His Majesty the King v. R.S.
2025 ONCA 790
COURT OF APPEAL FOR ONTARIO
Huscroft, George and Gomery JJ.A.
BETWEEN
His Majesty the King — Respondent
and
R.S. — Appellant
Howard L. Krongold and Hanna Colbert, for the appellant
Meaghan Cunningham, for the respondent
Heard: November 14, 2025
On appeal from the convictions entered by Justice Catriona Verner of the Superior Court of Justice, on January 6, 2023.
REASONS FOR DECISION
1The appellant appeals his convictions for sexually assaulting and sexually interfering with his stepdaughter. He argues that the trial judge erred in finding a proven absence of motive to fabricate or, in the alternative, if she found there was an absence of evidence of a motive to fabricate, that she improperly used it to bolster the complainant's credibility. At the appeal hearing, the appellant abandoned a second ground of appeal related to the trial judge's assessment of reliability.
2At the conclusion of oral argument we advised counsel that the appeal was dismissed and that our reasons would follow. These are our reasons.
3We begin by noting that the trial judge rejected the appellant's submission that the complainant had a specific motive to fabricate (i.e., punish him for stealing from her mother and for "ruining their family"). The trial judge found that the single thread of motive alleged by the appellant could not logically connect each of the disclosures in this case, one of which occurred before the family breakdown and another where, after disclosing the abuse to her mother, the complainant asked that nothing be done about it.
4The appellant argues that the trial judge went beyond finding an absence of evidence of a motive to fabricate and, in effect, impermissibly found a proven absence of a motive to fabricate.
5In our view, the trial judge did not find a proven absence of motive to fabricate; she found that there was no single motive that could explain all of the complainant's disclosures, which was available to her.
6Nor did the trial judge improperly consider the absence of evidence of a motive to fabricate as part of her credibility assessment. The risk that arises in cases like this is that a trier of fact will give undue weight to the absence of evidence of a motive to fabricate or move directly from that finding to a conclusion that the complainant is telling the truth: R. v. R.K., 2023 ONCA 653, at para. 45. Although trial judges "must consider issues relating to motive to fabricate with care", they are entitled to "consider an absence of evidence of a motive to fabricate, in the context of the evidence as a whole, as a factor relevant to credibility": R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 4; R. v. Polemidiotis, 2024 ONCA 905, 174 O.R. (3d) 359, at para. 59. That is what the trial judge did in this case. She found that the complainant did not fabricate the allegations of abuse in order to punish the appellant and, to the extent she took this into account when assessing the complainant's credibility, she did not give it undue weight. It was just one of many factors she considered.
7The appellant argues that the fact the trial judge considered other factors in her assessment of the complainant's credibility is not sufficient to demonstrate that the finding was not given undue weight. The underlying concern raised by the appellant is that the absence of evidence of motive to fabricate is not determinative of the truth of the complainant's evidence because of the possibility of a hidden motive: R. v. Ignacio, 2021 ONCA 69, at para. 41. According to the appellant, the necessary implication of finding "no single motive" is that that the trial judge found there could have been no hidden motive.
8We reject this argument. Read in context, the trial judge's reasons did not have the effect of excluding the possibility of a hidden motive. Nor was the trial judge obligated to instruct herself on the logical possibility of a hidden motive to be able to rely on the absence of evidence of motive to fabricate, among other factors, in concluding that the complainant was credible. The trial judge's assessment of other factors in this case did not amount to a mere technicality to satisfy the legal test as the appellant suggests.
9For these reasons the appeal is dismissed.
"Grant Huscroft J.A."
"J. George J.A."
"S. Gomery J.A."
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.