Court of Appeal for Ontario

Date: 2017-10-02 Docket: C62803

Judges: Cronk, Juriansz and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Victor Nnabuogor Appellant

Counsel

Richard Litkowski, for the appellant

Andreea Baiasu, for the respondent

Heard

September 28, 2017

Background

On appeal from the decision of the Summary Conviction Appeal Court dated September 22, 2016 by Justice Tamarin M. Dunnet of the Superior Court of Justice, dismissing the appeal from the convictions entered on September 14, 2015 by Justice Rebecca Rutherford of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of assaulting and sexually assaulting the complainant, after a summary trial in the Ontario Court of Justice. He appealed those convictions unsuccessfully to a Summary Conviction Appeal Court. He now seeks leave to appeal the Summary Conviction Appeal Court decision, asking that the convictions be quashed and a new trial be ordered.

[2] He contends that the Summary Conviction Appeal judge erred in law by not recognizing that the trial judge confused the distinction between a proved absence of motive to lie and the absence of evidence of a motive to lie, and by making a positive finding that the complainant had no motive to lie simply because there was no proof that she had a motive to do so. He also urges that the Summary Conviction Appeal Judge erred by failing to find that, in the event of an error of law, the trial judge could not use the proviso to sustain the convictions.

[3] The application for leave to appeal is denied. The test for leave to appeal described in R. v. R.R., 2008 ONCA 497 has not been met.

[4] The legal rule that is engaged – the distinction between a proved absence of motive to lie and the absence of evidence of a motive to lie – is the subject of clear and settled case law: R. v. L.(L.), 2009 ONCA 413. No question of law alone of general significance arises in this appeal.

[5] Nor are the merits of the appeal strong. On its face, the impugned comment by the trial judge relating to the complainant, "I do not find there to be any underlying motivation on her part to fabricate evidence," is not a positive finding that the complainant did not have a motive to fabricate. This passage is a straightforward indication by the trial judge that she declined to find a motivation to fabricate. The context of the decision reinforces that this passage communicates a rejection of efforts by the appellant to persuade the trial judge that the defence had demonstrated a positive motive for the complainant to lie.

[6] The Summary Conviction Appeal Judge therefore committed no error, let alone a clear error, when she found that, in this passage, the trial judge was "reject[ing] the defence submission to make a positive finding of a motive to lie."

[7] Nor did the Summary Conviction Appeal Judge concede the possibility of an error when commenting, "Even if [the Trial Judge's] sentence … raises concerns about a misstatement of law ... it is not material to her finding of guilt." The Summary Conviction Appeal Judge was simply explaining that even if there had been an error on this point it would have had no impact on the outcome.

[8] It is not necessary for us to decide whether, in making this comment, the Summary Conviction Appeal Judge implicitly and improperly invoked the proviso. Given that her decision was that no error of law had occurred, the application of the proviso is moot.

[9] Leave to appeal is therefore denied and the appeal is dismissed.

"E.A. Cronk J.A."

"R.G. Juriansz J.A."

"David M. Paciocco J.A."