COURT OF APPEAL FOR ONTARIO

CITATION: R. v. I.S., 2025 ONCA 76[^1]

DATE: 20250130

DOCKET: COA-23-CR-0179

Huscroft, Dawe and Pomerance JJ.A.

BETWEEN

His Majesty the King

Respondent

and

I.S.

Appellant

Counsel:

Myles Anevich, for the appellant

Étienne Lacombe, for the respondent

Heard: January 28, 2025

On appeal from the conviction entered on March 25, 2022, by Justice Alexander D. Kurke of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1] The appellant was convicted of sexual interference, sexual exploitation, sexual assault, and uttering a threat following a jury trial. He argues that the trial judge made three errors in his charge to the jury:

1. The trial judge failed to provide a Villaroman instruction;
2. The trial judge failed to provide an instruction on a motive to fabricate; and
3. The trial judge failed to instruct the jury that the accused did not have to explain the complainant’s motives.

[2] We dismissed the appeal without calling on the Crown. These are our reasons.

1. No Villaroman instruction was required

[3] The appellant argues that, in accordance with *R. v. Villaroman*, 2016 SCC 33, [2016] 1 S.C.R. 1000, the trial judge was required to instruct the jury that they had to consider and reject all reasonable inferences alternative to guilt arising out of several greeting cards and handwritten notes the appellant sent to the complainant. The short answer to this submission is that Villaroman applies only in the context of wholly or substantially circumstantial cases. It does not apply to individual pieces of circumstantial evidence proffered in the context of what was otherwise a case of direct evidence. The case against the appellant was based largely on the testimony of the complainant. Not surprisingly, trial counsel did not request a Villaroman instruction. It would have been improper to have provided one. The trial judge explained the meaning of circumstantial evidence along with the Crown’s and the defence’s interpretations of the cards and notes, and instructed the jury that it was for them to determine their meaning. Nothing more was required.

2. An instruction on motive to fabricate was not required

[4] The appellant argues that the trial judge wrongly declined trial counsel’s request for an instruction that the appellant had no obligation to explain why the complainant made her accusation. This argument is based on the appellant’s evidence that he had an adversarial relationship with the complainant’s boyfriend. The appellant says that although there was no apparent motive to fabricate, the evidence fell short of proving an absence of motive.

[5] There was no need for such an instruction. Neither counsel referenced a motive to fabricate in their submissions to the jury. Moreover, neither trial counsel nor the Crown suggested that an such an instruction was necessary. The trial judge left it to the jury to consider whether there was any reason why the complainant would not be telling the truth. Nothing more was required.

3. It was not necessary to instruct the jury that the appellant did not have to explain why the complainant made her accusations

[6] Trial counsel requested an instruction that accused persons are not required to explain why someone might make a false accusation. The trial judge refused. The appellant argues that, in effect, this resulted in a requirement that he prove a motive to fabricate and so reversed the burden of proof.

[7] There is no merit to this submission. The trial judge clearly instructed the jury that the appellant was not obligated to prove anything and reinforced the Crown’s burden to prove the charges beyond a reasonable doubt. The burden of proof was not reversed.

[8] The appeal is dismissed.

"Grant Huscroft J.A."

"J. Dawe J.A."

"R. Pomerance J.A."

[^1]: This appeal is subject to publication bans pursuant to s. 486.4 and s. 486.5 of the *Criminal Code*, R.S.C. 1985, c. C-46.