WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

Date: 20210203 Docket: C67188

Pepall, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Kenneth Ignacio Appellant

Counsel: Michael Dineen, for the appellant Jeffrey Wyngaarden, for the respondent

Heard: October 20, 2020 by video conference

On appeal from the conviction entered on March 7, 2019 by Justice P. Andras Schreck of the Superior Court of Justice, sitting without a jury, with reasons reported at 2019 ONSC 1511.

Pepall J.A. :

I. Introduction

[1] The appellant, Kenneth Ignacio, appeals from his conviction for sexual assault. He raises one ground of appeal. He argues that the trial judge erred in finding that the complainant had no motive to fabricate and in considering this as a factor in assessing her credibility.

[2] The appellant says that the trial judge found a proven absence of motive to fabricate, even though the evidence did not support such a finding. At most, the trial judge could have found an absence of evidence of motive to fabricate. The trial judge then wrongly used his finding that the complainant had no motive to fabricate to enhance her credibility.

[3] For the reasons that follow, I would dismiss the appeal. Placed in context, the trial judge rejected the motive to fabricate argument advanced by the appellant. He was entitled to consider the absence of evidence of a motive to fabricate as one of many factors in his credibility analysis.

II. Facts

[4] The appellant and the complainant, who are both in their early twenties, met at a concert at the end of April 2017. Over the next few days, they exchanged text messages. A few days later, they both attended a barbecue at the home of the appellant’s cousins. The complainant drove in her car and arrived around 11 p.m. The appellant was already there. Both the appellant and the complainant agreed that he was very intoxicated. When it was time to leave the barbeque about an hour and a half later, the complainant offered to drive the appellant home. She had consumed very little alcohol and was sober. The appellant accepted the offer of a lift.

[5] They kissed in the car as the complainant was driving the appellant home. She testified that he insisted on giving her a kiss each time they stopped at a red light and that she agreed to do so the third time they stopped. The appellant testified that they kissed at each red light.

[6] She drove onto Highway 401 and then they agreed to exit and park the car. According to the complainant, he asked her to pull over so they could talk and he could sober up. According to the appellant, he had jokingly mentioned that kissing in the car might result in an accident and she then told him that she knew of a place they could go. She pulled off the highway and parked in a nearby parking lot.

[7] The appellant got in the back seat and invited the complainant to join him. The complainant testified that she agreed to do so but told him that she would only kiss him and do nothing else and she wanted him to understand that she would not have sex with him. He denied that she had said anything about not having sex with him before getting into the back seat.

[8] They began kissing in the back seat. The appellant put his hand up her shirt and under her bra and started to unbutton her pants. According to the complainant, she told him to stop, but he said that he would make her feel good and then took off her pants. He said she arched her back to facilitate their removal but she said he did so without any assistance from her.

[9] He performed oral sex on the complainant for about three minutes, according to the complainant. He then pulled his pants down and exposed his penis. She testified that he said, “Are you really not going to…”, which she took to mean he wished her to perform fellatio on him, which she did.

[10] The appellant told the complainant that the fellatio was “not working” for him, and that he wanted to have sex.

[11] The complainant’s and the appellant’s accounts then diverged.

[12] According to the complainant, she told him that they were not going to have sex and that things had “already gone too far”, saying, “I am not having sex with you, not now, not tonight, not ever.” She testified that the appellant nonetheless forcefully penetrated her vagina without her consent. She told the appellant to stop and hit him on the chest, but he grabbed her hands and pushed them down beside her. After he had finished, the complainant moved to the front seat. She testified that he sat next to her and said, “S., you didn’t really want that. I raped you.”

[13] According to the appellant, after the complainant performed fellatio on him, he said, “Can we just like do it?” (or words to that effect), meaning he wished to have sexual intercourse, and she responded by saying, “Don’t ejaculate inside me”, or, “Yes, but just don’t ejaculate.” He agreed not to but unintentionally did so. He denied that she ever said anything to indicate that she did not consent to sexual intercourse. He said she “freaked out” and was horrified when he told her he had ejaculated inside her.

[14] She searched on her phone for a pharmacy so that she could purchase a contraceptive pill. According to the complainant, the appellant insisted on accompanying her, whereas he said he accompanied her at her request. The complainant took the pill and then dropped the appellant off at an intersection. He said that before leaving the car, he gave her a hug and said that he was sorry for ejaculating inside her.

[15] The complainant called a friend and told her what happened but not the details. She asked her friend to stay on the phone until she got home. The complainant’s phone records show that she made a 16-minute call at 4:06 a.m. on May 1, 2017.

[16] The next day, the complainant went to her place of employment and then to the hospital with a friend from work for a “rape kit” examination. She subsequently contacted the police. Her friend from work testified that when the complainant arrived at work, she looked disheveled, had obviously been crying, and was pale. On the way to the hospital, she was upset, crying, and “shaky”. She would calm down from time to time only to start crying again.

[17] At 2:43 p.m. on May 1, 2017, the appellant sent a text message to the complainant saying, “Hey just woke up. How are you? I hope everything’s fine with you”. It was followed by another text message saying, “I’m truly sorry for last night”. He testified that he was apologizing for having ejaculated inside of the complainant. The complainant did not respond to his text messages.

[18] In sum, at trial, the complainant testified that the sexual intercourse was not consensual and the appellant testified that it was.

III. Trial Judge’s Decision

[19] The trial judge rejected the appellant’s evidence and held that it did not raise a reasonable doubt. The central difficulty with the appellant’s evidence was his intoxication at the time of the events. His intoxication affected both his reliability and his credibility. The appellant himself had testified that he was binge drinking to the point of blacking out and only recalled “bits and pieces” of the evening. This affected his reliability because intoxication affects one’s ability to perceive and recall events.

[20] The intoxication also affected the credibility of the appellant’s evidence. The trial judge found that the appellant’s claim to be able to recall every detail of his sexual interaction with the complainant was inconsistent with his high degree of intoxication. The trial judge found that the appellant was willing to “fill in blanks” in his testimony when necessary.

[21] The trial judge accepted the complainant’s evidence. He found the complainant’s evidence was “plausible and consistent” and she was not “prone to exaggeration”. She candidly admitted that some of the sexual activity, such as the oral sex, was consensual. He also considered the evidence of the complainant’s work friend on the complainant’s emotional state the day after the alleged sexual assault and concluded that it supported the complainant’s testimony.

[22] The trial judge rejected the defence’s allegation that the complainant had a motive to fabricate. He commented on motive in two paragraphs, the first of which is the contentious one for the purpose of this appeal and is placed under the heading “[The Complainant’s] Evidence”:

I note as well that [the complainant] had no motive to falsely accuse Mr. Ignacio of a serious crime. To the contrary, it is clear from the evidence that prior to the sexual activity, she liked Mr. Ignacio and hoped to get to know him better. In making this observation, I am mindful that the burden of proof is on the Crown and that there is therefore no obligation on an accused to demonstrate why a witness would testify falsely: R. v. Krack (1990), 56 C.C.C. (3d) 555 (Ont. C.A.), at pp. 561-562. Nonetheless, this is a factor to consider: R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at para. 4; R. v. Plews, 2010 ONSC 5653, at para. 335. I recognize that the defence has alleged a motive to fabricate that is related to [the complainant’s] fear of having become pregnant, an issue I will address later in these reasons.

[23] Two paragraphs later, under the heading “The Alleged Motive to Fabricate”, the trial judge wrote the following:

It was submitted on behalf of Mr. Ignacio that [the complainant] had a motive to fabricate a sexual assault because she was afraid that she had become pregnant as a result of Mr. Ignacio ejaculating inside her and needed to explain any pregnancy to her parents in such a way as to absolve herself of having any responsibility for the situation. It was also submitted that this fear of pregnancy explains why [the complainant] was so upset the following day. In my view, the problem with this theory is that [the complainant] had the wherewithal to obtain a “morning after” pill immediately after Mr. Ignacio ejaculated inside her. She took the pill and there is no suggestion that she had any reason to think that it would not work. She had no real reason to believe that she was pregnant. Even if she had such a fear, it is difficult to understand why she would subject herself to a “rape kit” examination the following day. If she was worried about being pregnant, surely undergoing a pregnancy test would have made far more sense.

[24] The trial judge accepted the complainant’s evidence and found beyond a reasonable doubt that the appellant sexually assaulted her.

IV. Parties’ Positions

[25] The appellant submits that the trial judge erred in finding that the complainant had no motive to fabricate. The evidence was not capable of supporting such a conclusion and the finding could not properly be used to infer that the complainant was telling the truth. Evidence of a prior good relationship between the appellant and the complainant is not sufficient to justify a positive finding that the complainant had no motive to fabricate and cannot be used to infer that the complainant was telling the truth.

[26] The appellant submits that the trial judge’s error affected the result. The appellant’s evidence was not inherently implausible, and the trial judge might have had a reasonable doubt had he not relied on the supposed proven lack of motive to fabricate in accepting the complainant’s evidence. The appellant argues that the structure of the trial judge’s reasons also supports his improper reliance on absence of motive to fabricate.

[27] The Crown submits that the trial judge’s reasons should not be read as containing an affirmative finding that there was no motive to fabricate. Read in context, the trial judge’s comments were responsive to the arguments surrounding motive made by the defence. The trial judge did not reverse the onus of proof or improperly infer that the complainant was telling the truth because there was no apparent motive for her to lie.

[28] Even if the trial judge erred in conflating the absence of evidence of motive to fabricate with a finding of no motive to fabricate, the Crown argues that the error did not cause a miscarriage of justice and the appeal should be dismissed based on the curative proviso.

V. Analysis

[29] “The distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate is not easily digestible”: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 97, per Watt J.A. As Watt J.A. explained in John, at para. 93:

The former is not the equivalent of the latter, nor is the latter the same as the former: R. v. L. (L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another way, it does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R. v B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: R. v. L. (L.), at para. 44. [Emphasis added.]

[30] In addressing this appeal, there are in essence two questions that require a response:

(i) Did the trial judge find that the Crown had proven that the complainant had no motive to fabricate or that there was, as the Crown asserts, simply an absence of evidence of any motive to fabricate?

(ii) If the evidence fell short of establishing that the complainant had no motive to fabricate and the trial judge was simply adverting to an absence of evidence of any motive to fabricate, was he entitled to consider that absence in his analysis of the complainant’s credibility?

(a) Proof of no motive to fabricate

[31] The first part of the appellant’s argument is that the trial judge made a positive finding that the complainant had no motive to fabricate when the evidence did not permit him to do so. While the cases leave open the possibility that the Crown can prove that a complainant had no motive to fabricate, they set a high bar for proving no motive to fabricate. This is because motives can remain hidden or there may be no motive at all: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 22.

[32] If the Crown has proven that the complainant had no motive to fabricate, the Crown has “a powerful platform to assert that the complainant must be telling the truth”: Bartholomew, at para. 21. However, in most cases, the trier of fact will be faced instead with an absence of evidence of any motive to fabricate on the part of the complainant.

[33] In this case, had the trial judge found that the Crown had proven no motive to fabricate, such a finding would have been in error. The only evidence upon which the trial judge could make this finding was the evidence that the complainant and the appellant had a prior good relationship. Evidence of a good relationship between the complainant and the accused, standing alone, is insufficient to establish that the complainant had no motive to fabricate: Bartholomew, at para. 25; and L.L., at para. 45.

[34] However, I am not persuaded that the trial judge found that the Crown had proven no motive to fabricate. If that had been the case, as discussed, the Crown would have had “a powerful platform” to assert that the complainant was telling the truth. One would expect such a finding to play a much more prominent role in the trial judge’s analysis of credibility than it did. Instead, it simply amounted to an “observation” and “a factor to consider”, to use the trial judge’s words.

[35] Moreover, the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate. In the context of the defence submissions, he was entitled to look to the evidence for any suggestion of motive and conclude that there was no such evidence. The trial judge’s reference to the state of the relationship between the complainant and the appellant does not reflect a finding that the complainant had no motive to fabricate. It is equally consistent with a finding that there was no evidence of any motive to fabricate.

[36] In my view, the language the trial judge used and the context are much more reflective of a finding that there was an absence of evidence of any motive to fabricate. The trial judge did not find that the Crown had proven that the complainant had no motive to fabricate. He effectively found that there was an absence of evidence of any motive to fabricate, and he treated this finding as one factor in the credibility analysis.

(b) Absence of evidence of motive to fabricate may be considered in credibility analysis

[37] This does not end the matter, however. The question then becomes: was the trial judge entitled to treat the absence of evidence of motive to fabricate as a consideration in assessing the complainant’s credibility?

[38] Both R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.) and L.L. say that the absence of evidence of motive may be considered as a factor in assessing credibility.

[39] In Batte, the appellant was convicted of sexual offences in relation to two complainants. Among other things, the appellant argued that the trial judge erred in instructing the jury that they could ask themselves why the complainants would have fabricated the allegations and subjected themselves to the trial process. At trial, the defence had argued that the complainants hated the appellant, and their hatred motivated them to fabricate the allegations: at para. 119.

[40] Doherty J.A. confirmed that juries are entitled to consider whether there is evidence of a motive to fabricate, and he identified problems for trial judges to avoid in instructing on this issue, writing, at paras. 120-121:

It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility.

What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that the complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate is only one factor to be considered in assessing credibility. [Footnote omitted; emphasis added.]

[41] Doherty J.A. held that the trial judge had not erred in his instruction to the jury because, looking at the charge as a whole, the jury would have understood that in assessing the complainants’ credibility, they were required to consider many factors, and not only the issue of motive: at para. 125. It would have been preferable, however, for the trial judge to have reminded the jury “that motives sometimes remain hidden and that the absence of a motive to fabricate evidence was not determinative of the truth of the complainant’s evidence”: at para. 125.

[42] In L.L., a 2009 decision of this court, the appellant was convicted of incest following a jury trial. The trial Crown had asked a series of improper questions of the appellant’s son relating to the complainant’s motive to fabricate, and in closing submissions, relied heavily on the theory that the complainant had no motive to fabricate.

[43] This court allowed the appeal. The Crown’s closing submissions suggested that the Crown had proven a lack of motive to fabricate when the evidence was incapable of supporting such a conclusion. The Crown also created a risk that the jury would leap to the conclusion that the complainant must be telling the truth if there was no demonstrated motive for her to lie.

[44] In outlining what the trial judge ought to have told the jury, Simmons J.A. did not say that the trial judge should have told the jury they could not consider the absence of any apparent motive to fabricate. On the contrary, she said that the trial judge should have told the jury that they could consider it, but only as one factor among many: at paras. 19, 53. See also, R. v. M.B., 2011 ONCA 76, 267 C.C.C. (3d) 72.

[45] The appellant relies on R. v. Sanchez, 2017 ONCA 994 and Bartholomew in support of his position that absence of evidence of motive to fabricate is an improper consideration in a credibility analysis. He does not suggest that Bartholomew and Sanchez have overruled Batte and L.L. Rather, he says that these more recent decisions have clarified the proper treatment of the absence of evidence of motive to fabricate, which is that it should not be considered as anything more than a “neutral” factor.

[46] I am not persuaded that Sanchez and Bartholomew stand for the proposition advanced by the appellant, which would arguably be inconsistent with Batte and L.L.

[47] In Sanchez, Nordheimer J.A. allowed the appeal of convictions for historical sexual offences and accepted that the trial judge made multiple errors in assessing credibility, one of which was the trial judge’s reasoning on motive to lie. However, at para. 30, he observed, that “individually none of the failings I have identified might prove fatal to the trial judge’s credibility findings”. While he did note, at para. 25, that the absence of a proven motive to fabricate is not particularly probative of a witness’s credibility, he did not prohibit trial judges from considering the absence of evidence of motive to fabricate. Rather, he commented that this is an unreliable factor, and it should not be used “as a foundation to enhance the witness’ credibility” (emphasis added). I understand this statement as a caution against placing an improper emphasis on the absence of evidence of motive to fabricate. This is consistent with what this court said in Batte and L.L. that this is only one factor among many.

[48] To this I would add Nordheimer J.A.’s most recent statement in R. v. W.R., 2020 ONCA 813, at para. 18:

I begin this issue by noting that there is a difference in law between an absence of evidence of a motive to fabricate (that is, no evidence either way) and a proven absence of a motive to fabricate (that is evidence that establishes that no motive existed). The former is an element that may be considered in assessing the credibility of a witness, but it is only one element. On the other hand, the latter may be a compelling reason to conclude that the witness is telling the truth.

[49] In Bartholomew, this court allowed the appeal because “the trial judge erred in concluding that there was a proved absence of motive. This conclusion impacted the trial judge’s assessment of the complainant’s credibility, which was a central issue in the case”: at para. 9.

[50] Trotter J.A. went on to explain that the evidence in Bartholomew was not capable of supporting the conclusion that the complainant had no motive to fabricate: at paras. 24-26. The “evidence of a good relationship between the complainant and the appellant was not capable of proving that the complainant had no motive to fabricate; it could do no more than support the conclusion of an absence of evidence of a proved motive”: at para. 25. “This state of affairs was not capable of enhancing the complainant’s credibility, as the trial judge did. At best, it was a neutral factor” (emphasis added): at para. 25.

[51] As I read Bartholomew, Trotter J.A. did not go so far as to say that the absence of evidence of motive to fabricate will always be a “neutral factor” in the credibility analysis. He did not say so explicitly in his summary of the law at paras. 20-23, although he did caution trial judges against moving “from an apparent lack of motive to the conclusion that the complainant must be telling the truth”: at para. 22. His comment at para. 25 that the evidence of a good relationship between the complainant and appellant was a “neutral factor” was made in the context of that particular case. The real problem in Bartholomew was the trial judge’s finding that the complainant had no motive to fabricate, which was unsupported by the evidence. In my view, without a more explicit statement, Bartholomew should not be read as having revised the principles established in Batte and L.L.

[52] Consistent with this interpretation, in several cases following Bartholomew (see, for example, W.R.; R. v. Mirzadegan, 2019 ONCA 864; and R. v. MacKenzie, 2020 ONCA 646[1]), this court has confirmed that the trier of fact is entitled to consider the absence of evidence of motive to fabricate as one factor in assessing the complainant’s credibility. As in Batte and L.L., the cases caution against placing an improper emphasis on the absence of evidence of motive to fabricate, finding a proven absence of motive when the evidence does not support such a finding, and placing an onus on the accused to prove the complainant had a motive to lie. But, assuming these errors are not present, the trier is entitled to consider the absence of evidence of motive to fabricate as one factor among many in assessing the complainant’s credibility.

[53] In MacKenzie, Doherty J.A., writing for himself, van Rensburg and Trotter JJ.A., confirmed that the absence of evidence of motive to fabricate may be left with the jury as a factor to consider in assessing the complainant’s credibility. In MacKenzie, the appellant argued that Crown counsel improperly invited the jury to find that the appellant’s failure to prove a motive to fabricate on the part of the complainant confirmed the complainant’s evidence. The defence argued at trial that the complainant was fabricating her evidence and suggested two possible motives.

[54] Doherty J.A. rejected the appellant’s argument, observing, at para. 34:

It was open to the jury to reject the motives to fabricate offered by the defence and to conclude there was no evidence of a motive to fabricate. If the jury took that view, the absence of any evidence of a motive to fabricate could be used as one factor in assessing [the complainant’s] credibility: see R. v. J.(H.), 2020 ONCA 165, at paras. 145-46.

[55] Doherty J.A. held that a brief reference to motive in the Crown’s closing address did not place any onus on the defence to prove that the complainant had a motive to lie, in light of the trial judge’s “repeated and correct instructions on the burden of proof, and the manner in which he dealt with the relevance of a witness’s potential motive”: at para. 38.

[56] Lastly, a case that bears some similarities to the case under appeal is this court’s decision in R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5. There this court dismissed an appeal where the trial judge explicitly found that the Crown had “proven an absence of a motive” to fabricate the allegations (at para. 106), or put differently, no motive to fabricate. Before this court, the appellant argued that “the trial judge erred by finding that the Crown had established the complainants’ lack of a motive to fabricate”: at para. 104. This court rejected that argument.

[57] Cronk J.A., writing for the court, accepted the distinction between the absence of evidence of a demonstrated motive to fabricate and affirmative proof of no motive to fabricate: at para. 107. She held that there was “no basis to conclude that the trial judge confused the absence of evidence of a motive to fabricate with the absence of such a motive”: at para. 108. The trial judge considered and rejected the defence suggestion that each complainant had a motive to fabricate. He did not suggest that the complainants must be telling the truth because no motive to fabricate had been demonstrated. Instead, he considered the absence of an established motive to fabricate as only one factor among many in assessing the complainant’s credibility. This was not in error, as it was consistent with Batte. Cronk J.A. concluded that it was “open to the trial judge to find an absence of apparent motive by the complainants to fabricate”: at para. 109.

[58] In other words, even though on its face, the trial judge appeared to have made a positive finding that the Crown had proven the absence of a motive to fabricate, this did not warrant allowing the appeal because of how the trial judge treated this conclusion. He did not treat it as dispositive, but only as a factor to consider.

[59] In this case, the trial judge’s treatment of the motive issue was consistent with the cases discussed. He specifically cautioned himself against placing any obligation on the accused to demonstrate why the complainant would fabricate her evidence. Nothing suggests that he leapt to the conclusion that the complainant must be telling the truth. He considered the complainant’s credibility independent from his conclusion that there was an absence of evidence of a motive to fabricate. As mentioned, the issue of motive to fabricate had been raised by the defence and the trial judge felt obliged to address it. Lastly, he did not place excessive weight on the absence of evidence of motive. Indeed, the trial judge identified the issue as an observation and acknowledged that it was just one factor to consider. As in W.R., the trial judge’s comment about motive did not “drive the trial judge’s credibility findings”, nor did he suggest that his findings on motive led him to conclude that the complainant must be telling the truth.

[60] Credibility findings are the province of the trier of fact. In this case, the trial judge clearly had no reasonable doubt that the appellant was guilty of sexual assault. His treatment of motive to fabricate did not infect that conclusion. In these circumstances, there is no need to rely on the curative proviso.

VI. Disposition

[61] For these reasons, I would dismiss the appeal.

Released: February 3, 2021 (“S.E.P.”)

“S.E. Pepall J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. David Brown J.A.”

[1] Paciocco J.A.’s comments in R. v. A.S., 2020 ONCA 229, and the court’s comments in R. v. S.H., 2020 ONCA 34, arguably could be interpreted as being to the contrary. However, the issue of motive to fabricate was not central to those appeals and the comments in both cases were obiter.