Court File and Parties
COURT FILE NO.: 22-30000010-00AP
DATE: 20221014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent
– and –
SALEH ABUBAKAR MOMLA Appellant
COUNSEL:
Joanne Bruno, for the Respondent
Mark Halfyard and Chloe Boubalos, for the Appellant
HEARD: September 21, 2022
JUSTICE S. NAKATSURU
Reasons for Judgment
[1] The appellant, a religious teacher, was convicted of sexual assault and sexual interference on a student of his, a 10-year-old boy, Z.M. Credibility was a key issue at trial. The trial judge dealt with inconsistencies between Z.M.’s video recorded statement to the police and his testimony at trial, found Z.M.’s allegations to be well corroborated, accepted Z.M.’s testimony, and rejected the appellant’s denials, finding that they did not raise a reasonable doubt. In short, the trial judge resolved the key issue entirely in favour of the prosecution.
[2] On appeal of his conviction, the appellant argues that the trial judge made three errors: (a) the trial judge failed to address inconsistencies and a material implausibility regarding how the sexual assault occurred, which could have raised a reasonable doubt; (b) the trial judge relied upon a presumptively inadmissible prior consistent statement to improperly bolster the complainant’s evidence; and (c) the trial judge conflated the absence of a motive to fabricate with positive proof that the complainant had no motive to fabricate and therefore concluded he was more likely to be telling the truth.
A. Inadequate Reasons
[3] With respect to the first ground of appeal, the appellant submits that the trial judge, in his reasons, failed to resolve inconsistencies and an implausibility in Z.M.’s evidence.
[4] In my opinion, the trial judge adequately addressed the inconsistencies in Z.M.’s evidence. He was aware that there were significant inconsistencies between Z.M.’s testimony and the video statement he gave to the police. This is evident from the addresses of counsel, an exchange the judge had with counsel during submissions, and in his reasons for judgment. In accepting Z.M.’s evidence, the trial judge referred to Z.M.’s young age and the circumstances confronting him at the time.
[5] The implausibility relates to Z.M.’s testimony that he was wearing a jubbah, pants, and underwear when the sexual assault occurred. The jubbah reached his ankles. It was made from very tough, non-stretchy, and tight fabric. He testified that the sexual assault occurred while he was in the backseat of the car. The appellant was alleged to have put his hand up the side of Z.M.’s right leg—from the bottom of his pants all the way to his penis. Z.M. was in a sitting position, wearing his jubbah, which was over his lap, just past his knees, and covering his penis. At trial, the defence submitted that given the tightness of the clothing, the mechanics of this action were improbable, if not impossible. The appellant submits that the trial judge erred by saying nothing about this submission and not addressing the evidence in his reasons.
[6] While defence counsel’s argument on the implausibility of the mechanics surrounding how the sexual assault could have occurred was not specifically addressed, the trial judge gave clear and cogent reasons why he believed Z.M. This included his finding that the video statement to the police admitted under s. 715.1 of the Criminal Code was “impressive” and “remarkably detailed and vivid”. He found Z.M.’s testimony thoughtful and reliable. Finally—clearly important to the trial judge—was the fact the surveillance videos from the school and the underground garage of the appellant’s apartment building substantially corroborated Z.M.’s narrative of how he was taken from school that day by the appellant without notification of Z.M.’s parents or the principal of the school and parked for about an hour in the garage, together in the back seat of the car where Z.M. testified that the sexual assault took place.
[7] Moreover, defence counsel’s argument regarding implausibility was not particularly compelling. Z.M. gave differing versions of how the sexual assault occurred including one in which his pants were taken down; a scenario where the tightness of his clothing would be immaterial to the alleged implausibility of the sexual assault happening. As well, Z.M.’s evidence was that the jubbah and his pants were both “loose”. The pants were not tight at the ankles. While defence counsel argued the contrary, the totality of the evidence led on this point does not lead to the impossibility, let alone the improbability, of a person reaching up the pants to touch Z.M.’s penis. The facts of this case are very different from those found in R. v. Khan, 2017 ONSC 7109, at paras. 64-72, 74, relied upon by the appellant.
[8] Deference should be afforded to the trial judge’s finding regarding Z.M.’s credibility. The reasons, in the context of the trial proceedings and the evidence, were adequate. It is not necessary for the trial judge to specifically deal with every inconsistency or submission put forward by the defence. Consequently, the first ground of appeal is dismissed.
B. Use of Prior Consistent Statement
[9] Regarding the second ground of appeal, the trial judge did not use a prior consistent statement to improperly bolster Z.M.’s credibility. After citing R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, the trial judge referred to the fact that within hours of the abuse occurring, Z.M. made a tearful disclosure to his mother of the abuse perpetrated by the appellant as a circumstance to consider when assessing the credibility of the complainant. The timing and nature of the disclosure was treated as circumstantial evidence relevant to credibility: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 49. In other words, the trial judge did not use the statement for the prohibited inference that consistency of the prior statement enhanced credibility; nor did the trial judge infer that simply making a prior consistent statement corroborated the in-court testimony. This is clear from the reasons for judgment as well as from the exchange between the court and counsel at the time when the mother’s testimony regarding this disclosure was admitted.
C. Absence of Motive to Fabricate
[10] Finally, there is no merit to the third ground of appeal.
[11] The distinction between the absence of a proven motive to lie and a proven absence of motive to lie is significant. The defence does not bear a burden to prove that a witness is not telling the truth or has a motive to fabricate. A trial judge must not reason that because there is no evidence of a motive to fabricate, there is a proven absence of such a motive. It is only where an absence of motive is proven that the Crown has a “powerful platform” to assert that the complainant was telling the truth: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 19-25; R. v. M.S., 2019 ONCA 869, at paras. 12-16.
[12] In this case, the trial judge did not err when dealing with the evidence relevant to motive to fabricate. Read in context, although the trial judge “conclude[d] here no motive to fabricate these allegations existed”, he was merely responding to the cross-examination by defence counsel on a purported motive of animus on Z.M.’s part that he was angry because the appellant disclosed to Z.M.’s mother his bad behavior at school earlier in the week for which he was severely punished at home. Z.M., as well as his mother, denied this ever took place. In his reasons, the trial judge referred to Z.M.’s “genuine” puzzlement about this allegation and how Z.M. praised the appellant as being one of the best teachers he ever had. The only other part of the judgement where motive is discussed is in the rejection of the appellant’s testimony of this potential animus by Z.M. due to this alleged incident. The trial judge rejected his testimony noting it was contradicted by the testimony of the other witnesses.
[13] While it was the Crown in oral submissions who first raised the issue of Z.M.’s lack of a motive to fabricate the allegations when discussing his credibility, this must be seen in the context of Z.M.’s cross-examination. The following suggestions were put to Z.M by defence counsel in cross-examination:
Q. And I believe that what you were really mad at him about was getting you in trouble with your mom?
A. I wasn’t mad at him, at all.
Q. He was an easy teacher. Right?
A. He was or he wasn’t?
Q. Was.
A. He was an easy-yeah, he was an easy teacher.
Q. But he stopped being an easy teacher when he talked to your mom?
Q. And I think what you were heart-broken about was that your easy teacher got you in trouble?
A. Heart-broken, no.
Q. And you made this story up so that you would get switched out of his class?
A. Again, no.
Q. When you came back to school on Tuesday, I’m going to suggest that you were trying to get Zaid to go to the principal with you.
A. No.
Q. And I believe you wanted to go to the principal with Zaid because you wanted to get Saleh in trouble.
A. No.
[14] Given this explicit attack by the defence on Z.M.’s motive to fabricate the allegations, it is understandable that the Crown responded to the issue in her submissions. Equally, the trial judge was required to deal with it in his reasons for judgment.
[15] This case is similar to R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343. Likewise in Ignacio, at para. 22, the trial judge stated that the complainant had “no motive to falsely accuse” the appellant because they had a good prior relationship. However, Pepall J.A. did not interpret this statement by the trial judge as a finding of a proven absence of motive to fabricate (at para. 35-36):
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.
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. [Emphasis in original.]
[16] Given the appellant’s attack on the potential animus and Z.M.’s motive to fabricate, the reasons of the trial judge read in context on this point were effectively a finding of an absence of evidence of any motive to fabricate. The absence of evidence was not improperly used as a makeweight in support of Z.M.’s credibility. In this way, this case is distinguishable from the case R. v. S.S., 2021 ONCA 552, 406 C.C.C. (3d) 314, at para. 38, where it was held that a trial judge erred by improperly bolstering the complainant’s credibility based on there being no evidence of a motive to fabricate since, in that case, the accused had not raised the issue of a motive to fabricate. Here, the appellant did.
[17] For these reasons, the appeal is dismissed.
NAKATSURU J.
Released: October 14, 2022.
COURT FILE NO.: 22-30000010-00AP
DATE: 20221014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent
– and –
SALEH ABUBAKAR MOMLA Appellant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: October 14, 2022