Court of Appeal for Ontario
Date: 2025-03-17
Docket: COA-23-CR-0368
Coram: Nordheimer, Sossin and Copeland JJ.A.
Between:
His Majesty the King (Respondent)
and
P.M. (Appellant)
Counsel:
Mark Halfyard and Chloé Boubalos, for the appellant
Raoof Zamanifar, for the respondent
Heard: January 15, 2025
On appeal from the convictions entered on November 3, 2022 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury.
Introduction
1The appellant appeals from his convictions for one count of sexual interference and one count of invitation to sexual touching involving his niece, as well as one count of invitation to sexual touching involving his daughter.
2At the conclusion of the hearing, we dismissed the appeal with reasons to follow. I now provide those reasons.
Factual Background
3A brief overview is sufficient as context for the issues raised on appeal. I provide additional detail as necessary in the analysis of each ground of appeal.
4I refer to the appellant’s niece as the complainant because the focus of the trial was on her allegations.
5The complainant was 10 years old when the allegations were reported to police. In September 2017, at a doctor’s appointment, the complainant’s doctor erroneously told the complainant’s mother that the complainant had thrush, which could be associated with a sexually transmitted infection.[2] After leaving the doctor’s appointment, the complainant’s mother questioned the complainant about whether someone had touched her sexually. The complainant initially denied this, but on the drive home told her mother that the appellant had touched her sexually. The next day, the complainant’s parents reported the allegations to police. Within the next few weeks, the complainant provided two videotaped statements to police.
6At the time of the trial, the complainant was 15 years old. The substance of her trial evidence[3] was that in the approximately two years prior to the disclosure, when she was between the ages of 8 and 10 years, on multiple occasions the appellant put his hands down her pants and touched her anus and genitals, including digital penetration. She testified that at times the appellant would pull down his pants and play with his penis. She also testified that the appellant would ask her to touch his penis, and on one occasion she did touch his penis over clothing at his invitation. She testified that these events occurred during family gatherings, including in locations such as washrooms and basements.
7The Crown relied on evidence of text messages exchanged between the appellant and the complainant as confirmatory of her evidence. In her evidence, the complainant described an occasion when she exchanged text messages with the appellant about meeting up in a washroom. She said this exchange of text messages led to sexual touching. She also said the appellant would instruct her to delete text messages about meeting up so they would not get caught.
8The Crown relied, in particular, on two sets of text messages (on different dates). In the first set of texts, the complainant texted the appellant and proposed meeting up in two washrooms during a family gathering. The appellant replied, “Can’t”, “To[o] close to everyone”, “Everyone is here”, and “We are going to get caught”.
9In the second set of texts, the complainant texted the appellant, “When your [sic] finished text me and I will come downstairs”. The appellant replied: “Ok now delete.” Minutes later, he texted her, “Done”.
10These and other text messages retrieved from two cell phones used by the complainant are the subject of the s. 8 Charter issue raised below and on appeal. The cell phones were provided to the police with the consent of the complainant’s mother a few weeks after the allegations were reported.
11The complainant’s mother testified about the initial disclosure by the complainant after the doctor’s appointment. She testified about the nature of the complainant’s relationship with the appellant and that she had not witnessed anything untoward. She also testified about the electronic devices the complainant had access to.
12The count alleging invitation to sexual touching in relation to the appellant’s daughter was based on the complainant’s evidence. The appellant’s daughter was approximately six years younger than the complainant. The complainant testified that she witnessed the appellant’s daughter, who was approximately two to three years old at the time, touch his bare penis at his request. The appellant told the complainant, “It’s not that bad” and “That’s not so hard.”
13The appellant testified and denied the allegations. He also denied that the text messages described above related to sexual activity and provided alternate explanations for them.
14The central issue for the jury was whether the sexual touching happened, which turned on their assessment of the credibility and reliability of the evidence of the complainant and the appellant, in the context of the balance of the trial evidence – the texts and the complainant’s mother’s evidence.
Analysis
15The appellant raised three grounds of appeal:[4]
- The pre-trial application judge erred in finding that the appellant had no reasonable expectation of privacy in text messages he exchanged with the complainant, which were extracted by police from the complainant’s phones with her mother’s consent;
- The trial judge erred in ruling that a sexual text message sent to the complainant by an unknown sender did not meet the stage one test under ss. 276 and 278.92 of the Criminal Code; and
- The trial judge erred in his instructions to the jury on the use of the absence of evidence of a motive to fabricate in assessing the complainant’s credibility.
(1) The application judge did not err in finding that the appellant had no reasonable expectation of privacy in his text messages with the complainant provided to police by her mother with consent
16The appellant argued that the pre-trial application judge[5] erred in finding that the appellant had no reasonable expectation of privacy in the text messages exchanged with the complainant that were provided to police from the complainant’s phones, with the consent of her mother. He argued that the receipt of the phones by police and subsequent data extraction without a warrant infringed his right to be free from unreasonable search and seizure, protected by s. 8 of the Charter. He argued that the text messages should be excluded from evidence, pursuant to s. 24(2) of the Charter.
17The background to this issue is not complex. After the complainant disclosed the sexual abuse, the complainant’s mother discovered constant texting between the appellant and the complainant on the two cell phones used by the complainant.[6] In the context of the sexual allegations made by the complainant, the mother viewed these texts as evidence relevant to the police investigation. The complainant’s mother consensually provided the two cell phones to the police shortly after the allegations were reported. The application judge found that the complainant’s mother provided her consent “with the full intent and full knowledge that the police would forensically examine the phones for evidence relevant to these allegations.”
18Acting on the mother’s consent, the police extracted the texts from the phones. They did not obtain a search warrant either to receive the phones from the complainant’s mother or to perform the data extraction. The extraction yielded 2,027 text messages between the appellant and the complainant, including the ones the Crown sought to rely on at trial as confirmatory of the complainant’s evidence.
19The appellant sought exclusion of the texts from the complainant’s cell phones in a pre-trial application. He argued that the search of the phones (the data extraction) without a warrant infringed his s. 8 Charter rights. The arguments were substantially based on the decision of R. v. Marakah, 2017 SCC 59, which was released after the police investigation in this case.
20The application judge ruled that the appellant did not have a reasonable expectation of privacy in the text messages exchanged with the complainant on the complainant’s phones, and dismissed the Charter application.
21The application judge outlined the factors identified by the Supreme Court in Marakah and other Supreme Court authorities that guide a judge’s assessment of whether a reasonable expectation of privacy exists, considering the totality of the circumstances. The appellant does not take issue with the application judge’s summary of the applicable law.
22The application judge noted, near the start of his analysis, the following comment of McLachlin C.J., for the majority, at para. 5 of Marakah:
The conclusion that a text message conversation can, in some circumstances, attract a reasonable expectation of privacy does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy (see Moldaver J.’s reasons, at paras. 100 and 167-68); whether a reasonable expectation of privacy in such a conversation is present in any particular case must be assessed on those facts by the trial judge. [Emphasis in original.]
23The application judge noted that the facts in Marakah involved two adult accomplices texting about illegal transactions in guns. He observed that the facts in this case were “quite different”, involving, “arguably incriminating text conversations between a mature adult male to a very young, vulnerable child”, and this may lead to a different result.
24Applying the totality of the circumstances analysis, the application judge found that the appellant did not have an objectively reasonable expectation of privacy in the text messages on the complainant’s phone. There were two branches to his reasoning.
25First, he found that given the totality of the circumstances, it would have been obvious to the appellant that the complainant’s cell phones were provided by her parents and that they would be able to exercise control over the cell phones and their contents. The complainant was 8-10 years old during the time of the alleged sexual abuse and the text exchanges. The appellant was an adult, approximately 30 years older than the complainant. It would have been obvious that she could not contract for cell phones herself. The application judge found that the record supported the appellant’s awareness that the complainant’s parents could access the content of her phones. The application judge noted that portions of the complainant’s police interview filed as evidence on the application indicated that the appellant would tell the complainant to delete their text exchanges. The text messages contained texts from the appellant asking the complainant to delete texts. The application judge also weighed the societal interest in protecting vulnerable children from exploitation carried out in part using electronic communications.
26Second, he found that the material before him on the application provided a basis to infer that the appellant used the text messages with the complainant to “facilitate” the alleged sexual abuse. He found that as texts used to facilitate crimes against a vulnerable child victim, the messages did not give rise to a reasonable expectation of privacy.
27On appeal, the appellant maintained that Marakah supports the proposition that a sender retains a reasonable expectation of privacy in texts sent to a recipient complainant. He argued that the assessment of a reasonable expectation of privacy in text messages on the recipient’s phone must be content neutral. The appellant argued that the fact that he, as the sender, did not have total control over the messages once they were received by the complainant did not remove his reasonable expectation of privacy, based both on Marakah and the scenario of the shared computer from R. v. Reeves, 2018 SCC 56. He argued that the application judge erred by not employing a content neutral approach and instead considering both the context of allegations of sexual abuse against a child and the content of the texts.
28I pause to note that no issue was raised regarding the consent being given by the complainant’s mother, given the complainant’s age. That is, the appellant accepted that the mother’s consent was functionally equivalent to consent by the complainant.
(i) The application judge did not err in finding that the appellant had no reasonable expectation of privacy in the text messages
29The application judge did not err in concluding that the appellant had no objectively reasonable expectation of privacy in the text messages exchanged with the complainant, on the complainant’s phones, provided to police with her mother’s consent.
30As noted above, relying on Marakah, the application judge began his analysis by correctly setting out the factors that guide a judge’s assessment of whether a reasonable expectation of privacy exists, considering the totality of the circumstances. The Supreme Court recently reaffirmed these principles in R. v. Campbell, 2024 SCC 42, at paras. 38-39, and 53.
31I find no error in the application judge’s conclusion that the appellant did not have an objectively reasonable expectation of privacy in the text messages based on the facts as found by the application judge.
32The application judge found that the phones were provided to the complainant by her parents. He found that, given the complainant’s age, it would have been obvious to a reasonable person that she could not contract for cell phones herself and the phones would have been provided to her by her parents. The application judge found that the fact that it was reasonable to assume that the complainant’s parents provided the phones, coupled with her age, made it reasonable to conclude that her parents would exercise control over the complainant’s phones, including reviewing the contents. Indeed, the application judge found that this would have been obvious to the appellant. The application judge further found that the text messages entered into evidence showing that the appellant told the complainant to delete texts and the complainant confirmed doing so, as well as the complainant’s police interview, in which she said that the appellant made her delete text messages, supported the finding that it was obvious to the appellant that her parents would be able to exercise control over the phones, including reviewing their contents. The application judge also found that there was no obligation of confidentiality between either the complainant or her parents and the appellant. Considering all of these factors together, the application judge concluded that the appellant did not have an objectively reasonable expectation of privacy in the text messages on the complainant’s phones.
33In light of these factual findings, I see no error in the application judge’s conclusion that the appellant did not have an objectively reasonable expectation of privacy in the text communications on the complainant’s phones, provided to police with her mother’s consent.
34The application judge’s finding that the appellant did not have a reasonable expectation of privacy in the text messages is also consistent with the result reached by this court in R. v. Knelsen, 2024 ONCA 501, leave to appeal to S.C.C. refused, 41445 (March 13, 2025). Knelsen was not available to the application judge because it was decided approximately five years after his ruling.
35In Knelsen, this court held that in considering a claim by an accused of a reasonable expectation of privacy in texts on the cell phone of a child complainant, it is appropriate to weigh “the competing societal value of the protection of vulnerable children from exploitation through the use of electronic media”: at para. 45.
36This court found that the adult appellant in Knelsen did not have a reasonable expectation of privacy in the text communications on the child complainant’s phone. The court reached this conclusion on two separate bases.
37First, this court held that the accused had no reasonable expectation of privacy in the text messages on the complainant’s phone because at the time the police received the phone two important things were known: (i) the nature of the relationship between the complainant and the accused, and; (ii) the circumstances surrounding that relationship, in particular, that the accused had been communicating with the complainant, who he knew was a child, for purposes of committing sexual offences. Any subjective expectation of privacy the accused may have had was not objectively reasonable given the totality of the circumstances and the societal interest in protecting vulnerable children. In reaching this conclusion, this court also found that the fact that the complainant consented to share the texts with police was relevant because “[i]t should come as no surprise to someone communicating for a sexual purpose with a child they had met only once, that such messages could readily be shared, including with the police”: at paras. 57-60.
38Second, and in the alternative, the court held that the accused did not have a reasonable expectation of privacy in the text messages on the complainant’s phone because the texts were sent to the complainant “to further the commission of the offences of sexual assault and sexual interference”: at paras. 62-65.
39Although the complainant and the accused in Knelsen were “practically strangers who had met only once” (at para. 58), I do not see that as a basis to distinguish this case from Knelsen on the first branch of the Knelsen analysis. As in Knelsen, when the police received the cell phones and conducted the data extraction, they knew the child complainant alleged the appellant had used text messages to facilitate sexual abuse of her. Given her age, an objective observer would anticipate that her parents would have access to and ultimate control over her phones. As in Knelsen, the fact that the phones were provided to police with consent also supports the conclusion that the appellant did not have a reasonable expectation of privacy in the texts. Any subjective expectation of privacy was not objectively reasonable in the circumstances, in light of the societal interest in protecting children from sexual offences facilitated by electronic communications.
40For these reasons, I would not find error in the application judge’s s. 8 analysis.
(ii) Even if there had been a s. 8 Charter breach, the evidence should not be excluded under s. 24(2)
41Because the application judge did not find a breach of the appellant’s s. 8 Charter rights, he was not required to consider the application of s. 24(2) of the Charter, and he did not do so in the alternative.
42I address the s. 24(2) issue because this is a case where, even if the appellant had succeeded in establishing a breach of his s. 8 Charter rights from the police conducting the data extraction without a warrant, the outcome of the appeal would not change. In the circumstances of this appeal, it would not be appropriate to exclude the evidence under s. 24(2) of the Charter.
43The first Grant[7] factor – the seriousness of the police conduct – does not favour exclusion. As the application judge noted in his reasons, the prevailing law in Ontario at the time of the police investigation in this case was this court’s decision in R. v. Marakah, 2016 ONCA 542. That decision held that once a text message was sent and received by the recipient, the sender no longer had a reasonable expectation of privacy in the text because the recipient could disclose the text as they wanted. The Supreme Court reversed this court in Marakah, by decision released on December 8, 2017. The police conducted the data extraction from the complainant’s phones on October 24, 2017, approximately six weeks before the Supreme Court decision in Marakah.
44Thus, at the time the police received the complainant’s cell phones with her mother’s consent and when they performed the data extraction, they acted in conformity with the law as stated by this court, holding that the appellant did not have a reasonable expectation of privacy in the texts on the complainant’s phone. Their understanding that they could proceed with the complainant’s mother’s consent was clearly done in good faith. Indeed, consistent with their understanding of the prevailing law at that time in Ontario, the police obtained a search warrant to perform a data extraction on the appellant’s phone, which had been seized incident to his arrest.
45The second Grant factor – the impact on the appellant’s Charter-protected interests – does not weigh strongly in favour of exclusion. Even if the appellant had some residual expectation of privacy in the texts on the complainant’s phone, it was a reduced expectation of privacy: Reeves, at paras. 36, 47, 66.
46Further, there can be no doubt that had the police applied for a warrant to seize the text messages from the complainant’s devices, it would have been granted. The complainant’s statements to the police amply supported reasonable and probable grounds to believe an offence had been committed and that evidence would be found on the phone: R. v. Lambert, 2023 ONCA 689, at para. 105; R. v. Sureskumar, 2023 ONCA 705, at paras. 25-29. As noted above, in light of this court’s decision in Marakah, the police reasonably believed that, having the consent of the complainant’s mother, they were not required to obtain a search warrant.
47The third Grant factor – society’s interest in the adjudication of the case on the merits – favours admission of the messages. Although the messages were not essential to the Crown’s case, they were significant evidence. They were reliable evidence which could be used by the trier of fact as confirmatory of the complainant’s evidence.
48Weighing all of these factors, and in particular the police compliance with the law as stated by this court at the time of the investigation, if there was a breach of the appellant’s s. 8 Charter rights, it would not bring the administration of justice into disrepute to admit the texts from the complainant’s phones into evidence.
(iii) The more general s. 8 issue left undecided
49The elephant in the room in this appeal is whether the complainant’s age and the nature of her relationship with the appellant even matters to the s. 8 Charter analysis, in circumstances where the text messages were provided to the police from her electronic devices, with her mother’s consent, when the complainant alleged the appellant committed offences against her.
50The application judge decided the s. 8 Charter issue on the basis of factors related to the complainant’s age, that it would have been obvious that her parents could access her cell phones, and his finding that the appellant used the texts to facilitate the offences.
51The application judge did not address the more general question of whether – setting aside the age of a complainant and the nature of their relationship with the accused – there is either no reasonable expectation of privacy on the part of an accused (sender) in text messages exchanged with a complainant, provided to police with the complainant’s consent, from the complainant’s own electronic device, at the time of making an allegation of criminal conduct against the accused; or, alternatively, even if there is a residual reasonable expectation of privacy on the part of the accused in such texts, it does not constitute an unreasonable search or seizure when the police receive an electronic device with a complainant’s consent at the time the complainant makes an allegation of criminal conduct against the accused, and extract data which includes communications sent by the accused, again, with the complainant’s consent.
52The parties took opposing positions on this issue in their arguments on appeal. The appellant contended that the sender of texts has a reasonable expectation of privacy in those circumstances, and the police must obtain a search warrant to authorize the data extraction. The Crown contended, based on Campbell, that the investigative technique employed by the police – obtaining the consent of the complainant’s mother – rendered the appellant’s expectation of privacy in the texts on the complainant’s phones unreasonable. The Crown argued that the fact of consent of the complainant’s mother distinguishes this case from Marakah, and reduced the already diminished expectation of privacy in voluntarily sent text messages to a level below objective reasonableness.
53As this court observed in Knelsen, at footnote 6, this issue has not been conclusively decided by the Supreme Court. I reproduce the footnote because it helpfully summarizes the case law touching on this issue:
Indeed, whether s. 8 is engaged in cases of voluntary turnover of text messages by their recipient has not yet been conclusively decided by the Supreme Court. As Paciocco J.A. noted in R. v. Lambert, 2023 ONCA 689, at para. 54, it is arguable that the Supreme Court’s decision in Cole supports the proposition that it is possible for s. 8 to be engaged – and breached – even where electronic data is “handed over” to the police. Nevertheless, in Reeves, Karakatsanis J. stated that “[t]he issue of whether s. 8 is engaged when a citizen voluntarily brings an item to the police remains for another day”. Beyond Cole, the closest that the Supreme Court has come to addressing this issue is in obiter in Marakah. Again, the text messages in Marakah were accessed by the police without a warrant or the consent of either party to the communications. McLachlin C.J., at para. 50, responding to concerns raised by the dissent about the implications of the broad acceptance of s. 8 standing for the sender of text messages on the other party’s cell phone, suggested three ways in which a breach could be avoided “[a]ssuming that s. 8 is engaged when police access text messages volunteered by a third party” (emphasis added). She cited to R. v. Orlandis-Habsburgo, 2017 ONCA 649, at paras. 21 to 35, where Doherty J.A. considered the Crown’s argument that there was no s. 8 breach where information had been brought to the police voluntarily. After canvassing the case law, which was unsettled, he stated at para. 34:
I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative.… [I]t is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police.
54Since Knelsen, the Supreme Court has reiterated in Campbell that there is no “automatic” rule of standing for text messages, and “[w]hether an individual has a reasonable expectation of privacy in a text message conversation must be assessed based on the totality of the circumstances in each case”: at para. 40.
55The ultimate bar against which a reasonable expectation of privacy is measured is whether, in a particular set of circumstances, the public’s interest in being left alone by government must give way to the government’s interest in intruding on an individual’s privacy in order to advance its goals, notably those of law enforcement: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60. Decisions considering when an individual has a reasonable expectation of privacy have also described this concept in terms of what expectations of privacy should be protected in a free, democratic, and open society, balancing the individual’s right to be left alone and the community’s interest in protection: Campbell, at para. 48; R. v. Bykovets, 2024 SCC 6, at para. 7; Reeves, at para. 28; R. v. Patrick, 2009 SCC 17, at para. 14.
56As was observed by Doherty J.A. in the passage quoted above from Orlandis-Habsburgo, there is much to commend the proposition that reasonable and informed Canadians would not expect the sender of text messages to have an expectation of privacy in text messages voluntarily sent to the phone of a complainant, when the complainant reports a criminal offence committed by the accused to police, and gives the police the phone and permission to extract data from it because the complainant believes the texts will provide evidence of the offence. Or, if the accused has a residual expectation of privacy in sent texts in this context, the combination of the complainant making a statement to police alleging a criminal offence committed by the accused and providing consent for the police to extract texts on the complainant’s phone between the accused and the complainant may well be sufficient to render the warrantless search reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278; R. v. Kang-Brown, 2008 SCC 18, at paras. 19, 23; R. v. Chehil, 2013 SCC 49.
57However, I would leave this issue for another day. The assessment of whether there is a reasonable expectation of privacy in text messages in a given set of circumstances is a highly fact dependent determination: Marakah, at para. 5; Campbell, at para. 40. Our courts are still working through the contours of reasonable expectations of privacy and what constitute unreasonable searches and seizures in relation to electronic communications. The resolution of the more general issue of whether the s. 8 Charter rights of an accused are infringed where the police extract from a complainant’s phone, with her consent, text messages received from the accused should be left to an appeal where it would directly affect the outcome.
(2) The trial judge did not err in declining to admit one sexually explicit text message sent by an unknown sender to the complainant, pursuant to ss. 276 and 278.92 of the Criminal Code
58The appellant argued that the trial judge erred in ruling that a sexual text message sent to the complainant by an unknown sender did not meet the stage one test under ss. 276 and 278.92 of the Criminal Code.
59The appellant brought a pre-trial motion seeking admission of data from the complainant’s cell phones. The data was broadly in two categories: (i) the complainant’s internet search history; and (ii) a single three-word text with apparently sexual content sent to the complainant by an unknown sender. The text was dated October 7, 2017, which post-dated the complainant’s disclosure of the sexual abuse by the appellant. The appellant argued that the two categories of data from the complainant’s phones were relevant to the complainant’s “sexual literacy”. He argued that the evidence had exculpatory value because it could provide an alternative explanation for the complainant to have sexual knowledge, at such a young age, other than having been sexually abused by the appellant (i.e., other than guilt). The internet search history suggested that there was blocking and deleting of conversations that were sexual in nature, as well as accessing of sexual content.
60The trial judge ruled that the search history was admissible, with some redactions. However, he ruled that the text message from an unknown sender failed to meet the stage one test for admissibility under ss. 276 and 278.92. In brief oral reasons, he found that the text lacked relevance and the request to use it was a “fishing expedition”.
61It is not necessary to decide if the trial judge erred in finding the single sexual text from an unknown sender failed to meet the stage one test of the s. 276 and 278.92 admissibility process. In any event, it would not have been admissible at stage two.
62Supreme Court decisions explaining the stage two analysis under ss. 276(2) and 278.92 make clear that in assessing whether evidence sought to be admitted has “significant probative value”, as required by s. 276(2)(d) and s. 278.92(2), and in balancing the probative value of evidence against its prejudicial effect, a trial judge must consider whether there is other evidence that allows the defence to raise the same issue or theory. If the defence is able to raise an issue with other evidence, then denial of the right to use another particular piece of evidence may not adversely impact the right to make full answer and defence: R. v. Goldfinch, 2019 SCC 38, at para. 69; R. v. T.W.W., 2024 SCC 19, at para. 41.
63In this case, the admissibility of the one text from the unknown sender must be considered in the context of the extensive evidence of the complainant’s internet search history which the trial judge admitted. The complainant was cross-examined extensively on her internet history of allegedly sexual searches. In that context, the single text from an unknown sender did not have significant probative value, and any probative value it had was outweighed by its prejudicial effect. Given the trial judge’s ruling admitting the complainant’s internet search history, the appellant was not denied the opportunity to explore the issue of the complainant’s “sexual literacy” at trial.
(3) The trial judge did not err in his instructions to the jury regarding the absence of evidence that the complainant had a motive to fabricate
64The appellant argued that the trial judge erred in his jury instructions on motive to fabricate. The appellant contended that the trial judge erred by instructing the jury that absence of evidence of a motive to fabricate was one factor, among many, that they could consider in assessing the complainant’s credibility. The appellant argued that the trial judge was required to instruct the jury that absence of evidence of motive to fabricate was a neutral factor in assessing the complainant’s credibility.
65I would reject this argument. Although some decisions of this court have said that absence of evidence of a motive to fabricate is a neutral factor in assessing a witness’s credibility,[8] the Supreme Court decision in R. v. Gerrard, 2022 SCC 13 rejects this proposition, as I explain below. The trial judge’s instructions on motive to fabricate are consistent with Gerrard and error free.
66The trial judge instructed the jury as follows on the issue of motive to fabricate:
I must also remind you that the defence has no onus or burden to establish a motive for the complainant to fabricate her evidence. The existence of a good relationship between [the complainant] and [the appellant], as demonstrated in this case, does not mean that the complainant had no motive to fabricate her evidence. Any absence of evidence of animus or a motive to fabricate is but one factor amongst many for you to consider. It requires caution in that motive sometimes remains hidden and that the absence of a motive to fabricate evidence is not determinative of the truth of the complainant’s evidence. You are directed that the absence of a bad relationship or the fact of a good relationship cannot be used to bolster [the complainant’s] credibility.
67A trier of fact may consider absence of evidence of a motive to fabricate as one factor, in the context of the evidence as a whole, in assessing a witness’s credibility. In engaging in this permitted use, the trier of fact must avoid three impermissible lines of reasoning: (i) they must not impose a burden on the accused to show that a witness has a motive to fabricate because that would improperly shift the burden of proof; (ii) they must not equate absence of evidence of a motive to fabricate with a proven lack of motive to fabricate because sometimes a witness’s motives remain hidden; and (iii) they must not reason that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth: Gerrard, at para. 4; R. v. Ignacio, 2021 ONCA 69, at paras. 38-59; R. v. Polemidiotis, 2024 ONCA 905, at paras. 59-62.
68The trial judge correctly instructed the jury that the appellant had no burden to show that the complainant had a motive to fabricate her evidence. He correctly instructed them that the absence of evidence of a motive to fabricate on the part of the complainant was one factor, “amongst many”, that they could consider in assessing the complainant’s credibility.
69In addition, the trial judge correctly instructed the jury that they must use caution in weighing the absence of evidence of a motive to fabricate because a person’s motives sometimes remain hidden. He also correctly cautioned them that the absence of a motive to fabricate is not determinative of the truth of the complainant’s evidence.
70These instructions correctly explained to the jury the limited use they could make of the absence of evidence of a motive to fabricate and appropriately cautioned them on the three areas that the case law has identified as impermissible lines of reasoning.
71I note that the only aspect of the instruction objected to by the defence at trial was the trial judge’s refusal to give an instruction that absence of evidence of a motive to fabricate was a neutral factor in assessing the complainant’s credibility, and instead instructing the jury that it was “one factor amongst many” that the jury could consider in assessing her credibility. As I have explained, the trial judge correctly refused to give the “neutral factor” instruction. The balance of the elements of the instruction were requested by the defence (and agreed to by the Crown).
72I would reject this ground of appeal.
Disposition
73It is for these reasons that the appeal was dismissed.
Released: March 17, 2025
“I.N.”
“J. Copeland J.A.”
“I agree. I.V.B. Nordheimer J.A.”
“I agree. Sossin J.A.”
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C‑46.
2It later turned out that this diagnosis was in error and the correct diagnosis had nothing to do with sexual contact. The trial judge instructed the jury on this issue and nothing arises from it on appeal.
3The complainant’s trial evidence was tendered through a combination of the admission of her videotaped statements to police, which she adopted, pursuant to s. 715.1 of the Criminal Code, and viva voce evidence.
4At the hearing, the appellant abandoned a ground of appeal alleging error in the jury instruction in relation to assessing his credibility.
5A different judge than the trial judge heard the pre-trial s. 8 Charter application.
6The complainant’s mother had previously been aware that the complainant and the appellant texted, but not of the frequency with which they did so.
7R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
8I note that the weight of this court’s decisions did not support this proposition, even before Gerrard.
