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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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: 2019-05-07

Docket: C65311

Judges: Roberts, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Martin Bartholomew Appellant

Counsel: Andrew Burgess, for the appellant Jeremy D. Tatum, for the respondent

Heard: March 22, 2019

On appeal from the conviction entered by Justice Donna G. Hackett of the Ontario Court of Justice on April 17, 2018.

Trotter J.A.:

A. Factual Overview

[1] The appellant was found guilty of one count of sexual assault and one count of sexual interference, contrary to ss. 271 and 151 of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge entered a conviction for sexual interference, and conditionally stayed the sexual assault count.

[2] The appellant challenged his conviction on the basis of alleged errors in the trial judge's reasons. At the conclusion of the oral hearing, the appeal was allowed and a new trial ordered, with reasons to follow. These are those reasons. As I will explain below, the trial judge erred in dealing with the issue of whether the complainant had a motive to fabricate the allegation against the appellant.

[3] The events giving rise to this case occurred in the 2002-2003 school year. The appellant, who was 41-42 years old at the time, was employed as a Special Needs Assistant at the complainant's middle school. The complainant was 12-13 years old and in grade 7. The complainant did not require any special assistance. However, he saw the appellant at the school on a daily basis.

[4] The complainant alleged a single incident of touching. He testified that it happened before a gym class. After changing into his athletic clothing, the complainant made his way from the change room to the gym via a space described at trial as a vestibule or short hallway. This is where he encountered the appellant. The complainant believed that he was the last student to leave the change room on the day of the incident.

[5] The appellant had his back to the door leading from the hallway to the gym, which would have prevented anyone from coming in from the gym. According to the complainant, the appellant asked him about his genital area, but the complainant could not remember exactly what the appellant said. The complainant stated that the appellant touched his penis under his shorts or pants for about five seconds. He was not sure whether it was also inside his underwear. The appellant said something reassuring afterwards, but the complainant could not remember exactly what was said. The complainant continued on his way into the gym. The incident left him feeling very confused. Nothing like this ever happened again.

[6] The appellant testified that he saw the complainant at school about four times a day. The complainant and other students would sometimes come to him with their problems. The appellant stated that he had a good relationship with the complainant. He denied touching the complainant in the manner that the complainant described, and denied stopping him to inquire about his genitals.

[7] The trial judge accepted the complainant's evidence. She rejected the appellant's evidence. She was satisfied beyond a reasonable doubt that the incident described by the complainant happened. In reaching these conclusions, the trial judge relied on "evidence of an absence of motive" on the complainant's part to fabricate the allegation.

B. Issues on Appeal

[8] The appellant advanced two grounds of appeal. First, he submitted that the trial judge erred in finding that the complainant had no motive to falsely accuse him. Second, the appellant argued that the trial judge held the appellant's evidence to a higher standard of scrutiny than she held the complainant's testimony to. The respondent contended that the trial judge made neither error.

[9] As discussed below, I agree with the appellant that 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. I would set aside the conviction and order a new trial on this basis alone.

C. Analysis

(1) Motive to Fabricate

[10] In order to properly frame this issue, it is necessary to delve further into the record.

[11] The complainant described his relationship with the appellant as "good" at the time the incident occurred. The complainant denied that he ever had an argument or dispute with the appellant. He looked up to the appellant and felt comfortable speaking to him, describing him as a mentor.

[12] The appellant agreed that he had a "good relationship" with the complainant. He could not recall any problems between the two of them.

[13] The complainant testified that, in the years following 2002-2003, he saw the appellant from time to time, at a plaza that was close to the school. They engaged in small talk. The appellant could not recall any such interactions with the complainant outside of school.

[14] The complainant insisted that he did not regard the incident as a "big deal". Indeed, he did not consider it to be sexual at the time it happened. He made no complaint to his parents, to school authorities, or to the police. The allegation came to light after the police contacted the complainant in September of 2016. This information came from a single answer from the complainant, elicited by the Crown (not Mr. Tatum) during examination-in-chief. It was not pursued further at trial.

[15] During closing submissions, defence counsel (not Mr. Burgess) acknowledged that the complainant appeared to harbour no bad feelings toward the appellant, such that revenge was an unlikely motive. However, she pointed out that there are "many reasons" why someone may fabricate an allegation, reasons that may never come to light. Asked by the trial judge to give some examples, defence counsel suggested financial gain. When asked if there was a financial motive in this case, defence counsel responded: "Well, I don't know Your Honour, which is really my point." When further challenged on the point, defence counsel submitted that "what you have here at most…is an absence of evidence of motive."

[16] The Crown acknowledged that there was no onus on the appellant to establish a motive. However, he referred to the defence submission that there was merely an absence of evidence of motive and said, "[t]hat's not what we have here", suggesting that a lack of motive was proven on the evidence. He submitted that it was a "very, very important fact to consider when examining the credibility of a witness".

[17] The trial judge agreed with the Crown's approach. She twice mentioned in her reasons for judgment that the complainant had no motive to fabricate the allegation. When first addressing the issue, the trial judge said:

The defence has no onus to point to a motive to fabricate. The onus in a criminal prosecution always rests upon the Crown. However, at the same time, an absence of motive can be relevant in assessing the credibility of a witness. In this regard, I find the evidence of both witnesses indicate that the nature of the relationship was such that M.K. [the complainant] did not have a motive, either back in 2002-2003 or in 2016-2017 to make up this allegation against [the appellant]. In addition, as noted earlier, M.K. did not go to the police, they called him.

I find there is evidence of an absence of motive which is relevant in assessing M.K.'s credibility. [Emphasis added.]

[18] Later in her reasons, the trial judge addressed the question of motive again:

While it is very important to remember that there is no onus on the defence to establish a motive, the defence did make submissions about M.K. having a possible monetary motive and that there are many reasons people lie. A money motive was never put to M.K. in cross-examination.

The absence of any evidence of a financial motive to lie is therefore noted in the context of this defence submission and should be considered in relation to the earlier remarks in this decision in relation to motive. [Emphasis added.]

[19] I agree with the appellant that the trial judge erred by transforming the absence of evidence of a motive to fabricate into a proven lack of motive, contrary to this court's decision in R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412.

[20] Criminal trials are often concerned with issues of human motivation. The issue of motive may arise in different contexts. While not an essential element of an offence, the Crown may sometimes rely on motive as circumstantial evidence of guilt to prove identity and/or intent: see Lewis v. The Queen, [1979] 2 S.C.R. 821, at pp. 833-838; and R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60. In this context, the cases underscore the "significant difference" between absence of proved motive and proved absence of motive: R. v. White (1996), 29 O.R. (3d) 577 (C.A.), at p. 608, aff'd , [1998] 2 S.C.R. 72, at para. 59.

[21] An ulterior motive, or a motive to fabricate, on the part of a complainant may be equally important. From the defence perspective, proof of such a motive provides a compelling alternative to the truth of the allegations. From a prosecutor's point of view, a proved absence of motive to fabricate provides a powerful platform to assert that the complainant must be telling the truth.

[22] However, problems occur when the evidence is unclear – where there is no apparent motive to fabricate, but the evidence falls short of actually proving absence of motive. In these circumstances, it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all: see R. v. J.V., 2015 ONCJ 815, at para. 132; R. v. Sanchez, 2017 ONCA 994, at para. 25; L.L., at para. 53; R. v. T.G., 2018 ONSC 3847, at para. 30; R. v. Lynch, 2017 ONSC 1198, at paras. 11-12.

[23] Therefore, in this context too, there is a "significant difference" between absence of proved motive and proved absence of motive: L.L., at para. 44, fn. 3. The reasons are clear. In R. v. B. (R.W.) (1993), 24 B.C.A.C. 1 (C.A.), Rowles J.A. explained, at para. 28: "it does not logically follow that because there is no apparent reason for a motive to lie, the witness must be telling the truth." This point was made in L.L., in which Simmons J.A. said, at para. 44: "the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate" (emphasis added). See also R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at paras. 104-109; and R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 93.

[24] In this case, the Crown at trial (and on appeal) relied on the uncontradicted evidence of a good relationship between the complainant and the appellant. However, this evidence must be placed in context. In describing his attitude toward the appellant, the complainant largely referenced their relationship in 2002-2003, roughly 15 years before the trial. The evidence of more recent interactions (i.e., at the plaza) was of limited value. According to the complainant, the last time such an interaction occurred was three years before the trial. The appellant could not recall any such interactions. It was clear that, by the time of trial, there was no relationship between the complainant and the appellant.

[25] More importantly, 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: White, at p. 608; L.L., at para. 45; John, at para. 94. 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.

[26] The trial judge's error was compounded when she addressed the issue for a second time, in the passage reproduced above, in para. 18 of these reasons. The defence did not suggest that the complainant had a financial motive to falsely accuse the appellant, as the trial judge suggested. When defence counsel submitted that a witness may fabricate for "many reasons", a financial motive was offered as a generic example. Defence counsel did not advance a specific allegation of a financial motive in this case. This explains why the suggestion was not put to the complainant in cross-examination.

[27] Moreover, the trial judge's reliance on the fact that the complainant was contacted by the police (instead of the opposite) was misplaced. The Crown elicited this information at the end of the complainant's examination-in-chief. The issue was not pursued by defence counsel, for good reason. The evidence was prejudicial, suggesting that "where there's smoke there's fire". It should not have been admitted. Moreover, it does not necessarily follow that being contacted by the police is inconsistent with a motive to fabricate. It certainly does not constitute evidence capable of establishing a lack of motive.

[28] In conclusion, I am satisfied that the trial judge's findings on the issue of motive formed an important part of her credibility assessment of the complainant. She used her finding of a proved absence of motive to enhance the credibility of the complainant, which was a central issue at trial. This amounted to a miscarriage of justice warranting a new trial.

(2) Uneven Scrutiny

[29] Given that there must be a new trial, it is not necessary to address the uneven scrutiny issue in any detail.

[30] As Mr. Burgess acknowledged in his oral submissions, this is a difficult ground upon which to succeed. This steep incline is reflected in numerous decisions from this court: see e.g., R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 18-20; R. v. Chanmany, 2016 ONCA 576, 352 O.A.C. 121, at paras. 26-28, leave to appeal refused, [2017] S.C.C.A. No. 88; R. v. Kiss, 2018 ONCA 184, at para. 83; R. v. Polanco, 2018 ONCA 444, at para. 33, leave to appeal refused, [2018] S.C.C.A. No. 271; and R. v. D.E.S., 2018 ONCA 1046, at paras. 15-16. The appellant must be able to point to something in the reasons or the record that suggests that differential standards of scrutiny were applied. This ground of appeal is not meant to be a vehicle for re-trying the credibility findings in an appellate court.

[31] I accept that the trial judge may have found more aspects of the appellant's testimony problematic when compared with the complainant's account. However, this ground of appeal does not invite a quantitative analysis. Instead, this court will review the reasons as a whole to determine whether the trial judge approached the evidence with an open mind and dealt with conflicting accounts or inconsistencies in the evidence of both parties fairly. Standing alone, being disbelieved does not translate into uneven scrutiny.

[32] The trial judge seized on numerous factors in the evidence of both witnesses, relating to events that happened 15 years earlier. An important factor in this analysis was that the complainant was a child at that time of the alleged incident. As the trial judge observed, as an adult witness testifying about childhood events, the complainant's credibility should be assessed according to criteria applicable to adult witnesses, but "the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events": see R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134. The trial judge's reasons reflect this differential approach to the evidence of the complainant and the appellant. This factor goes a long way in explaining her assessments of their credibility.

[33] I would dismiss this ground of appeal.

D. Conclusion

[34] As mentioned at the beginning of these reasons, the appeal was allowed at the end of the oral hearing. The conviction on the sexual interference count was set aside, the conditional stay on the sexual assault count was lifted, and a new trial was ordered on both counts.

Released: May 7, 2019

"Gary Trotter J.A."

"I agree. L.B. Roberts J.A."

"I agree. David M. Paciocco J.A."