



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wright, 2017 ONCA 560

DATE: 20170630

DOCKET: C61363

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Craig Wright

Appellant

Cate Martell, for the appellant

Kevin Wilson, for the respondent

Heard: December 5, 2016

On appeal from the conviction entered by Justice Ann J.
    Watson of the Ontario Court of Justice on July 27, 2015.

Simmons J.A.:

A.

introduction

[1]

Following a judge alone trial, the appellant was
    convicted of importing marijuana into Canada. He appeals from his conviction.

[2]

The appellant is a long-haul truck driver
    who had been employed for about five months at the relevant time by a recently
    opened trucking company.

[3]

On March 20, 2014, the appellant was returning
    to Canada from Florida with a load of okra. The truck and trailer he was
    driving were referred for secondary inspection as he crossed the border into
    Canada.

[4]

After offloading the trailer, Canada Border
    Services Agency (CBSA) officers found approximately 68 kilograms of marijuana
    and a gun magazine hidden in the refrigerator (reefer) unit of the trailer. No
    charges were laid against the appellant in relation to the gun magazine.

[5]

When the appellant was questioned by
    police after his arrest, he denied knowledge of the marijuana and also denied
    that he was ever involved in loading the trailer or had ever opened the reefer unit.

[6]

However, investigators found the appellants fingerprint
    on the back of the blower for the reefer unit. They also found a scrap of paper
    towel embedded either in or under the passenger seat in the cab of the truck with
    a pattern similar to the pattern on the paper towel in which the gun magazine
    was wrapped.

[7]

The appellant did not testify at trial. However,
    the Crown introduced his videotaped police statement into evidence and played
    the videotape during the trial.

[8]

Relying on the fingerprint evidence, the trial
    judge rejected the appellants denial, contained in his police statement, that
    he had ever accessed the reefer unit. However, the trial judge recognized that
    the probative value of fingerprint evidence must depend on the totality of the
    evidence. She concluded that the only rational inferences were that the
    marijuana was placed in the reefer unit during the appellants Florida trip and
    that the appellant had at least participated in placing it there.

[9]

Given that the blower unit must have been dismantled
    when the appellant deposited his fingerprint, the trial judge found that he
    could not have been simply mistaken when he told police his fingerprint would
    not be found on the reefer unit. Rather, she concluded he did not want the
    officers to know that he had accessed the unit and that the only rational
    inference, based on the totality of the evidence, was that the appellant had
    both knowledge and control, either as a principal or as a party, of the
    importation of the marijuana.

[10]

The appellant raised one issue on appeal: the guilty verdict is
    unreasonable because the fingerprint on the blower unit, standing alone, does not
    support an inference that the appellant touched the unit in connection with the
    offence and because the other evidence on which the trial judge relied to connect
    him to the offence, such as the T-27 drill bit and the paper towel, were not
    inconsistent with innocence.

[11]

During the oral hearing, the panel raised an issue concerning whether
    and how the principles in
R. v. OConnor
(2002), 62 O.R. (3d) 263
    (C.A.), apply to the trial judges treatment of the appellants statement that
    he had never opened the reefer unit, as well as the issue of the propriety of the
    panels question.

[12]

In subsequent written submissions, the appellant argued that the trial
    judge erred in finding that the appellants statement was deliberately
    concocted and by using that finding as circumstantial evidence of guilt.

[13]

For the reasons that follow, I would allow the appeal, set aside the
    appellants conviction and order a new trial.

B.

Background

(1)

The appellants trip to Florida

[14]

According to information contained in the appellants police statement,
    the appellant began working for Priorite Trucking in mid-November 2013. As far
    as he was aware, he was the companys only driver and drove its only truck.

[15]

The appellant left for Florida on Saturday, March 15, 2014 with a load
    of shampoo and cosmetics. After arriving in Orlando on Sunday evening, he
    delivered his load on Monday morning and then went to a truck stop in Fort
    Pierce, Florida. He spent some time inside the truck stop, but locked the cab
    while inside; he did not have a lock for the trailer. After sleeping overnight
    in the truck, he was dispatched to Homestead, Florida on Tuesday, March 18,
    2014 to pick up a load of okra at Quality First Produce, located at a farmers
    market.

[16]

The appellant had been to Quality First Produce before and recognized the
    people who loaded his trailer. He claimed he did not load the trailer; his only
    job was to drive the truck. However, he had to wait for a while for the truck
    to be loaded because the reefer had to cool the trailer.

(2)

Investigation by CBSA officers

[17]

The appellant arrived at the Peace Bridge in Fort Erie, Ontario close to
    8 a.m. on Thursday, March 20, 2014. He was referred for a secondary inspection
    because he was coming from near Miami, a known source location for narcotics,
    and because he arrived near the morning CBSA shift change. The CBSA officer who
    referred him to secondary testified the appellant did not appear nervous at the
    time.

[18]

The reefer unit was not accessible when the trailer was loaded with its
    cargo of 18 skids of okra. Accordingly, to conduct their inspection, CBSA
    officers arranged for the truck to be offloaded. This involved some delay. At
    around 10 a.m., a CBSA officer on a break in the inspection area observed a
    person she believed was the driver pacing back and forth in the area of the
    reefer unit of the truck and pushing buttons on the unit. She had no notes of
    these observations and was not asked to identify the appellant.

[19]

The individual who offloaded the cargo from the trailer testified it took
    25 minutes to do so with a tow motor; that it would have taken at least twice
    that long if done with a hand cart; and up to six hours if done by hand. He
    confirmed that he did not detect any odour of marijuana while inside the
    trailer.

[20]

CBSA officers opened the reefer unit by taking down the reefer tunnel
    from the roof of the trailer, unclipping and removing a plastic bumper cover,
    and using a T-27 drill bit to remove a lower panel and the reefers blower
    unit.

(3)

The appellants arrest and statements to CBSA officers

[21]

After discovering the marijuana, CBSA officers arrested the appellant,
    read him his rights and asked if he understood. He said he did not understand
    and his rights were read again. A few minutes later, while sitting on a bench
    in a holding cell, the appellant blanched and fainted. He was examined by
    paramedics, but refused further medical attention. When asked later if he
    understood what was going on, the appellant responded: Ive never been in
    trouble before.

[22]

CBSA officers arranged for the appellant to speak to duty counsel and
    then interviewed him. He told them he did not know anything about the gun
    magazine or what was in the reefer.

(4)

The appellants statement to the RCMP

[23]

The appellant spoke to duty counsel a second time after being turned
    over to the RCMP and then participated in a videotaped interview.

[24]

During the course of the interview, the appellant explained his
    employment history, identified his employer and the company dispatcher and
    described his trip to Florida. He described his role as solely that of a
    driver. Although he acknowledged sweeping out the trailer to keep it clean and
    entering the trailer on occasion to re-stack a fallen load, he asserted that he
    did not load or unload the truck or do any maintenance on the truck. He said he
    was shocked upon being told by CBSA officers that a large quantity of marijuana
    was found in the reefer unit of the truck and denied any knowledge of the drugs
    or how they got into the truck.

[25]

The appellant specifically denied that he ever used the trucks toolbox
    to fix the reefer unit. He said, I cant, I dont fix reefer  I dont fix
    those things  I never use those things. The following exchange then occurred:

RCMP officer:  Uhm,
    then I, I, just want to make sure, Im going to ask you one more time. Youve
    never ever opened that reefer, ever?

Appellant:         No
    I have no reason for going up and opening it?

RCMP officer:  Your
    fingerprints would never, ever be on that reefer then?

Appellant:         No

RCMP officer:  Correct?

Appellant:         Im
    going to say no.

(5)

Fingerprint evidence

[26]

An RCMP officer lifted a number of fingerprints from the reefer unit. He
    identified one print as matching the appellants left ring finger. The print
    was located on the rear of the blower unit, which other evidence indicated
    would have to have been removed in order to access the area where the marijuana
    was stored. The other evidence also indicated that it was not possible to
    access the rear of the blower unit without unscrewing and removing it from the
    reefer unit. The RCMP officer confirmed that he could not date the print and
    agreed that it could have been there for six months to a year.

[27]

The officer obtained several other fingerprints from inside the reefer,
    including one on plastic wrapping around one of the marijuana packages and one
    on paper wrapped around the gun magazine. None of the other fingerprints
    belonged to the appellant.

C.

The parties positions at trial

(1)

The Crown

[28]

The Crowns position at trial was that, viewed as a whole, the
    circumstantial evidence supported a finding that the appellant had knowledge
    and control of the marijuana when he arrived at the Canadian border. In his closing
    submissions,
Crown counsel at trial did not allude to
    the fact that the appellant denied accessing the reefer unit.
Rather,
    the Crown relied, in particular, on the following factors:

·

Primary
    circumstances

·

the appellant was the only driver, he slept in the truck and had
    exclusive possession and control of the trailer during the trip;

·

CBSA evidence indicated that the reefer unit was not accessible
    from the outside of the truck;

·

the offloaders evidence indicated that the reefer was not
    accessible while the truck was loaded with okra, thereby precluding the
    possibility that the marijuana was loaded surreptitiously while the appellant
    was on a brief rest stop;

·

the appellant had ample opportunity to load or participate in
    loading the marijuana both after he offloaded his cargo in Orlando but also
    during a rest/repair stop in West Virginia while en route to Florida and even
    after the okra was loaded;

·

the appellant had access to the tools necessary to open the
    reefer: a T-27 drill bit was located in the toolbox in the cab of the truck;

·

a somewhat distinctive paper towel similar to the paper towel in
    which the gun magazine was wrapped was found in the cab of the truck;

·

the appellants fingerprint was found on the back of the blower
    for the reefer unit, a location that could only be accessed by dismantling the
    blower unit; and

·

the marijuana was found in the reefer unit, which could only be
    accessed by dismantling the blower unit.

·

Secondary
    circumstances

·

a CBSA officer observed the appellant pacing and looking at the
    reefer unit while waiting for the trailer to be offloaded in the secondary
    inspection area; and

·

the appellant fainted shortly after being arrested.

[29]

In reply submissions, the Crown noted a
    defence submission that the appellants fingerprint could not be dated. In
    response, the trial Crown pointed out that the appellant denied ever having
    been in the reefer unit and also claimed that he had never touched it or done
    maintenance on it. Beyond that brief submission, Crown counsel at trial did not
    refer to the concepts of fabricated exculpatory statements or after-the-fact
    conduct supporting a finding of consciousness of guilt.

(2)

The defence

[30]

Defence counsel at trial argued that
    this is not a case in which the trier of fact could be satisfied that the only
    rational inference from the circumstantial evidence is one of guilt. Defence
    counsel pointed to the appellants statement in which he denied any knowledge
    of the marijuana and provided the name and address of the corporate owner of
    the truck as well as the name of the individual owner of the company. He
    submitted that it was equally possible that the owner or dispatcher had
    arranged to ship the marijuana without the appellants knowledge. Defence
    counsel also relied on the fact that the appellants fingerprint on the blower
    of the reefer unit could not be dated.

[31]

In response to a question by the trial
    judge about the appellant denying doing any repairs to the reefer unit, defence
    counsel disputed the accuracy of the evidence identifying the appellants
    fingerprint. He also pointed to the presence of fingerprints that were not the
    appellants, in particular, the prints on the marijuana package and the paper
    in which the gun magazine was wrapped.

[32]

Defence counsel also relied on the
    appellants denial that he participated in loading the truck; the time it took
    to offload the okra; the evidence of the offloader that the okra appeared to be
    a normal load; the offloaders evidence that there was no odour of marijuana in
    the trailer;
a CBSA officers evidence that the T-27 drill bit was at
    the bottom of the toolbox among other items; a CBSA officers evidence that the
    reefer unit could be dismantled very quickly; evidence suggesting that the
    scrap of distinctive paper towel was not in plain view; the failure of the
    police to follow-up with the owner of the truck or the food terminal in Florida
    or to conduct any extensive investigation of the other fingerprints that were
    found; and the appellants willingness, stated in response to a question during
    his police interview, to take a polygraph test
.

D.

The trial judges reasons

[33]

The trial judge gave lengthy reasons in
    which she reviewed the evidence and the positions of the parties and instructed
    herself on
R. v. W.(D.)
, [1991] 1
    S.C.R. 742, circumstantial evidence and the treatment of fingerprint evidence.

[34]

The core of her succinct analysis is
    set out below:

The [appellant] denies knowledge of
    the marijuana in the reefer unit.
I reject the
    statements made by the [appellant] to the police  denying that he has ever had
    access to the interior of the reefer unit. The evidence  was that the
    [appellants] fingerprint was located behind the blower unit.



The evidence  that the fingerprint could
    not be dated must be viewed on the totality of the evidence
. The
    [appellant] on his own admission was the sole operator of the tractor-trailer
    combination. The [appellant] denied ever having performed maintenance on the
    reefer unit, and denied that his prints would be found on the reefer unit. The
    [appellant] told police that his only involvement with the trailer at all would
    be to sweep out the trailer or to restack a load that had fallen over.
The only reasonable inference on the totality of the evidence
    called is that the reefer unit had to be dismantled in order for the marijuana
    to be placed where it was located in the reefer unit. The only reasonable
    inference is that the marijuana was placed in the reefer unit at some point
    during the [appellants] trip to Florida
from which he was returning on
    March 20, 2014 into Canada. Although the [appellant] may have left his trailer
    unlocked for short periods of time at rest stops or otherwise, the [appellant]
    was the sole driver and slept in his cab which contained a toolbox with a T-27
    drill bit and a paper towel similar to the paper towel that was wrapped around
    a gun magazine found amongst the packages of marijuana. The only reasonable
    inference on the totality of the evidence is that the [appellant] did access
    the dismantled unit in order to place or assist in the placement of the
    marijuana into the reefer unit and in so doing left his fingerprint on the back
    of the blower unit.
I find that it would be unreasonable
    on the evidence called to find that the [appellant] could have been mistaken in
    his recollection when he advised the police that his fingerprint could not be
    found on the reefer unit given the placement of the fingerprint behind the
    blower unit and given that the unit had to be dismantled when the print was made.
    The only rational inference is that the [appellant] did not want the officers
    to know that he had accessed the unit. This is a strong circumstantial case
for the Crown. I reject the statements of the [appellant] to the police that he
    had no knowledge of the marijuana concealed in the reefer, nor am I left in a
    state of reasonable doubt by the [appellants] statements to this regard. The
    only rational inference based upon the totality of the evidence is that the
    [appellant] had both knowledge and control either as a principal or a party as
    to the importation of the marijuana. [Emphasis added.]

E.

Discussion

(1)

The
OConnor
issue

[35]

As noted above, in response to a question from
    the panel, the appellant argued, in written submissions,
that the trial
    judge erred in finding that the appellants statement was deliberately
    concocted and by using that finding as circumstantial evidence of guilt.

[36]

The appellant makes three arguments on this point: i) his statement was
    never admitted for the purpose of proving that he deliberately lied to the
    police; ii) there was no independent evidence of fabrication capable of
    supporting that conclusion; and iii) in any event, the trial judge erred by
    drawing an inference of consciousness of guilt without determining whether the
    only rational inference was that the appellant lied to the police because he
    was conscious of having committed the offence.

[37]

I agree that neither the appeal record
    nor the trial judges reasons disclose any independent evidence of fabrication
    capable of supporting a finding that the appellant concocted his statement to
    conceal his participation in the offence.

[38]

It is well established that our law
    distinguishes between an exculpatory statement which is disbelieved and one
    that is found to have been fabricated or concocted to avoid culpability. A
    statement which is merely disbelieved is not evidence that strengthens the
    Crowns case. However, if the Crown can establish, through extrinsic or
    independent evidence, that an exculpatory statement was fabricated or concocted
    to conceal involvement in the offence, the statement evidence can be capable of
    supporting an inference of guilt:
OConnor
;
R. v. B.(P.)
,
2015 ONCA 738, 127 O.R. (3d) 721.

[39]

The distinction between mere disbelief
    and a finding of fabrication is based on the fundamental principle that the
    onus of proof remains on the Crown throughout a criminal trial and helps ensure
    that the trier of fact properly applies the burden of proof where statements
    from an accused are tendered, or the accused testifies. As this court noted in
OConnor
, at para. 19:

The distinction reduces the risk that
    the trier of fact may blur the need for the Crown to prove the offence charged
    beyond a reasonable doubt with the failure of the accused to provide a credible
    defence. The distinction also recognizes the danger that a trier of fact may
    attach undue weight to the rejection of an accuseds explanation and may move too
    readily from mere disbelief to a finding of guilt.

[40]

This court recognized in
OConnor
, and subsequently in
B.(P.)
, that in many, if not most, cases a trier of fact may
    logically infer fabrication from disbelief. But the policy that underpins the
    distinction between disbelief and fabrication sets its face against using
    disbelief to infer fabrication. Instead, to establish fabrication, the Crown
    must adduce evidence independent of the evidence that contradicts or discredits
    the exculpatory statement:
OConnor
,
at paras. 21-22;
B.(P.)
,
at para. 171.
    See also
R. v. Coutts
(1998), 40 O.R.
    (3d) 198 (C.A.), leave to appeal refd, [1998] S.C.C.A. No. 450.

[41]

The requirement
    for independent evidence of fabrication was recently confirmed by the Supreme
    Court in
R. v. Laliberté
,
2016 SCC 17, [2016] 1 S.C.R. 270, a case addressing a
    fabricated alibi. At para. 3, the court stated that juries should be instructed
    that only a
fabricated
alibi can support an inference of consciousness of guilt. Moreover,
    there must be
other evidence independent of the finding that the
    alibi is false on the basis of which a reasonable jury could conclude that the
    alibi was deliberately fabricated and that the accused was involved in that
    attempt to mislead the jury:
Laliberté
, at para. 4.

[42]

In
R. v. Oland
, 2016 NBCA 58 (reasons in full reported at 2016
    CanLII 101484, 2017 CarswellNB 11, [2016] N.B.J. No. 288), the New Brunswick
    Court of Appeal ordered a new trial because of erroneous jury instructions
    concerning the use of a false post-offence statement by the accused to the
    police. In doing so, the court elaborated on the concept of concoction and
    confirmed that evidence independent of the evidence proving the falsity of the
    statement is required to prove concoction.

[43]

At the trial in
Oland
, in instructing the jury about the use they
    could make of the false statement, the trial judge drew a distinction between
    an intentional lie [and] an honest mistake. However, the trial judge failed
    to explain the requirement that, to use a lie as evidence of consciousness of
    guilt, the jury must make a finding of concoction based on evidence independent
    of the evidence proving the statement false.

[44]

At para. 73 of
Oland
, the court noted that concoction connotes
    contrivance. The court emphasized that even if the jury concluded that the
    appellant lied in a statement he made to the police (as opposed to making an
    honest mistake), the jury could use that conclusion to support an inference of
    consciousness of guilt if, and only if, [the lie] was concocted
by the appellant
for
    the purpose of concealing his participation in the
[offence]
.  Moreover, a finding
    of concoction could not be made by the jury simply because the appellant lied;
    it could be made only if [concoction] was established by evidence independent
    of the evidence proving he lied.  And it was incumbent on the trial judge to
    review for the jury the independent evidence capable of demonstrating
    concoction:
Oland
, at paras. 73 and 79. See also David Watt,
Watts
    Manual of Criminal Jury Instructions,
2nd ed. (Toronto: Carswell, 2015),
    at pp. 343-44.

[45]

At paras. 71 and 72 of its reasons, the court in
Oland
explained that the rules developed to deal with out-of-court lies by an
    accused in the aftermath of and in relation to the offence charged are not
    special. [Not] all lies are rational or thought through. The rules have
    been developed because of the risk of prejudicial impact on trial fairness
    associated with [this] kind of evidence and to ensure verdicts that are
    consistent with the presumption of innocence and the proper application of the
    burden of proof.

[46]

In this case, in my view, the trial judge made a finding that the
    appellants statement that he had never accessed or touched the reefer unit was
    both a lie (as opposed to an honest mistake) and concocted to mislead the
    police and conceal his involvement in the offence. She did so in the analysis
    section of her reasons where she was considering what, if any, significance
    could be attributed to the fingerprint evidence. But she made the finding of
    concoction based on the evidence of the location of the appellants fingerprint
    on the back of the blower for the reefer unit, thus relying on the very
    evidence that proved the appellants statement to be false. She said:

I find that it would be unreasonable
    on the evidence called to find that the [appellant] could have been mistaken in
    his recollection when he advised the police that his fingerprint could not be
    found on the reefer unit given the placement of the fingerprint behind the
    blower unit and given that the unit had to be dismantled when the print was
    made. The only rational inference is that the appellant did not want the
    officers to know that he had accessed the unit.

[47]

Although the trial judge self-instructed on a number of legal issues,
    she did not refer in her reasons
to the legal
    principles governing fabricated exculpatory statements or after-the-fact
    conduct supporting a finding of consciousness of guilt
. In particular,
    she did not refer to the requirement for independent evidence to support a
    finding of concoction. Nor did she identify any such evidence in her reasons.
    In my view, she erred in law in failing to do so.

[48]

Based on my review of the appeal record,
[1]
I can find no evidence independent of the evidence proving the falsity of the
    appellants statement that would support a finding of concoction. In the case
    of an exculpatory out-of-court statement (in contrast to the situation with
    in-court exculpatory testimony), independent evidence of concoction may emerge
    from the evidence of the circumstances in which the statement was made. However,
    I see no such evidence in this case. Such evidence will, of necessity, be case
    and fact specific. However, typical examples include pre-arrest exculpatory
    statements that are specific and detailed (for example, the statement in
OConnor
)
    or post-arrest statements that are inherently implausible (for example, the
    statement in
R. v. Stevenson
, 2014 ONCA 842, 317 C.C.C.
    (3d) 385, leave to appeal refd, [2015] S.C.C.A. No. 37
)
.

[49]

At para. 31 of
OConnor
, this court described how the
    circumstances of the statement in that case, which was made before the
    appellant was even a suspect, could amount to independent evidence of fabrication:

If a jury were to disbelieve the appellants statements, they
    might fairly ask why would the appellant tell such detailed and specific lies
    to the investigators. Why not tell the truth? And how was it that the appellant
    was so well prepared with a detailed and precise statement about his
    whereabouts when questioned by the police?  [I]t would be open to the jury to
    use the evidence of the circumstances surrounding the making of those
    statements and the nature of the statements themselves to conclude that that
    appellant fabricated the statements to avoid suspicion.

[50]

Here, significantly, the appellants statement was made post-arrest and
    was not inherently implausible.
[2]
Moreover, his denial that he accessed or touched the reefer was essentially a
    response to questions posed by the interviewing police officer and cannot
    fairly be described as specific and detailed. I see nothing arising from the
    circumstances of his statement that could constitute independent evidence of
    fabrication. And as I have said, the trial judge failed to identify any such
    evidence.

(2)

The unreasonable verdict issue

[51]

The appellant argued that the guilty verdict is unreasonable because the
    fingerprint on the blower unit, standing alone, does not support an inference
    that the appellant touched the unit in connection with the offence and because
    the other evidence on which the trial judge relied to connect him to the
    offence were not inconsistent with innocence.

[52]

I would not accept this submission. Although I have found that the trial
    judge erred in making a finding of concoction, which she used to link the
    appellant and his fingerprint to the offence, I am satisfied that there was
    other evidence capable of supporting a finding that the appellant knew about
    the marijuana in the truck.

[53]

In my view, this is not a case in which the fingerprint evidence lacks
    any probative value. Although it does not link the appellant to the offence, it
    does provide circumstantial evidence of the appellant having accessed the
    reefer at some point. When considered in combination with the other evidence
    relied on by the Crown, such as the somewhat distinctive paper towel found in
    both the cab and wrapped around the gun magazine, the T-27 drill bit, the
    evidence of the appellants control over the truck and trailer during his trip
    to and from Florida and the other evidence referred to at para. 28 of these
    reasons, in my view, there was sufficient evidence to permit a trier of fact to
    conclude that guilt was the only rational inference available on the record.

[54]

That said, I do not accept the Crowns submission that its case was
    overwhelming. As noted at paras. 30-32 of these reasons, defence counsel at
    trial posited alternative theories to the appellants guilt. In my view, this
    is a case in which it is for a trier of fact to consider the evidence and draw
    the line between reasonable doubt and speculation based on the whole of the
    record:
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000.

(3)

The propriety of the panels question issue

[55]

In its post-hearing written submissions, the Crown argued that the
    panels question about
OConnor

was a new
    issue within the meaning of
R. v. Mian
, 2014 SCC 54, [2014] S.C.R. 689, and that it did not meet
    the threshold test established in that case for the panel to exercise its
    discretion to consider  the new issue.

[56]

I would not accept these submissions. At para. 18 of its factum filed
    for the purposes of the appeal hearing the Crown asserted, in response to the
    appellants unreasonable verdict argument, that the trial judge was entitled to
    rely on the appellants false statement as supporting of a finding of guilt.
    The panels question about the application of the
OConnor
principles
    related directly to this assertion and did not raise a new issue within the
    meaning of
Mian
.

F.

Disposition

[57]

Based on the foregoing reasons, I would
    allow the appeal, set aside the appellants conviction and order a new trial.

Released:

KMVR                                               Janet
    Simmons J.A.

JUN 30 2017                                     I
    agree K. van Rensburg J.A.

I
    agree B.W. Miller J.A.





[1]

The appeal record includes a transcript of the appellants
    videotaped statement that was filed as a lettered exhibit at trial. Neither
    party filed the videotaped statement marked as an exhibit at trial.



[2]
In
R. v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d) 5, leave to appeal refd,
    [2010] S.C.C.A. No. 499, at para. 170, this court said that the circumstances
    in which an out-of-court statement is made will not permit an inference of
    fabrication where an accused makes a false statement to police
after
being arrested and charged with a crime. However, in
Stevenson
this
    court held the circumstances surrounding a post-arrest lie could support an
    inference of guilt. In
Stevenson
, the post-arrest lie was inherently
    implausible. The accused was arrested and interviewed mere hours after the
    offence occurred and yet claimed he could not recall his whereabouts at the
    time of the offence.


