Court File and Parties

COURT FILE NO.: CR-19-30000046-00AP DATE: 20200226 SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N:

HER MAJESTY THE QUEEN, Respondent

- and -

MAXIMILIANO TORRES-ANGULO, Appellant

BEFORE: Copeland J.

HEARD: February 25, 2020

COUNSEL: Mr. M. Halfyard, for the Appellant Mr. P. Alexander, for the Respondent

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

Endorsement

[1] The Appellant appeals from conviction on one count of sexual assault. The charge involved an allegation that the Appellant groped the complainant without her consent. The Appellant raises three grounds of appeal. I will address each ground in turn.

[2] First, the Appellant argues that the trial judge erred in finding that the Appellant’s evidence was not believable on the basis that the complainant had no motive to fabricate.

[3] Decisions of the Court of Appeal are clear that motive to fabricate or absence of a motive to fabricate is an area where trial judges must be cautious. Where a defendant asserts that a complainant or other witness has a motive to fabricate evidence, a trial judge may properly assess whether the asserted motive to fabricate makes sense or not, as part of the assessment of the credibility of the evidence. This assessment must be done in the context of the evidence as a whole. However, trial judges must bear in mind that the defence does not bear any burden to show why a witness may not be telling the truth. It can happen that a witness has a motive to fabricate, but the defence is unable to expose it. This is sometimes phrased as the difference between absence of evidence of a motive to fabricate, and evidence of the absence of a motive to fabricate. A trial judge must not reason that because there is not evidence of a motive to fabricate, a complainant or witness must be telling the truth. Some of the more recent Court of Appeal cases addressing these issues include: R. v. Bartholomew, 2019 ONCA 377 at paras. 19-25; R. v. M.S., 2019 ONCA 869; and most recently R. v. S.H., 2020 ONCA 34 at para. 11. I note that these more recent cases were decided after the trial in this case, but the principles are well-established, in cases such as R. v. John, 2017 ONCA 622 at paras. 93-95 (which was cited by the trial judge in this case), and R. v. L.L., 2009 ONCA 413.

[4] I am not persuaded that the trial judge made the error the Appellant alleges. The central paragraphs of the reasons for judgment that address the motive to fabricate issue are paragraphs 28 and 29. It is important to recall that a central prong of the defence at trial in this case was that the complainant fabricated the allegation of sexual assault because she was angry that the Appellant refused to loan her money (see defence submissions at trial, transcript of February 5, 2019, at pp. 15, 18, 19, 29-30). I find that in this portion of his reasons for judgment, what the trial judge is doing is rejecting the motive to fabricate that the defence had alleged at trial on the basis that, in the words of the trial judge, “it strains credulity”. There is no error in assessing an alleged motive to fabricate, and based on the evidence at trial, rejecting it.

[5] The trial judge was clearly alive to the distinction between the absence of evidence of a motive to fabricate (on one hand), and evidence of absence of a motive to fabricate (on the other). He specifically cautioned himself as follows at para. 29: “It is sometimes dangerous to ask why a complainant might make a false allegation to police. It is well recognized that absence of evidence of any motive to fabricate does not make an allegation more likely true.” He then cited John, from the Court of Appeal, which addresses exactly the issue the Appellant raises on appeal. Thus, in my view, the trial judge’s reasons convey that he understood the applicable law.

[6] Nor do the reasons show that the trial judge in any way misapplied the law on this issue. In the middle of para. 29, the trial judge states: “But, in this case I find that there is in fact evidence of a lack of motive to fabricate.” In my view, when this sentence is read in the context of the balance of para. 29, it is clear that the trial judge is rejecting the specific motive to fabricate put forward by the Appellant’s counsel at trial (not counsel on appeal). The trial judge found, based on the evidence before him, that this motive to fabricate did not make sense, in light of the past history of loans from the Appellant to the complainant. There was evidence that in the past, when the Appellant had money, he would lend it to the complainant, and when he did not, he would not. In particular, I note the last sentence of paragraphs 29: “Given the evidence as to the history of the relationship between the two, it strains credulity that SV would take such an extreme step as fabricating an allegation like this one over a routine refusal on the accused’s part to lend her money.”

[7] It is also clear, reading the trial judge’s reasons as a whole, that in rejecting the motive to fabricate put forward by the Appellant, the trial judge did not reason that absent an identified motive to fabricate on the part of the complainant, she must be telling the truth. Rather, after discussing motive to fabricate at paras. 28 and 29 of his reasons, the trial judge then went on to explain why he found the complainant’s evidence to be very credible (at paras. 30-32).

[8] Second, the Appellant argues that the trial judge applied different standards of scrutiny to the evidence of the complainant and that of the Appellant.

[9] The Ontario Court of Appeal has repeatedly observed that uneven scrutiny of evidence is a difficult ground of appeal to argue successfully. This is because credibility findings of a trial judge are owed deference on appeal, and very often this ground of appeal will amount to an attempt to reassess the credibility findings made by the trial judge: R. v. Howe at paras. 47, and 59 (ONCA); R. v. Owen at para. 3 (ONCA); R. v. Gravesande, 2015 ONCA 774 at paras. 18-19.

[10] To prevail on an argument based on uneven scrutiny, an appellant must do more than show that a trial judge could have reached different credibility findings, or that the trial judge failed to say something that they could have said in assessing credibility of different versions of events in Crown and defence evidence. To prevail on an argument based on uneven scrutiny, an appellant must show, based on something in the trial judge’s reasons or elsewhere in the record, that the trial judge applied different standards in assessing the Crown evidence and the defence evidence: Howe at para. 59; Owen at para. 3; Gravesande at para. 19.

[11] I am not persuaded that the trial judge applied different standards of scrutiny to the evidence. The trial judge explained why, with reference to the evidence, he did not believe the Appellant’s evidence, nor was he left in a reasonable doubt by it. He also explained why he found the complainant’s evidence sufficiently compelling to prove the allegation beyond a reasonable doubt. Neither the trial judge’s reasons, nor the full trial record support that he applied different standards of scrutiny to the Appellant’s and the complainant’s evidence. In my view the Appellant is seeking to re-litigate credibility findings that were within the purview of the trial judge to make.

[12] Third, the Appellant argues that in his reasons for judgment, the trial judge erred by accepting the complainant’s evidence and rejecting the Appellant’s evidence based on inappropriate behavioural assumptions. This argument is based on the Court of Appeal decisions in R. v. Cepic, 2019 ONCA 541 at paras. 13-14, and R. v. J.L., 2018 ONCA 756 at paras. 46-47. In particular, the Appellant argues that implicit in the trial judge’s credibility analysis is the reasoning that a young woman would not engage in consensual sexual activity in order to get the Appellant to loan her money.

[13] I disagree with the Appellant that the trial judge made this error. The error that cases such as Cepic caution against is making stereotypical generalized assumptions about a person’s behaviour, either the complainant or the defendant, which are based on beliefs about how people in general would behave, rather than being based on the evidence in the record about the particular people involved. Cases such as Cepic do not prohibit a trial judge from considering the past behaviours of the parties before the court in specific relevant circumstances, and in evidence before the trial judge, and using that evidence to assess whether interpretations of the evidence argued at trial are consistent or not consistent with the evidence about the particular person’s past behaviour in similar or related circumstances: Cepic at paras. 20-22.

[14] In this case, what the trial judge did was to draw on the evidence about the past history between the complainant and the Appellant in relation to loans. At paras. 28 and 29 of his reasons, the trial judge reasoned that he did not accept the Appellant’s version of events because on the evidence at trial, the complainant had borrowed money from the Appellant before without encountering resistance. In that context, it did not make sense that the complainant would immediately resort to touching the Appellant sexually to try and borrow money, when she had borrowed money from him in the past just by asking. The language used by the trial judge in paras. 28 and 29 is clearly tied to the evidence before him about the previous times when the complainant had borrowed money from the Appellant, not based on generalizations about human behaviour. The factual basis for the trial judge’s reasoning on this issue is also addressed in paras. 4, 5, 6, 13 and 20 of the reasons for judgment. In my view the trial judge’s reasoning on this issue is squarely based on the evidence before him, and not based on generalized assumptions about how people should or do behave.

[15] For these reasons, I am not persuaded that the trial judge committed the errors alleged by the Appellant. The appeal is dismissed.

[16] I thank counsel for their helpful submissions.

Justice J. Copeland Released: February 26, 2020