Court File and Parties

COURT FILE NO.: CR-17-00009263-00AP DATE: 20230310 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – ALI TAHERI Appellant

Counsel: Moheb Tewfik, for the Respondent Alexander Ostroff, for the Appellant

HEARD: March 2, 2023

REASONS FOR DECISION

On appeal from the decision of The Hon. Madam Justice M. Henschel Dated July 26, 2019

CHRISTIE J.

Overview

[1] On July 26, 2019, the Appellant, Ali Taheri, was convicted of sexual assault and sexual exploitation in relation to each of two complainants. On December 9, 2019, the Appellant was sentenced to 90 days, consecutive, on the sexual exploitation counts. The sexual assault counts were stayed as per Kienapple.

[2] The Appellant was a personal support worker (“PSW”) at the Acute Assessment Unit of Markham-Stouffville Hospital. At the relevant time, the complainant, J.C., was a 17-year-old high school co-op student who worked in the unit from February to May 2017. The trial judge found that, on May 31, 2017, the Appellant hugged J.C., kissed her neck and cheek, and touched her buttocks in a sexual manner for a sexual purpose, without her consent. At the relevant time, the complainant, E.H., was a 16-year-old volunteer who worked in the unit from August 2016 until June 2017. The trial judge found that, on June 14, 2017, the Appellant hugged and kissed E.H. and touched her buttocks with both hands, in a sexual manner for a sexual purpose, without her consent. The trial judge concluded that the Appellant was in a position of trust or authority over both J.C. and E.H. and that the Appellant was in a relationship with J.C. and E.H. that was exploitative of them.

[3] The main focus of this trial was assessing credibility. The witnesses at trial included the two complainants and the Appellant. It should also be noted that the trials in relation to these complainants were heard together after the Crown made a cross-count similar fact application, which was conceded by the defence.

[4] This is an appeal from conviction only. The Appellant argued that the trial judge erred in several ways as follows:

a. The trial judge erred by relying on no motive to fabricate; b. The trial judge improperly relied on J.C.’s age to bolster her credibility; c. The trial judge erred by finding the Appellant tailored his evidence; d. The trial judge erred by finding the Appellant’s evidence was a fabrication; and e. The trial judge materially misapprehended evidence in assessing credibility.

Analysis

Standard of Review

[5] Section 686 of the Criminal Code, R.S.C., 1985, c. C-46, which is incorporated into s. 822 for summary conviction appeals, allows an appeal against conviction after trial for three reasons:

a. Unreasonable verdict – The Appellant must demonstrate that no properly instructed jury, acting judicially, could reasonably have entered the verdict based on the evidence. The appellate court will, to a limited extent, re-weigh the evidence to ensure the outcome was reasonable, keeping in mind that the trial court had the advantage of seeing and hearing the evidence. R. v. Yebes, , [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180. When a verdict is reached by a judge sitting alone, there are two bases upon which a reviewing court can find the verdict is unreasonable: (1) where the verdict cannot be supported by the evidence; or (2) where the verdict is vitiated by illogical or irrational reasoning. While the unreasonableness of a verdict is a question of law, the assessment of credibility is a question of fact. A trial judge’s assessment of the credibility of witnesses may be rejected only where it cannot be supported on any reasonable view of the evidence. R. v. Brunelle, 2022 SCC 5. b. Error of law – The standard of review for a question of law is correctness. The standard of review for factual findings is palpable and overriding error, showing considerable deference to the trial judge. R. v. Babos, 2014, SCC 16, [2014] 1 S.C.R. 309. An argument that the trial judge misapprehended the evidence is analyzed by looking at whether the trial judge was mistaken about the substance of material parts of the evidence and whether the errors played an essential part in the reasoning process. R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. There is a presumption that a trial judge knows the law. R. v. Morrissey (1995), , 22 O.R. (3d) 514 at pp. 14-5. c. Miscarriage of justice – A miscarriage of justice will occur where the trial was unfair, or something has occurred that would affect public confidence in the administration of justice. R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828.

[6] A difference of opinion with the trial judge over evidence or factual findings is not enough to justify appellate intervention. An appeal is not meant to be a re-litigation of issues determined at trial. Further, a trial judge’s reasons for judgment should be read as a whole, not in a piecemeal fashion. See R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at para. 15.

[7] Even if this court finds that the trial judge made an error, it must still consider the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The proviso may be applied where the outcome of the trial, irrespective of the error, would necessarily have been the same, for example where the error was minor resulting in no impact, or where the error is serious but the evidence against the accused was overwhelming.

The trial judge erred by relying on motive to fabricate to enhance credibility

[8] In closing submissions at trial, the Crown, while acknowledging that there was no obligation on the accused to establish a motive to fabricate, argued that neither of the complainants had a motive to fabricate in this case, given that they had a good relationship with the Appellant, and that this was a factor for the trial judge to consider. The defence did not address this issue at all in closing submissions.

[9] In her reasons for judgment, the trial judge stated as follows:

Although Ms. [C] was a somewhat tentative witness and appeared to be somewhat nervous when testifying, I found Ms. [C] to be a very credible and reliable witness. Her evidence was internally consistent and was not undermined by any material inconsistencies. The presence of prior inconsistent statements can be an important factor that may detract from the credibility of a witness. In this case the defence fairly conceded that there were no material prior inconsistent statements established in respect of Ms. [C]’s evidence and that her evidence was not undermined, changed, or shaken in cross-examination. While I recognize that an accused has no obligation to provide an explanation of why someone might allege that a sexual assault has occurred and that an accused need not establish a motive to fabricate – in this case there existed no motive to fabricate or any animosity that might undermine Ms. [C]’s credibility. She had a good working relationship with Mr. Taheri. Moreover her explanation that she was concerned that her supervisors might think she was not a good student was compelling and in my view undermined the suggestion that she fabricated the events.

Ms. [H] was an extremely articulate, intelligent and careful witness. Her evidence was detailed, straight-forward and candid. Her evidence was plausible and included a clear description of the date, time and place that the events occurred and of the events themselves. Her description included significant details about what was said and done by both herself and Mr. Taheri. It did not contain any illogical aspects or unexplained gaps. Like Ms. [C] I found Ms. [H] to be very credible and reliable. Like Ms. [C] her evidence was internally consistent and was not undermined by any material inconsistencies. As with Ms. [C]'s evidence the defence fairly conceded that there was no material prior inconsistent statements established in respect of her evidence and her evidence was not changed or shaken in cross-examination.

With respect to Ms. [H] there was no evidence of any animosity or a motive to fabricate. Previously she had a good relationship with Mr. Taheri.

[10] The Court of Appeal has commented on the absence of evidence of motive to fabricate and a proven lack of motive to fabricate fairly frequently over the last few years.

[11] In R. v. Mirzadengan, 2019 ONCA 864, the Appellant argued that the trial judge improperly relied on the complainant’s supposed absence of motive to lie in support of her credibility. It should be noted that defence counsel provided a number of possible reasons why the complainant might have fabricated her evidence. The court concluded that the trial judge had not erred and stated:

[14] Third, and crucially, there is an important distinction between the respective trial judges’ treatment of the absence of motive to lie in Bartholomew and in this case. In Bartholomew, the trial judge erred by transforming “the absence of evidence of a motive to fabricate into a proven lack of motive” and then using this finding to “enhance the credibility of the complainant”; at paras. 19 and 28. In the present appeal, the trial judge stated at the outset that there was no apparent motive to fabricate. His finding was more tentative than that of the trial judge in Bartholomew. Moreover, his reasons make it clear that he did not make the impermissible leap between finding an absence of apparent motive and concluding the complainant must be telling the truth. Unlike the trial judge in Bartholomew, he did not use this finding to “enhance” his assessment of the complainant’s credibility. Although it supported his finding, the trial judge reasonably could have concluded that the complainant was credible on the first two factors alone – the corroborating testimony regarding her degree of intoxication and the ripped Halloween costume. This is particularly so given the trial judge’s strong rejection of the appellant’s testimony on these two issues…

[12] In R. v. S.H., 2020 ONCA 34, one of the arguments made was that the trial judge had improperly failed to issue a corrective instruction in response to improper and inflammatory closing arguments from the Crown, which rendered the trial unfair. The Court stated:

[11] Moreover, it is inadmissible for a trial Crown, without proving affirmatively that a complainant did not have motive to mislead, to argue in substance that the absence of a known motive to mislead adds to the weight of her testimony: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23. Where this occurs, the trial judge must direct the jury that this reasoning is not permissible: R. v. M.B., 2011 ONCA 76, 267 C.C.C. (3d) 72, at paras. 30-32. Reasoning in this way undermines the presumption of innocence by reversing the burden of proof and fails to recognize that motives to mislead can be hidden: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 312, at paras. 16, 44.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.

[13] In R. v. W.R., 2020 ONCA 813, the Appellant appealed against his convictions for sexual assault and assault, relating to his stepson and son. In criticizing the trial judge’s handling of the motive to fabricate issue, the court stated:

[18] I begin this issue by noting that there is a difference in law between an absence of evidence of a motive to fabricate (that is, no evidence either way) and a proven absence of a motive to fabricate (that is evidence that establishes that no motive existed). The former is an element that may be considered in assessing the credibility of a witness, but it is only one element. On the other hand, the latter may be a compelling reason to conclude that the witness is telling the truth. This distinction is set out in R. v. L. (L.), 2009 ONCA 413, 96 O.R. (3d) 412, where Simmons J.A. said, at para. 44:

When dealing with the issue of a complainant's motive to fabricate, it is important to recognize that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate.

[21] I would add, in considering this issue, the corollary point which is that the fact that there may be a motive to fabricate does not mean that a witness is not telling the truth. As this court said in R. v. Batte, (2000) , 49 O.R. (3d) 321 (C.A.), 145 C.C.C. (3d) 449, at para. 121: "[t]he presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility."

[22] Thus, while the issue of motive to fabricate could have been better explained, I do not find that the trial judge’s handling of this issue amounts to a palpable and overriding error. Of importance is the fact that the issue of motive did not drive the trial judge’s credibility findings as they relate to either AB or CD. Equally important is the fact that, at no point, did the trial judge suggest that her views on the motive issue led her to conclude that AB and CD must be telling the truth.

[14] In R. v. Ignacio, 2021 ONCA 69, leave to appeal refused, [2021] S.C.C.A. No. 127, the defence took the position at trial that the complainant had a motive to fabricate because she feared that she had become pregnant from her sexual encounter with the accused and needed a way to explain the pregnancy to her parents in order to absolve herself of any responsibility. The trial judge rejected this submission, found that the complainant did not fear becoming pregnant and had a good relationship with the appellant, and concluded that she had no motive to fabricate. On appeal, the accused argued that the trial judge had erred in finding that the complainant had no motive to fabricate, and that this erroneous finding influenced his decision to accept the evidence of the complainant and reject the evidence of the accused. The court found that in responding to the defence submission that the complainant had a motive to fabricate, the trial judge had not made a finding of no motive to fabricate, but had simply determined that there was no evidence of a motive to fabricate. The court then found, as a matter of law, that the trial judge was entitled to consider the absence of evidence of motive to fabricate as a factor in assessing the credibility of the complainant. The court stated the following:

[29] “The distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate is not easily digestible”: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 97, per Watt J.A. As Watt J.A. explained in John, at para. 93:

The former is not the equivalent of the latter, nor is the latter the same as the former: R. v. L. (L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another way, it does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R. v B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: R. v. L. (L.), at para. 44. [Emphasis added.]

[31] The first part of the appellant’s argument is that the trial judge made a positive finding that the complainant had no motive to fabricate when the evidence did not permit him to do so. While the cases leave open the possibility that the Crown can prove that a complainant had no motive to fabricate, they set a high bar for proving no motive to fabricate. This is because motives can remain hidden or there may be no motive at all: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 22.

[32] If the Crown has proven that the complainant had no motive to fabricate, the Crown has “a powerful platform to assert that the complainant must be telling the truth”: Bartholomew, at para. 21. However, in most cases, the trier of fact will be faced instead with an absence of evidence of any motive to fabricate on the part of the complainant.

[33] In this case, had the trial judge found that the Crown had proven no motive to fabricate, such a finding would have been in error. The only evidence upon which the trial judge could make this finding was the evidence that the complainant and the appellant had a prior good relationship. Evidence of a good relationship between the complainant and the accused, standing alone, is insufficient to establish that the complainant had no motive to fabricate: Bartholomew, at para. 25; and L.L., at para. 45.

[34] However, I am not persuaded that the trial judge found that the Crown had proven no motive to fabricate. If that had been the case, as discussed, the Crown would have had “a powerful platform” to assert that the complainant was telling the truth. One would expect such a finding to play a much more prominent role in the trial judge’s analysis of credibility than it did. Instead, it simply amounted to an “observation” and “a factor to consider”, to use the trial judge’s words.

[35] 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.

[36] 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.

[58] In other words, even though on its face, the trial judge appeared to have made a positive finding that the Crown had proven the absence of a motive to fabricate, this did not warrant allowing the appeal because of how the trial judge treated this conclusion. He did not treat it as dispositive, but only as a factor to consider.

[59] In this case, the trial judge’s treatment of the motive issue was consistent with the cases discussed. He specifically cautioned himself against placing any obligation on the accused to demonstrate why the complainant would fabricate her evidence. Nothing suggests that he leapt to the conclusion that the complainant must be telling the truth. He considered the complainant’s credibility independent from his conclusion that there was an absence of evidence of a motive to fabricate. As mentioned, the issue of motive to fabricate had been raised by the defence and the trial judge felt obliged to address it. Lastly, he did not place excessive weight on the absence of evidence of motive. Indeed, the trial judge identified the issue as an observation and acknowledged that it was just one factor to consider. As in W.R., the trial judge’s comment about motive did not “drive the trial judge’s credibility findings”, nor did he suggest that his findings on motive led him to conclude that the complainant must be telling the truth.

In Ignacio, the issue of motive to fabricate was raised by the defence and, therefore, had to be addressed by the trial judge, whereas in this case, the issue was not raised by the defence. Consequently, in Ignacio, the court did not have to consider the risk of the onus being reversed in situations where the issue is not raised by the defence.

[15] In R. v. S.S.S., 2021 ONCA 552, 406 C.C.C. (3d) 314, the Court found that the trial judge erred in fact and law by finding that the complainant and her mother had a motive not to fabricate the allegations, and by using that finding to enhance the credibility of the complainant. The trial judge found that not only was there no evidence of motive to fabricate, but that it was contrary to the interests of the complainant and her mother to come forward. The trial judge used that finding, the fact that they did come forward contrary to their interests, as a “make-weight” to enhance the complainant’s credibility. The Court found this to be an error and stated in part as follows:

[26] … First, there was no evidence to support the trial judge’s finding regarding the complainant herself. The complainant was not asked any questions about whether she was concerned that her disclosure would jeopardize her relationship with her friend, P. There was no basis for the trial judge to infer such a concern from her evidence. The inference amounted to transferring the concerns of the complainant’s mother onto the complainant, a young child.

[27] Second, the trial judge relied on the mother’s desire to maintain a good relationship with the appellant’s family to bolster the credibility of the complainant’s account. That was an error of law. The mother’s motive cannot and does not speak to the credibility of the complainant’s story.

[28] In the second paragraph, i.e., 165, the trial judge discussed the law on motive to fabricate. She began by stating that the existence or absence of a motive to fabricate is a relevant factor to be considered. That is an accurate statement where there is a proved presence or absence of motive to fabricate: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 21.

[29] The trial judge then recognized the distinction between no motive to fabricate and no evidence of motive to fabricate, and that it is impermissible to move from an apparent lack of motive to fabricate to the conclusion that the complainant is telling the truth. She also confirmed that an accused need not prove that a Crown witness had a motive to fabricate. While these statements of the law are true, it is unclear how they were applied by the trial judge.

[30] First, the trial judge did not find a lack of evidence of motive to fabricate. Rather, she found that there was no motive to fabricate, which she used as a make-weight for the complainant’s credibility. Finding no motive to fabricate amounted to a factual error that was not available on the evidence…

[31] Second, there was no issue of onus because the appellant did not rely on motive to fabricate. Although defence counsel initially labelled his argument about the complainant’s tendency to tell her mother untrue stories as motive to fabricate, he withdrew that label. He was not arguing motive to fabricate. His argument was simply that the complainant had a history of telling untruths rather than a motive to tell untruths. Therefore, the question of whether or not the accused had proven motive to fabricate was not an issue before the trial judge.

The Court in S.S.S. found that Ignacio was distinguishable from this case on the factual finding, as Ignacio dealt with the use that a court can make of a finding of no evidence of a motive to fabricate, rather than a finding of no motive to fabricate. The Court also distinguished Ignacio on the basis that, in that case, the issue of motive to fabricate was raised by the defence, and therefore had to be addressed by the trial judge, whereas in this case, the issue was not raised by the defence. Consequently, in Ignacio, the court did not have to consider the risk of the onus being reversed in situations where the issue is not raised by the defence. After distinguishing Ignacio, the court in S.S.S. stated:

[38] Not only is there no burden on an accused to prove a motive to fabricate, there is equally no burden on an accused to disprove that the complainant had no motive to fabricate. If the accused does not raise the issue, it is not open to the trial judge to find that there was no evidence of motive to fabricate and to use that finding, not disproved by the accused, as a make-weight in support of the complainant’s credibility.

[39] The trial judge’s error in finding no motive to fabricate and using that to bolster the credibility of the complainant was a significant one in the context of this case. Her acceptance of the complainant’s credibility was the main reason she rejected the appellant’s evidence and found that it did not raise a reasonable doubt. As any aspect of the credibility analysis could have been critical to the finding of proof beyond a reasonable doubt, the trial judge’s error requires a new trial.

[16] Finally, in R. v. B.T.D., 2022 ONCA 732, the Appellant argued that the trial judge erred in treating the complainant’s apparent lack of animus toward the Appellant as bolstering her credibility. The court recognized the “high level of appellate deference owed to the trial judge’s assessment of the evidence and her factual findings.” See para. 4. The Court found that this level was reached in this case and stated in part:

[82] As this court recently instructed in R. v. G.B., 2021 ONCA 675, at para. 18, “trial judges must approach an apparent lack of motive to fabricate with great caution when assessing the credibility of a complainant.” This caution arises out of the well-established distinction between an absence of evidence of a motive to fabricate on the one hand, and, on the other hand, a proven absence of a motive to fabricate. While the proven absence of motive might give affirmative weight to a witness’s testimony in a trial judge’s credibility assessment, the absence of any evidence of a motive to fabricate is a neutral factor and cannot be used to enhance a witness’s credibility. This is because the fact that a complainant has no apparent motive to fabricate does not mean that a complainant has no motive to fabricate. Reasoning from the apparent absence of a motive to fabricate undermines the presumption of innocence by reversing the burden of proof and fails to recognize that motives to mislead can be hidden. See: R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at paras. 4-5, R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 44; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23; R. v. S.H., 2020 ONCA 34, at para. 11; R. v. A.S., 2020 ONCA 229, at para. 59.

[83] In the present case, it was not argued nor did the trial judge find that there was a proven absence of a motive to fabricate on the part of the complainant. Rather, the trial judge appears to reference the lack of evidence of any apparent motive based on her observation that the complainant did not demonstrate “a hint of vengeance” toward the appellant in her testimony.

[84] By this, the trial judge fell into the reasoning error that the absence of any appearance of animus or motive equated to the absence of motive. She erred by using the absence of any evidence of motive as a makeweight in her assessment of the complainant’s credibility.

[85] This was not a trivial error. I do not accept the Crown’s argument that in instructing herself “not to place much emphasis” on the complainant’s demeanour, the trial judge properly restricted the weight she afforded to the complainant’s apparent lack of animus.

[17] In the case at bar, the Respondent argued that while the trial judge alluded to the lack of motive to fabricate in her reasons, the statements in question should both be read as a lack of evidence of motive to fabricate, especially when reading the reasons as a whole in relation to both complainants. The trial judge makes specific reference to considering the evidence of the complainants in combination. As previously noted, the trials in relation to these complainants were heard together after the Crown made a cross-count similar fact application, which was conceded by the defence.

[18] While this court agrees that the reasons must be read as a whole, this court does not agree with the Crown’s interpretation of the reasons for judgment. Surely, where there is no ambiguity in the words used, the trial judge can be taken as meaning exactly what they say. It is the view of this court that the trial judge made significant and fatal errors on this topic of motive to fabricate:

a. The trial judge stated, “in this case there existed no motive to fabricate or any animosity that might undermine Ms. [C]’s credibility”. The trial judge does not refer to an absence of evidence of motive to fabricate – rather refers to no motive to fabricate. Contrary to the Crown’s submissions that the trial judge meant an absence of evidence of motive to fabricate, the trial judge found, and explicitly stated, that there was no motive to fabricate or any animosity as it related to J.C. This language appears purposely distinct from the language used in relation to E.H., wherein the trial judge referred to “no evidence of any animosity or a motive to fabricate.” There is no question that the trial judge made the impermissible leap between there not being any evidence of motive to fabricate, to a factual finding that there was no motive to fabricate. b. The trial judge based this conclusion of no motive to fabricate on the fact that there was a good relationship between the Appellant and the complainant previously. While the possibility exists for the Crown to prove that a complainant had no motive to fabricate, the bar is set high. Evidence of a good relationship between the complainant and the accused, standing alone, is insufficient to establish that the complainant had no motive to fabricate. See Ignacio at para. 33, citing R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534 at para. 25; and R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412 at para. 45. c. After brief reasons as to the credibility and reliability of J.C., the trial judge transformed the absence of evidence of a motive to fabricate into a proven lack of motive, and then used this finding to enhance the credibility of the complainant. While the determination of no motive to fabricate was not the only reason to find J.C. credible, it was certainly an ingredient in the credibility mix – a “make-weight” – otherwise it would not have been mentioned at all, especially given the brevity of the reasons on this critical issue. d. The Crown conceded that the defence never raised the topic of motive to fabricate in this case, even in the face of the Crown’s submissions. Therefore, in the absence of a defence argument putting motive to fabricate forward, the judge’s finding suggests that there is a burden on the accused to establish a motive when clearly no such burden exists. The stated recognition that the accused has no obligation to provide an explanation of why someone might make allegations and an accused need not establish a motive to fabricate does not neutralize this fundamental and fatal error. The trial judge was seeking a “motive to fabricate or any animosity that might undermine Ms. [C]’s credibility”. This is placing an improper burden on the accused. e. In relation to E.H., the trial judge concluded that there was “no evidence of any animosity or a motive to fabricate” referring to the “good relationship” that previously existed between Mr. Taheri and the complainant. It is the view of this court that the trial judge placed undue weight on the apparent lack of evidence of animus to bolster the credibility of the complainant. This observation of the trial judge was made at a critical point in her analysis of credibility. There was no acknowledgment by the trial judge that the absence of a demonstrated motive to fabricate does not necessarily mean that there was no motive. While the absence of evidence of motive to fabricate can be noted and considered, it cannot drive the trial judge’s credibility findings to a conclusion that the complainant must be telling the truth. The trial judge clearly used this factor to enhance the complainant’s credibility and it was one of the key building blocks in her acceptance of the complainant’s evidence. f. Further, as noted above in relation to J.C., the defence did not raise the motive to fabricate issue in any way in this trial. If the accused does not raise the issue, it is not open to the trial judge to find that there was no evidence of motive to fabricate and to use that finding, not disproved by the accused, as a “make-weight” in support of the complainant’s credibility. After brief reasons as to the credibility and reliability of E.H.., the trial judge did just that, again referring to the “good relationship” that the complainant had previously had with the Appellant as her reason for coming to this conclusion.

[19] While this court acknowledges that the trial judge cited other brief reasons for finding the complainants credible, there is no question that the absence of motive to fabricate, and finding of proven lack of motive, was used to enhance the assessment of the complainants’ credibility in a significant way, in a circumstance where the defence had not put forward this argument.

[20] It is the view of this court that, for this reason alone, the Appellant is entitled to a new trial. The Court of Appeal has stated that this is not a “trivial error”. This case was all about credibility. It is the view of this court that this error led to the Appellant’s conviction.

[21] It should also be noted that the trial judge overstated the defence concession related to the assessment of the complainants’ evidence. The defence stated, “With respect to their evidence of the incident offences, they – I can concede that their evidence was essentially unshaken and was consistent.” However, the trial judge interpreted this to mean that the defence “conceded that there were no material prior inconsistent statements” and that the “evidence was not undermined, changed or shaken in cross-examination.” As a result, it would appear that the trial judge did not consider the impact of inconsistencies on their credibility. It cannot be said that this overstatement of defence counsel’s position did not have an impact on the trial judge’s analysis. While this issue alone would not have led this court to grant the appeal and order a new trial, it is certainly worth noting in the context of the more significant error.

[22] This court is unable to say that the verdict would necessarily have been the same if the errors in relation to the issue of motive to fabricate had not occurred. There is a possibility that, if the error had not been committed, an acquittal would have resulted.

Other Grounds of Appeal Raised

[23] As for the suggestion that the trial judge improperly relied on J.C.’s age to bolster her credibility, it is the view of this court that this argument is without merit.

[24] At the conclusion of her assessment of J.C.’s credibility, the trial judge found:

It was compelling when she gave the description that she [slanted her body away from Mr. Taheri] because she wanted to give as little of her body to him as possible. This is particularly compelling coming from a youthful and sometimes shy witness. I accept the evidence of Ms. [C] as both credible and reliable.

[25] It is clear that the judge’s assessment of J.C.’s credibility is not based solely or even substantially on J.C.’s age. The trial judge was simply describing the obvious character and demeanour of the witness that she had before her. The trial judge was certainly not concluding that the evidence must necessarily be true because of these characteristics.

[26] As for the suggestion that the trial judge found that the Appellant’s evidence was a fabrication or tailored, it is the view of this court that this argument is without merit.

[27] In her reasons for judgment, the trial judge made these findings about the Appellant’s purpose in testifying:

Specifically I find that he understated the frequency of his contact with both Ms. [C] and Ms. [H] in an attempt to minimize his relationship and contact with the young women. […]

I find that Mr. Taheri was attempting to limit his opportunity for contact with Ms. [C] in order to undermine the suggestion that he was in a position of trust and authority and to minimize the extent of his relationship with both Ms. [C] and Ms. [H]. […]

I find that Mr. Taheri’s assertion that Ms. [H] and Ms. [C] spent their time at the desk with the nurses was again an attempt to minimize his opportunity for contact with Ms. [C] and Ms. [H] and to minimize the influence he had on their work. […]

[28] These comments do not suggest tailoring in the manner the Appellant suggested. The Appellant referred this court to various cases in which the Court of Appeal has clearly stated that it is an error of law for the Crown or the trial judge to impugn the credibility of the accused on the basis that they tailored their evidence to the disclosure or the testimony heard in court. See R. v. White (1999), , 42 O.R. (3d) 760, (Ont. C.A.); R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230 at paras. 20-29; R. v. Jorgge, 2013 ONCA 485 at paras. 8-19; R. v. M.D., 2020 ONCA 290, 392 C.C.C. (3d) 29 at paras. 18-36; R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14 at paras. 24-45. There is no question that this is improper.

[29] However, there is nothing about the comments of the trial judge that suggested this type of error. Certainly, the trial judge is entitled to disbelieve the accused on certain points and to express their reason as to why the evidence was disbelieved – in fact this is required. If these comments amount to tailoring, then anytime a judge questions the evidence of the accused could be seen as an accusation of tailoring. Surely, this concept cannot be so broad. The reality is that the Appellant did attempt to minimize his contact, therefore, minimize opportunity to have done what was suggested or minimize his position of authority. The comments of the trial judge were simply responding to the defence advanced at trial. See R. v. A.P., 2022 ONCA 818, paras 4-5. Ultimately, however, this is not what this case turned on, given that Mr. Taheri admitted to hugging both complainants, just not in the manner they described, and admitted to working with and assisting the complainants in their work.

[30] As to a finding that the Appellant fabricated his evidence, the Appellant argued that the trial judge erred in the following comments:

Mr. Taheri’s evidence is also not plausible as he provided an identical description of both Ms. [C] and Ms. [H] coming to see him, thanking him for his assistance because it was their last day, opening their arms to him and he acquiescing in a hug. I find this version of the events to be a fabrication and do not accept his evidence that two young women coincidentally approached him for a hug out of thanks for his assistance especially given that it was not Ms. [C]’s last day.

[31] Finding fabrication is only permissible when founded on evidence distinct from that which contradicts or discredits the accused’s account. Absent independent evidence of concoction, it will be an error to go beyond rejection of the Appellant’s testimony and find it was fabricated. See R. v. O’Connor (2002), , 62 O.R. (3d) 263, at paras. 17-27, (Ont. C.A.); R. v. Coutts (1998), , 40 O.R. (3d) 198, (Ont. C.A.).

[32] While the language used by the trial judge may have been a bit too strong, this court is not convinced that the trial judge blurred the lines on the burden of proof or moved from this finding to a finding of guilt. The trial judge ultimately cited numerous reasons for rejecting the Appellant’s evidence.

[33] As for any suggestion that the trial judge materially misapprehended the evidence in assessing credibility, beyond the factors that have been referred to above, this court does not accept the characterization of the Appellant.

[34] In R. v. Morrissey (1995), , 22 O.R. (3d) 514 (C.A.) at p. 541, the court stated:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[35] In R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291 the Appellant argued that the trial judge misapprehended significant parts of the evidence, applied different standards of scrutiny to the evidence, and relied on material not in evidence. The court stated:

[60] A misapprehension of the evidence may relate to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey (1995), , 22 O.R. (3d) 514 (C.A.), at p. 538. To set aside a conviction on the basis that the trial judge misapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge’s reasoning and the alleged errors must play an essential part in the reasoning process, not just of the narrative. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error: Lohrer at para. 2; Morrissey at p. 541; R. v. T.(T.) (2009), 2009 ONCA 613, 68 C.R. (6th) 1 (Ont. C.A.), at para. 33.

[36] This court is not convinced that any of the argued misapprehensions raised in this case rise to that level. Specifically:

a. While this court is concerned that the trial judge overstated the defence concession as to the assessment of the complainants’ evidence, the areas of supposed inconsistency raised by the Appellant do seem somewhat immaterial and, in many instances, subject to interpretations or explanations that would remove any suggestion of inconsistency. b. As for the suggestion that the trial judge misapprehended aspects of the Appellant’s evidence leading to errors in her credibility assessment, it is the view of this court that the conclusions reached were available on the evidence. The areas raised by the Appellant are simply different interpretations or ways of looking at the evidence. The alleged misapprehensions relate to granular details of the narrative.

The trial judge’s treatment of this evidence does not constitute a reversible error. The assessment of credibility is a question of fact and a trial judge’s findings are entitled to a high degree of deference.

Conclusion

[37] It is this court’s view that the trial judge erred in relation to the analysis of motive to fabricate.

[38] For all of the foregoing reasons, the appeal is allowed, convictions quashed, and a new trial ordered.

Justice V. Christie

Released: March 10, 2023