Case information

Criminal law — Evidence — Exculpatory statements — Fabrication — Improper submissions — Unreasonable verdict — Whether the Crown is required to adduce independent evidence demonstrating the impossibility or implausibility of a facially exculpatory statement before a jury may consider whether the statement was actually fabricated — Whether the Court of Appeal erred in excluding evidence as being prejudicial — Whether the Court of Appeal erred in over-emphasizing the imperfections in Crown counsel’s closing statement — Whether a jury verdict is entitled to deference when the Court of Appeal concludes they received erroneous instructions, inadmissible evidence, and improper submissions.

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The respondent was convicted by a jury of first degree murder in the death of his wife. The couple had been on a camping trip when his wife fell off a boat and drowned. The respondent was the only other person on the boat, and he provided a detailed witness statement to police. The Crown’s case was entirely circumstantial, and the issue at trial was whether the drowning was accidental, or whether it was the result of an unlawful act by the respondent. The trial judge instructed the jury that if they found the respondent’s statement to police to be false, it was open to them to find that it had been fabricated with the intention of avoiding suspicion. On appeal, the respondent argued that the jury should not have been instructed on fabrication. He also alleged that the trial judge had erroneously admitted evidence, and that Crown counsel had relied on unproven facts and gave evidence in his closing submissions to the jury. The Court of Appeal allowed the respondent’s conviction appeal. It held that the trial judge should not have instructed the jury on fabrication, and that the trial judge erred in admitting unreliable and speculative evidence. The Court of Appeal also found that Crown counsel’s closing submissions were improper. However, it did not find the jury’s verdict to be unreasonable, and ordered a new trial.