful basis to detain or arrest Mr. Sabiston and that these were serious Charter breaches that profoundly impacted him. In these circumstances, admission of the evidence of the firearm would have a detrimental impact on the repute of justice.

[66] In the result, I would exclude the firearm from evidence.

[70] On that basis, pursuant to s. 686(2)(a) of the Criminal Code, I would allow Mr. Sabiston’s appeal, set aside his conviction, and enter an acquittal in respect of all matters.

Tholl J.A. (in dissent)

[92] … the Crown seeks to justify the search because an investigative detention was available in the circumstances even though this is not what happened.

[93] I find that this argument has no merit. When a court is deciding whether a Charter breach occurred, it must assess what the police did, not what they could have done. The facts of the actual situation must be evaluated to determine whether there was a breach. It is the actual police power exercised that matters when examining whether there was a Charter breach, not some other power that could have potentially been used but was not. The officers did not purport to detain Mr. Sabiston for the purposes of an investigation; they arrested him.

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.

[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….

…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….

[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.).

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.

[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 issue5. 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.

[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

[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.]

(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.

[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] … 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] … 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.

[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.

[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.)?

[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

[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

[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.

[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.

[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….

[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.

Disposition

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