Jury instructions related to witness testimony leads to order for new trial in sexual assault case

In R. v. U.K., an Ontario court had convicted the two appellants, U.K. and R.P., of one count each of sexual assault. The incident in question occurred at a party in a hotel room. The Crown’s position was that the complainant did not consent to sexual contact with either appellant and, regardless, had lacked the capacity to consent due to intoxication. Both appellants said that the sex was consensual and that while she had been drinking, the complainant “appeared to be fine and was responsive.” The appellants said the complainant was an active participant in the sex but theorized at trial that she drank to intoxication but not incapacity, had consensual sex, became sick, and once an ambulance was called and her parents were notified, she fabricated the sexual assault out of embarrassment.

Two days after the alleged assault, the police contacted the appellants and requested that they provide statements in person. In their statements, both initially said they saw the complainant consume alcohol after the sexual activity and before she got sick. Later, in their police statements and in their trial testimony, they both amended that claim and said they had mixed up the timing.

In a conference before the jury charge, Crown counsel asked the trial judge to instruct the jury that, if they found the statements about the complainant drinking after the sexual activity to be deliberately fabricated, they could view those statements as circumstantial evidence of guilt. The Crown argued that the similarity of their statements and the fact that they both backtracked on them could be independent evidence of fabrication because it indicated they had conspired to mislead the police.

Trial counsel argued there was insufficient evidence for such an instruction.

The trial judge ultimately included a jury instruction on the issue. He told the jury that the Crown had submitted that the evidence was fabricated. The judge added that the police statements were similar, both accused had been together the day after the alleged assault when they returned to the hotel to collect their property, and they went to the police station to give their statements at the same time the next day. The judge told the jury to consider whether any of the evidence was fabricated after reviewing it, to consider whether there is independent evidence to establish the evidence was fabricated, and whether there is evidence within the relevant circumstances.