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Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
On September 24, 2026, the Court of Appeal for Ontario released its decision in R. v. E.C., 2026 ONCA 669, allowing an appeal from convictions for sexual assault and assault and ordering a new trial. The decision, written by Favreau J.A. for a unanimous panel (Roberts, Thorburn and Favreau JJ.A.), is brief. It carries a clear lesson about the difference in instructions on assessing motives to lie regarding testimony of an accused person versus the testimony of a complainant or other witness.
01 • BACKGROUND
The appellant and the complainant, former spouses, came to Canada from Nigeria in 2004. The complainant alleged that the appellant committed a sexual assault in 2004 and 2005, and that he physically assaulted her on several occasions in 2021. She reported the allegations to police in October 2021. At trial before a judge and jury in the Superior Court of Justice, the complainant was the only Crown witness. The appellant testified, denied the allegations, and called several witnesses, including two of the couple’s sons.
The defence theory was that the complainant had fabricated the allegations to gain an advantage in an acrimonious separation, in particular possession of the matrimonial home and custody of the children. The jury convicted the appellant of the 2004 sexual assault and two counts of assault arising from the 2021 incidents.
On appeal, the appellant challenged three aspects of the jury charge: a fabrication instruction relating to the complainant’s evidence, the good character instruction, and the instruction on the rule in Browne v. Dunn — related to the requirement to give witnesses a chance to respond to alternate theories or evidence. The Court accepted only the first ground, and that ground was sufficient to require a new trial.
02 • THE PURPOSE OF THE FABRICATION RULE
The Court first explained why special rules govern alleged fabrication. When the Crown asks a jury to treat an accused’s exculpatory statement as deliberately concocted, and to use that concoction as evidence of guilt, there is a risk that disbelief of the accused will slide into a finding of guilt based solely on rejection of his evidence. Relying on R. v. Coutts and R. v. U.K., the Court reiterated that this reasoning would erode the Crown’s obligation to prove guilt beyond a reasonable doubt.
For this reason, the law requires independent evidence of deliberate fabrication — meaning evidence apart from whatever contradicts or discredits the accused’s account — before a jury may treat an accused’s statement as fabricated. The Court summarised what a proper instruction should convey. The jury, or trier of fact, should understand that mere disbelief of an accused’s exculpatory statements has no evidentiary value, that a finding of fabrication requires independent evidence, what may qualify as such evidence, and that alternative explanations for a false statement must be considered before concluding that it was intentionally fabricated to avoid liability.
The rule is therefore protective: it ensures that the burden of proof remains on the Crown.
03 • THE ERROR: APPLYING THE RULE TO THE COMPLAINANT
At trial, on his own initiative and without submissions from counsel, the trial judge gave a fabrication instruction about the complainant’s evidence. He told the jury that there was independent evidence (a child’s birth certificate) on which they could find that the complainant had fabricated the events, and then adopted the model language that disbelief does not equal fabrication and that disbelieved evidence should simply be set aside.
The Court described this as a fundamental error. No requirement exists in law that a complainant’s fabrication be established by independent evidence before the jury may act on its disbelief of her. When the protective rule was transposed onto the complainant, it inverted the rule’s function. The instruction implied that the jury’s disbelief of the complainant carried no weight unless independent evidence showed she had deliberately fabricated her account. As the Court observed, that proposition is incompatible with the Crown’s burden. If the jury disbelieved the complainant, with or without independent evidence of fabrication, that disbelief should have led to a reasonable doubt and an acquittal.
04 • THE CROWN’S ARGUMENTS
The Crown advanced three arguments to save the convictions. It said the error was innocuous and may even have benefitted the appellant. It said the instruction was preceded by a proper W.(D.) instruction and that the charge, as a whole, correctly described the burden of proof. And it was pointed out that defence counsel had not objected.
The Court of Appeal rejected each argument. The misdirection was neither harmless nor favourable to the defence because it could have led jurors to believe that they could not acquit, even if they disbelieved the complainant, unless there was independent proof of fabrication. On the absence of an objection, the Court applied R. v. Abdullahi, 2023 SCC 19: counsel’s silence is relevant but not determinative, and the trial judge bears ultimate responsibility for instructing the jury correctly. The Court also noted that the defence gained no tactical advantage by remaining silent.
Because the complainant’s credibility was the central issue at trial, the Court could not conclude that the verdict would necessarily have been the same without the error.
05 • THE REMAINING GROUNDS
The Court dismissed the two other grounds. On the good character instruction, the trial judge had included the appellant’s denials of the offences among the examples of good character evidence. The Court found that, even if this was technically inaccurate, it was at worst neutral and at best helpful to the appellant, since it reminded the jury of his denials while telling them that good character could enhance his credibility and could alone raise a reasonable doubt.
On the Browne v. Dunn instruction, the Court held that trial judges have broad discretion over the rule, citing R. v. Quansah, and that it is permissible to explain the rule to the jury and leave them to assess the effect of any breach on the evidence, citing R. v. Y.Y., 2025 ONCA 766, and R. v. Paris. Identifying one specific example while leaving room for others was also not an error. The Court noted that the instruction followed the standard model in Watt’s Manual of Criminal Jury Instructions.
06 • SIGNIFICANCE
R. v. E.C. is a reminder that a rule designed to prevent the burden of proof from shifting onto an accused can, when redirected toward a complainant, effectively impose an improper evidentiary hurdle on the defence. What began as a safeguard became, in the Court’s analysis, a potential obstacle to acquittal.
The decision also underscores the value of a thorough pre-charge conference in jury trials. The problematic instruction appears to have been added without submissions from counsel, and neither party objected to it. Although Abdullahi confirms that counsel’s silence will not insulate a legally erroneous charge from appellate review, careful scrutiny of draft instructions by both the Crown and the defence remains the most reliable way to avoid a retrial.
Finally, the case reaffirms a basic principle: in a prosecution that turns on the credibility of a single complainant, any instruction that could affect how judges or jurors treat their disbelief of that witness goes to the heart of the burden of proof, and appellate courts will scrutinise it accordingly.
READ THE FULL DECISION HERE: R. v. E.C., 2026 ONCA 669
This post is a summary and commentary on a public appellate decision and is not legal advice. Anyone seeking advice about a specific matter should consult a criminal lawyer. Neuberger & Partners LLP, Criminal Lawyers Toronto.
