



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Iqbal, 2021 ONCA 416

DATE: 20210614

DOCKET: C66276

Fairburn A.C.J.O., Doherty and
    Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Iqbal

Appellant

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
    complainants 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 appellants 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 complainants identification evidence; (2) relying on the complainants
    in-court identification of the appellant; (3) mischaracterizing the appellants
    defence as one of alibi; (4) finding the appellants 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 complainants 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 buildings CCTV video footage from around the time of the incident.
    That footage showed a man entering the buildings main lobby from the direction
    of the complainants first-floor apartment. The buildings security supervisor
    confirmed for police that the man depicted was the appellant, who lived in an
    apartment on the 21
st
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 appellants photo out of the lineup. Nevertheless,
    police arrested the appellant nine days after the incident.

PROCEEDINGS AT TRIAL

The complainants 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 intruders appearance at the time of the incident.

[17]

During cross-examination, the appellants 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 intruders 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 complainants direct eyewitness identification,
    the Crowns case against the appellant was circumstantial. The Crown theorized
    that the appellant had entered the complainants 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 appellants 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 complainants 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 complainants 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 complainants apartment was located. He eventually took
    the elevator back up to his floor.

The appellants evidence regarding his
    whereabouts during the incident

[22]

The appellant lived on the 21
st
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 complainants 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 appellants 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 appellants evidence, his eventual re-entry through this
    alternate route coincided with his appearance on the surveillance video near
    the complainants apartment shortly after the estimated time of the incident.

[29]

In cross-examination, the trial Crown challenged several aspects
    of the appellants evidence. Notably, based on the apparent size of the device
    in the appellants 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 judges key findings

[30]

The trial judge accepted the complainants 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
    appellants 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 complainants identification
    of the appellant, the trial judge found that the Crown had disproved the
    appellants 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 appellants alibi defence implausible
    and his credibility lacking. She specifically rejected the appellants
    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 appellants 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 [complainants] apartment  when
    the crime was being committed. The trial judge found nothing to raise a
    reasonable doubt as to the appellants guilt of breaking into and entering the
    complainants 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.

I
SSUES 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:

1)

The trial
    judge erred by relying on the complainants in-dock identification of the
    appellant without properly considering material inconsistencies in the
    complainants evidence on identification;

2)

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;

3)

The trial
    judge erred by characterizing the appellants defence as one of alibi and
    drawing an adverse inference from the appellants failure to give the Crown
    advance notice of that alibi defence; and

4)

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 complainants 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 complainants evidence on identification, and
    (b) erroneously relying on the complainants in-dock identification as
    important direct evidence of the appellants 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 complainants
    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 complainants 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
    complainants 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 complainants 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 complainants credibility: at
    paras. 201-202.

[43]

In my view, the trial judge properly considered the
    contradictions in the complainants 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 complainants
    in-dock identification of the appellant and addressed the complainants 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 complainants] in-dock
    identification alone as evidence pointing to guilt. [Citations omitted.]

[45]

Contrary to the appellants 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 complainants
    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 appellants] 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 complainants apartment shortly after the 9-1-1 call. At
    para. 234, the trial judge found that this link had been established, stating
    that the complainants identification evidence was bolstered by the Crowns ability
    to disprove the appellants testimony regarding his whereabouts when the
    incident occurred.

[48]

It is clear from these passages that the trial judges treatment
    of the appellants 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
    appellants 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 appellants 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 judges
    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
    accuseds 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. OConnor
(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 Crowns case, while a
    statement that has been deliberately concocted is capable of supporting an
    inference of guilt:
OConnor
, 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:
OConnor
, at paras. 22-23. Unlike with out-of-court
    exculpatory statements, the circumstances surrounding an accuseds in-court
    testimony, such as logical implausibility or internal inconsistencies arising
    from that testimony, cannot constitute independent evidence of fabrication:
OConnor
, 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
    accuseds in-court testimony to make a finding of fabrication absent evidence
    that is independent of
both
(1) the evidence contradicting the accuseds
    testimony, and (2) the fact that the accused is found to have testified falsely
    at trial:
OConnor
, 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 accuseds 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
OConnor
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 judges 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 appellants testimony?

b)

If so, did
    the trial judge also find that the appellant fabricated their testimony?

c)

If the trial
    judge found the appellants 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 appellants evidence was fabricated, a finding which was
    unsupported by independent evidence of fabrication.

(a)

The trial judge disbelieved the appellants evidence

[60]

The trial judge clearly did not believe the appellants 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 appellants 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 appellants
    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
    Crowns cross-examination of the appellant highlighted several implausible
    aspects of his account.

[63]

However, the trial judge went beyond mere disbelief of the appellants
    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
    appellants] 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
    complainants] 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
    appellants fabrications related to his cell phone and the concocted story
    about how he came to be in the hallway near the complainants apartment at the
    same time the intruder fled.

[66]

In my view, these passages show that the trial judge not only
    disbelieved the appellants 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 judges
    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
    appellants 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 appellants evidence as to his
    whereabouts at the time in question. Instead, the trial judge found the
    appellants evidence strained credulity based on several internal
    inconsistencies and logical improbabilities. She also relied on her assessment
    of the appellants demeanour as a witness to support her view that he had
    deliberately misled the court.

[73]

In accordance with
OConnor
,
these
    considerations cannot be properly characterized as evidence independent of the
    appellants testimony nor of the trial judges 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
    appellants 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 judges adverse finding of fabrication
    against the appellant.

[75]

I do not agree. The surveillance video evidence was not
    independent of the appellants 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
    appellants 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 appellants
    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 judges 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 appellants story as false, thus undermining his credibility, but that she
    then relied on her disbelief of the appellants evidence to infer that he must
    have deliberately fabricated that evidence to avoid culpability for the
    incident in the complainants apartment.

[80]

In my view, in light of the problems with the
    complainants identification evidence, this reasoning contributed to the trial
    judges 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 judges inference of
    fabrication was in error. This erroneous reasoning was integral to the appellants
    conviction, particularly given the limitations in the complainants evidence on
    identification and the interdependence acknowledged by the trial judge between the
    identity issue and the appellants evidence as to his whereabouts. This
    interdependence reinforces my view that the trial judges 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 Judges 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 appellants] alibi defence. I arrive at
    this conclusion from
the accumulated effect of problems I have with the
    credibility and plausibility of [the appellants] 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 appellants 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 appellants explanation of his
    whereabouts did not place him elsewhere  it placed him right outside the
    complainants 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 appellants 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 judges
    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 appellants credibility. In my view, it was open to the trial judge to
    reject the appellants 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 appellants account.
    Rather, she rejected his evidence based on the accumulated effect of her
    overall assessment of the appellants credibility and the implausibility of his
    story. It is clear from the trial judges 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 judges 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 judges 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 judges conclusion, at para. 227, that the appellants appearance in the
    surveillance video time stamped at 3:21 a.m. showed that he was present in the
    hallway near the complainants 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 appellants guilt.

[95]

Accordingly, I am not persuaded that the trial
    judge erred in her treatment of the surveillance video. In my view, the trial
    judges 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
    appellants phone records, they were unavailable due to the passage of time.


