



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)     REPEALED: S.C.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).

(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.

(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    that could identify the victim shall not be published in any document or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.

(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.

(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.

(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.

(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

CITATION: R. v. Ignacio, 2021 ONCA 69

DATE: 20210203

DOCKET: C67188

Pepall, van Rensburg and Brown
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Ignacio

Appellant

Michael Dineen, for the appellant

Jeffrey Wyngaarden, for the respondent

Heard: October 20, 2020 by video conference

On appeal from the conviction entered on
    March 7, 2019 by Justice P. Andras Schreck of the Superior Court of Justice,
    sitting without a jury, with reasons reported at 2019 ONSC 1511.

Pepall J.A.
:


I.

Introduction

[1]

The appellant, Kenneth Ignacio, appeals from his conviction for sexual
    assault. He raises one ground of appeal. He argues that the trial judge erred
    in finding that the complainant had no motive to fabricate and in considering
    this as a factor in assessing her credibility.

[2]

The appellant says that the trial judge found a proven absence of motive
    to fabricate, even though the evidence did not support such a finding. At most,
    the trial judge could have found an absence of evidence of motive to fabricate.
    The trial judge then wrongly used his finding that the complainant had no
    motive to fabricate to enhance her credibility.

[3]

For the reasons that follow, I would dismiss the appeal. Placed in
    context, the trial judge rejected the motive to fabricate argument advanced by
    the appellant. He was entitled to consider the absence of evidence of a motive
    to fabricate as one of many factors in his credibility analysis.

II.       Facts

[4]

The appellant and the complainant, who are both in their early twenties,
    met at a concert at the end of April 2017. Over the next few days, they
    exchanged text messages. A few days later, they both attended a barbecue at the
    home of the appellants cousins. The complainant drove in her car and arrived
    around 11 p.m. The appellant was already there. Both the appellant and the
    complainant agreed that he was very intoxicated. When it was time to leave the barbeque
    about an hour and a half later, the complainant offered to drive the appellant
    home. She had consumed very little alcohol and was sober. The appellant
    accepted the offer of a lift.

[5]

They kissed in the car as the complainant was driving the appellant
    home. She testified that he insisted on giving her a kiss each time they
    stopped at a red light and that she agreed to do so the third time they
    stopped. The appellant testified that they kissed at each red light.

[6]

She drove onto Highway 401 and then they agreed to exit and park the
    car. According to the complainant, he asked her to pull over so they could talk
    and he could sober up. According to the appellant, he had jokingly mentioned
    that kissing in the car might result in an accident and she then told him that
    she knew of a place they could go. She pulled off the highway and parked in a
    nearby parking lot.

[7]

The appellant got in the back seat and invited the complainant to join
    him. The complainant testified that she agreed to do so but told him that she
    would only kiss him and do nothing else and she wanted him to understand that
    she would not have sex with him. He denied that she had said anything about not
    having sex with him before getting into the back seat.

[8]

They began kissing in the back seat. The appellant put his hand up her
    shirt and under her bra and started to unbutton her pants. According to the
    complainant, she told him to stop, but he said that he would make her feel good
    and then took off her pants. He said she arched her back to facilitate their
    removal but she said he did so without any assistance from her.

[9]

He performed oral sex on the complainant for about three minutes,
    according to the complainant. He then pulled his pants down and exposed his
    penis. She testified that he said, Are you really not going to, which she
    took to mean he wished her to perform fellatio on him, which she did.

[10]

The
    appellant told the complainant that the fellatio was not working for him, and
    that he wanted to have sex.

[11]

The
    complainants and the appellants accounts then diverged.

[12]

According
    to the complainant, she told him that they were not going to have sex and that
    things had already gone too far, saying, I am not having sex with you, not
    now, not tonight, not ever. She testified that the appellant nonetheless
    forcefully penetrated her vagina without her consent. She told the appellant to
    stop and hit him on the chest, but he grabbed her hands and pushed them down
    beside her. After he had finished, the complainant moved to the front seat. She
    testified that he sat next to her and said, S., you didnt really want that. I
    raped you.

[13]

According
    to the appellant, after the complainant performed fellatio on him, he said,
    Can we just like do it? (or words to that effect), meaning he wished to have
    sexual intercourse, and she responded by saying, Dont ejaculate inside me, or,
    Yes, but just dont ejaculate. He agreed not to but unintentionally did so. He
    denied that she ever said anything to indicate that she did not consent to
    sexual intercourse. He said she freaked out and was horrified when he told
    her he had ejaculated inside her.

[14]

She
    searched on her phone for a pharmacy so that she could purchase a contraceptive
    pill. According to the complainant, the appellant insisted on accompanying her,
    whereas he said he accompanied her at her request. The complainant took the
    pill and then dropped the appellant off at an intersection. He said that before
    leaving the car, he gave her a hug and said that he was sorry for ejaculating
    inside her.

[15]

The
    complainant called a friend and told her what happened but not the details. She
    asked her friend to stay on the phone until she got home. The complainants
    phone records show that she made a 16-minute call at 4:06 a.m. on May 1, 2017.

[16]

The
    next day, the complainant went to her place of employment and then to the
    hospital with a friend from work for a rape kit examination. She subsequently
    contacted the police. Her friend from work testified that when the complainant arrived
    at work, she looked disheveled, had obviously been crying, and was pale. On the
    way to the hospital, she was upset, crying, and shaky. She would calm down
    from time to time only to start crying again.

[17]

At
    2:43 p.m. on May 1, 2017, the appellant sent a text message to the complainant
    saying, Hey just woke up. How are you? I hope everythings fine with you. It
    was followed by another text message saying, Im truly sorry for last night. He
    testified that he was apologizing for having ejaculated inside of the
    complainant. The complainant did not respond to his text messages.

[18]

In
    sum, at trial, the complainant testified that the sexual intercourse was not
    consensual and the appellant testified that it was.

III.      Trial Judges
    Decision

[19]

The
    trial judge rejected the appellants evidence and held that it did not raise a
    reasonable doubt. The central difficulty with the appellants evidence was his
    intoxication at the time of the events. His intoxication affected both his
    reliability and his credibility. The appellant himself had testified that he
    was binge drinking to the point of blacking out and only recalled bits and
    pieces of the evening. This affected his reliability because intoxication
    affects ones ability to perceive and recall events.

[20]

The
    intoxication also affected the credibility of the appellants evidence. The
    trial judge found that the appellants claim to be able to recall every detail
    of his sexual interaction with the complainant was inconsistent with his high
    degree of intoxication. The trial judge found that the appellant was willing to
    fill in blanks in his testimony when necessary.

[21]

The
    trial judge accepted the complainants evidence. He found the complainants
    evidence was plausible and consistent and she was not prone to
    exaggeration. She candidly admitted that some of the sexual activity, such as
    the oral sex, was consensual. He also considered the evidence of the
    complainants work friend on the complainants emotional state the day after
    the alleged sexual assault and concluded that it supported the complainants
    testimony.

[22]

The
    trial judge rejected the defences allegation that the complainant had a motive
    to fabricate. He commented on motive in two paragraphs, the first of which is
    the contentious one for the purpose of this appeal and is placed under the
    heading [The Complainants] Evidence:

I note as well that [the complainant] had no motive to falsely
    accuse Mr. Ignacio of a serious crime. To the contrary, it is clear from the
    evidence that prior to the sexual activity, she liked Mr. Ignacio and hoped to
    get to know him better. In making this observation, I am mindful that the
    burden of proof is on the Crown and that there is therefore no obligation on an
    accused to demonstrate why a witness would testify falsely:
R. v. Krack
(1990), 56 C.C.C. (3d) 555 (Ont. C.A.), at
    pp. 561-562. Nonetheless, this is a factor to consider:
R.
    v. Jackson
, [1995] O.J. No. 2471 (C.A.), at para. 4;
R. v. Plews
, 2010 ONSC 5653, at para. 335. I recognize
    that the defence has alleged a motive to fabricate that is related to [the
    complainants] fear of having become pregnant, an issue I will address later in
    these reasons.

[23]

Two
    paragraphs later, under the heading The Alleged Motive to Fabricate, the
    trial judge wrote the following:

It was submitted on behalf of Mr. Ignacio that [the
    complainant] had a motive to fabricate a sexual assault because she was afraid
    that she had become pregnant as a result of Mr. Ignacio ejaculating inside her
    and needed to explain any pregnancy to her parents in such a way as to absolve
    herself of having any responsibility for the situation. It was also submitted
    that this fear of pregnancy explains why [the complainant] was so upset the
    following day. In my view, the problem with this theory is that [the
    complainant] had the wherewithal to obtain a morning after pill immediately
    after Mr. Ignacio ejaculated inside her. She took the pill and there is no
    suggestion that she had any reason to think that it would not work. She had no
    real reason to believe that she was pregnant. Even if she had such a fear, it
    is difficult to understand why she would subject herself to a rape kit
    examination the following day. If she was worried about being pregnant, surely
    undergoing a pregnancy test would have made far more sense.

[24]

The
    trial judge accepted the complainants evidence and found beyond a reasonable
    doubt that the appellant sexually assaulted her.

IV.     Parties
    Positions

[25]

The
    appellant submits that the trial judge erred in finding that the complainant
    had no motive to fabricate. The evidence was not capable of supporting such a
    conclusion and the finding could not properly be used to infer that the
    complainant was telling the truth. Evidence of a prior good relationship
    between the appellant and the complainant is not sufficient to justify a
    positive finding that the complainant had no motive to fabricate and cannot be
    used to infer that the complainant was telling the truth.

[26]

The
    appellant submits that the trial judges error affected the result. The
    appellants evidence was not inherently implausible, and the trial judge might
    have had a reasonable doubt had he not relied on the supposed proven lack of
    motive to fabricate in accepting the complainants evidence. The appellant argues
    that the structure of the trial judges reasons also supports his improper
    reliance on absence of motive to fabricate.

[27]

The
    Crown submits that the trial judges reasons should not be read as containing
    an affirmative finding that there was no motive to fabricate. Read in context,
    the trial judges comments were responsive to the arguments surrounding motive
    made by the defence. The trial judge did not reverse the onus of proof or
    improperly infer that the complainant was telling the truth because there was
    no apparent motive for her to lie.

[28]

Even
    if the trial judge erred in conflating the absence of evidence of motive to
    fabricate with a finding of no motive to fabricate, the Crown argues that the
    error did not cause a miscarriage of justice and the appeal should be dismissed
    based on the curative
proviso
.

V.      Analysis

[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.]

[30]

In
    addressing this appeal, there are in essence two questions that require a
    response:

(i)     Did
    the trial judge find that the Crown had proven that the complainant had
no
motive to fabricate or that there was, as the Crown asserts, simply an
absence
    of evidence
of any motive to fabricate?

(ii)     If
    the evidence fell short of establishing that the complainant had
no
motive to fabricate and the trial judge was simply adverting to an
absence
    of evidence
of any motive to fabricate, was he entitled to consider that
    absence in his analysis of the complainants credibility?

(a)

Proof of no motive to fabricate

[31]

The
    first part of the appellants 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 judges analysis of credibility than it did. Instead, it simply
    amounted to an observation and a factor to consider, to use the trial
    judges 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
    judges 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.

(b)

Absence of evidence of motive to fabricate may be considered in
    credibility analysis

[37]

This
    does not end the matter, however. The question then becomes: was the trial
    judge entitled to treat the
absence of
    evidence
of motive to fabricate as a consideration in assessing
    the complainants credibility?

[38]

Both
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.)
    and
L.L.

say
    that the absence of evidence of motive may be considered as a factor in
    assessing credibility.

[39]

In

Batte
,
the appellant was
    convicted of sexual offences in relation to two complainants. Among other
    things, the appellant argued that the trial judge erred in instructing the jury
    that they could ask themselves why the complainants would have fabricated the
    allegations and subjected themselves to the trial process. At trial, the
    defence had argued that the complainants hated the appellant, and their hatred
    motivated them to fabricate the allegations: at para. 119.

[40]

Doherty
    J.A. confirmed that juries are entitled to consider whether there is evidence
    of a motive to fabricate, and he identified problems for trial judges to avoid
    in instructing on this issue, writing, at paras. 120-121:

It is
    difficult to think of a factor which, as a matter of common sense and life
    experience, would be more germane to a witness credibility than the existence
    of a motive to fabricate evidence. Similarly, the absence of any reason to make
    a false allegation is a factor which juries, using their common sense, will and
    should consider in assessing a witness credibility
.

What must be avoided in instructing a jury is any suggestion
    that the accused has an onus to demonstrate that the complainant has a motive
    to fabricate evidence, that the absence of a demonstrated motive to fabricate
    necessarily means that there was no motive or, finally, that the absence of a
    motive to fabricate conclusively establishes that a witness is telling the
    truth.
The presence or absence
    of a motive to fabricate is only one factor to be considered in assessing
    credibility
.
[Footnote omitted; emphasis added.]

[41]

Doherty
    J.A. held that the trial judge had not erred in his instruction to the jury
    because, looking at the charge as a whole, the jury would have understood that
    in assessing the complainants credibility, they were required to consider many
    factors, and not only the issue of motive: at para. 125. It would have been
    preferable, however, for the trial judge to have reminded the jury that
    motives sometimes remain hidden and that the absence of a motive to fabricate
    evidence was not determinative of the truth of the complainants evidence: at
    para. 125.

[42]

In
L.L.
, a 2009 decision of this court, the appellant was
    convicted of incest following a jury trial. The trial Crown had asked a series
    of improper questions of the appellants son relating to the complainants
    motive to fabricate, and in closing submissions, relied heavily on the theory
    that the complainant had
no
motive to fabricate.

[43]

This
    court allowed the appeal. The Crowns closing submissions suggested that the
    Crown had proven a lack of motive to fabricate when the evidence was incapable
    of supporting such a conclusion. The Crown also created a risk that the jury
    would leap to the conclusion that the complainant must be telling the truth if
    there was no demonstrated motive for her to lie.

[44]

In
    outlining what the trial judge ought to have told the jury, Simmons J.A. did
    not say that the trial judge should have told the jury they could not consider
    the absence of any apparent motive to fabricate. On the contrary, she said that
    the trial judge should have told the jury that they
could

consider
    it, but only as one factor among many: at paras. 19, 53. See also,
R. v. M.B.
, 2011 ONCA 76, 267 C.C.C. (3d) 72.

[45]

The
    appellant relies on
R. v. Sanchez
, 2017 ONCA
    994 and
Bartholomew

in
    support of his position that
absence of
    evidence
of motive to fabricate is an improper consideration in a
    credibility analysis. He does not suggest that
Bartholomew

and
Sanchez
have
    overruled
Batte

and
L.L.
Rather, he says that these more recent
    decisions have clarified the proper treatment of the
absence of evidence
of motive to fabricate, which is
    that it should not be considered as anything more than a neutral factor.

[46]

I am
    not persuaded that
Sanchez
and
Bartholomew
stand for the proposition advanced by the
    appellant, which would arguably be inconsistent with
Batte
and
L.L.

[47]

In
Sanchez
,
Nordheimer
    J.A. allowed the appeal of convictions for historical sexual offences and
    accepted that the trial judge made multiple errors in assessing credibility,
    one of which was the trial judges reasoning on motive to lie. However, at
    para. 30, he observed, that individually none of the failings I have
    identified might prove fatal to the trial judges credibility findings. While
    he did note, at para. 25, that the absence of a proven motive to fabricate is
    not particularly probative of a witnesss credibility, he did not prohibit
    trial judges from considering the
absence of evidence
of motive to
    fabricate. Rather, he commented that this is an unreliable factor, and it
    should not be used as a
foundation
to enhance the witness credibility
    (emphasis added). I understand this statement as a caution against placing an
    improper emphasis on the absence of evidence of motive to fabricate. This is
    consistent with what this court said in
Batte
and
L.L.
that this is only one factor among
    many.

[48]

To
    this I would add Nordheimer J.A.s most recent statement in
R. v. W.R.
, 2020 ONCA 813, at para. 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.

[49]

In
Bartholomew
, this court allowed the appeal because the
    trial judge erred in concluding that there was a proved absence of motive. This
    conclusion impacted the trial judges assessment of the complainants
    credibility, which was a central issue in the case: at para. 9.

[50]

Trotter
    J.A. went on to explain that the evidence in
Bartholomew
was not capable of supporting the conclusion that the complainant had no motive
    to fabricate: at paras. 24-26. The 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: at para. 25. This state of affairs
    was not capable of enhancing the complainants credibility, as the trial judge
    did. At best,
it was a
    neutral factor
 (emphasis added): at para. 25.

[51]

As I
    read
Bartholomew
, Trotter J.A. did not go so
    far as to say that the absence of evidence of motive to fabricate will always
    be a neutral factor in the credibility analysis. He did not say so explicitly
    in his summary of the law at paras. 20-23, although he did caution trial judges
    against moving from an apparent lack of motive to the conclusion that the
    complainant must be telling the truth: at para. 22. His comment at para. 25
    that the evidence of a good relationship between the complainant and appellant
    was a neutral factor was made in the context of that particular case. The real
    problem in
Bartholomew
was the trial judges
    finding that the complainant had no motive to fabricate, which was unsupported
    by the evidence. In my view, without a more explicit statement,
Bartholomew
should not be read as having revised the
    principles established in
Batte

and
L.L.

[52]

Consistent
    with this interpretation, in several cases following
Bartholomew
(see, for example,
W.R.
;
R.
    v. Mirzadegan
, 2019 ONCA 864; and
R. v.
    MacKenzie
, 2020 ONCA 646
0F
[1]
),
    this court has confirmed that the trier of fact is entitled to consider the
absence of
    evidence
of motive to fabricate as one factor in assessing the
    complainants credibility. As in
Batte
and
L.L.
,
the cases caution against placing an improper emphasis on the absence of
    evidence of motive to fabricate, finding a proven absence of motive when the
    evidence does not support such a finding, and placing an onus on the accused to
    prove the complainant had a motive to lie. But, assuming these errors are not
    present, the trier is entitled to consider the absence of evidence of motive to
    fabricate as one factor among many in assessing the complainants credibility.

[53]

In
MacKenzie
, Doherty J.A., writing for himself, van
    Rensburg and Trotter JJ.A., confirmed that the absence of evidence of motive to
    fabricate may be left with the jury as a factor to consider in assessing the
    complainants credibility
.
In
MacKenzie
,
    the appellant argued that Crown counsel improperly invited the jury to find
    that the appellants failure to prove a motive to fabricate on the part of the
    complainant confirmed the complainants evidence. The defence argued at trial
    that the complainant was fabricating her evidence and suggested two possible
    motives.

[54]

Doherty
    J.A. rejected the appellants argument, observing, at para. 34:

It was open to the jury to reject the motives to fabricate
    offered by the defence and to conclude there was no evidence of a motive to
    fabricate. If the jury took that view, the absence of any evidence of a motive
    to fabricate could be used as one factor in assessing [the complainants]
    credibility: see
R. v. J.(H.)
, 2020 ONCA 165,
    at paras. 145-46.

[55]

Doherty
    J.A. held that a brief reference to motive in the Crowns closing address did
    not place any onus on the defence to prove that the complainant had a motive to
    lie, in light of the trial judges repeated and correct instructions on the
    burden of proof, and the manner in which he dealt with the relevance of a
    witnesss potential motive: at para. 38.

[56]

Lastly, a case that bears some similarities to the case under
    appeal is this courts decision in
R. v. O.M.
,
    2014 ONCA 503, 313 C.C.C. (3d) 5. There
this court dismissed
    an appeal where the trial judge explicitly found that the Crown had proven an
    absence of a motive to fabricate the allegations (at para. 106), or put
    differently, no motive to fabricate. Before this court, the appellant argued
    that the trial judge erred by finding that the Crown had established the
    complainants lack of a motive to fabricate: at para. 104. This court rejected
    that argument.

[57]

Cronk J.A., writing for the court, accepted the
    distinction between the absence of evidence of a demonstrated motive to
    fabricate and affirmative proof of no motive to fabricate: at para. 107. She
    held that there was no basis to conclude that the trial judge confused the
    absence of evidence of a motive to fabricate with the absence of such a
    motive: at para. 108. The trial judge considered and rejected the defence suggestion
    that each complainant had a motive to fabricate. He did not suggest that the
    complainants must be telling the truth because no motive to fabricate had been
    demonstrated. Instead, he considered the absence of an established motive to
    fabricate as only one factor among many in assessing the complainants
    credibility. This was not in error, as it was consistent with
Batte
.
    Cronk J.A. concluded that it was open to the trial judge to find an absence of
    apparent motive by the complainants to fabricate: at para. 109.

[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 judges 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 complainants
    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 judges comment about motive did not drive the trial judges credibility
    findings, nor did he suggest that his findings on motive led him to conclude
    that the complainant must be telling the truth.

[60]

Credibility
    findings are the province of the trier of fact. In this case, the trial judge
    clearly had no reasonable doubt that the appellant was guilty of sexual
    assault. His treatment of motive to fabricate did not infect that conclusion. In
    these circumstances, there is no need to rely on the curative proviso.

VI.     Disposition

[61]

For these reasons, I would dismiss the appeal.

Released: February 3, 2021 (S.E.P.)

S.E. Pepall
    J.A.

I agree. K.
    van Rensburg J.A.

I agree. David
    Brown J.A.





[1]
Paciocco J.A.s comments in
R.
    v. A.S.
, 2020 ONCA 229, and the courts comments in
R. v. S.H.
, 2020 ONCA 34, arguably could
    be interpreted as being to the contrary. However, the issue of motive to
    fabricate was not central to those appeals and the comments in both cases were
obiter
.


