



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. M.S., 2019 ONCA 869

DATE: 20191105

DOCKET: C64100

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.S.

Appellant

Mark Halfyard, for the appellant

Elena Middelkamp, for the respondent

Heard: October 29, 2019

On appeal from the conviction entered on May 8, 2017 by
    Justice Jamie Trimble of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual interference and invitation to
    sexual touching but acquitted of sexual assault. The counts flow from three
    separate incidents involving his stepdaughter at the family home.

[2]

At trial, the appellant denied the allegations. During his examination, defence
    counsel (not appellate counsel) asked the appellant if he was aware of why the
    complainant would come forward and make these allegations. The appellant
    responded that he did not know why. The Crown confronted him with a prior
    police statement in which he stated that she made up the allegations because of
    an incident involving her boyfriend and established the inconsistency. The
    appellant acknowledged the statement.

[3]

The Crown then cross-examined the appellant extensively regarding the
    complainants motive to fabricate generally. Specifically, the Crown asked the
    appellant:

·

What
    possible reason she would have to make all this up;

·

Was
    there any reason why she would go to the police, make a statement, and come to
    court twice to testify;

·

What
    was her reason for making up the first and second incident;

·

What
    was her motive; and,

·

Why was she going to the police?

[4]

The trial judge also asked the appellant: was there some specific
    reason, some event, something happened, that you think caused [her] to lie
    about that and make up that story back then. The appellant responded that he
    did not remember exactly but she was being punished for something. At this
    point, the Crown continued the cross-examination about the complainants discipline
    and other reasons she may have had to make the allegations.

[5]

The trial judge referred to the evidence of motive in his reasons when
    he assessed the credibility of the appellant and the complainant.

[6]

The appellant submits that by allowing cross-examination on the motive
    to fabricate and then using the evidence to discredit the appellant and enhance
    the evidence of the complainant, the trial judge shifted the burden of proof
    and erred in law.

[7]

We accept the appellants submission and it is not necessary to address
    the other grounds of appeal.

[8]

It is well-established that there is no onus on the accused to comment
    on the credibility of the accuser. The Crown submits, and we agree, that there
    were inconsistencies in the appellants prior statement which were the proper
    subject matter of cross-examination.

[9]

The Crown also submits that, in addition to the inconsistencies, the further
    questions were justified because the appellant open[ed] the door by raising
    the complainants alleged motive to fabricate of his own accord.

[10]

We disagree. The evidence the appellant gave in-chief was that he did
    not know of any reasons why the complainant would make the allegations. There were
    therefore no claimed motives that required challenge by cross-examination. The
    Crown was entitled to pursue the inconsistencies in cross-examination and to
    proceed cautiously on the appellants response to the question in-chief.
    However, the cross-examination went far beyond the inconsistencies and scope of
    a proper cross-examination. The Crowns questions required the appellant to
    comment on  and indeed speculate  about the complainants motive, both
    generally and with respect to specific incidents. In this way, the questioning
    went directly against long-standing jurisprudence by improperly placing the
    onus on the appellant to explain why the complainant would falsely accuse him.
    This court set out the rationale for limiting the line of questioning about the
    complainants motives in
R. v. T.M
., 2014 ONCA 854, at paras. 37-38:

The appellant argues that this cross-examination was improper.
    He relies on the many decisions of this court that have held it is improper to
    call upon an accused to comment on the credibility of his accusers: see
R. v. Rose
(2001
)
,
2001 CanLII 24079 (ON CA)
,
53 O.R. (3d) 417 (C.A.)
, at para.
27
, per Charron J.A.;
    and
R. v. L.L.
,
2009 ONCA
    413 (CanLII)
,
96
    O.R. (3d) 412
,
    at paras.
15-16
, per Simmons
    J.A.

The concern with this line of
    questioning is two-fold. First, it is unfair to ask an accused to speculate
    about a witnesss motives. Second, these questions risk shifting the burden of
    proof. The burden is on the Crown to prove beyond a reasonable doubt that a
    complainants allegations are true. Yet questions to an accused about a
    complainants motives may cause the trier of fact to focus on whether the
    accused can provide an explanation for why a complainant would make false
    allegations, and find the accused guilty if a credible explanation is not
    forthcoming.

[11]

That defence counsel did not object to the line of questioning is not
    determinative. As this court held in
R. v. L.(L
.
)
, 2009 ONCA 413,
    96 O.R. (3d) 412, at para. 17:

Contrary
    to the submissions of the trial Crown, the fact that it may be appropriate for
    the police to ask such questions as part of an investigation does not mean that
    portions of an accused's statement in which such questions are asked are
    properly admissible. This court made that clear in
C.(F.).
In that case,
    even though no objection was raised at trial, this court held that portions of
    an accused's statement to the police asking him to explain why the complainant
    made the allegations and why some people believed the complainant should not
    have been placed before the jury.

[12]

The trial judges reasons disclosed that he used the evidence adduced
    from the appellant on cross-examination to enhance the complainants
    credibility. Although he instructed himself not to equate credibility with an absence
    of motive to fabricate, he relied on the absence of motive to enhance the
    complainants credibility. At two different points in the reasons, the trial
    judge stated that there is no evidence that the complainant had any reason to
    fabricate these complaints. Moreover, he found, at para. 107:

Finally, there is no evidence that
    [the complainant] had any reason [to] fabricate these complaints against [the
    appellant].
There was no ulterior motive.
[Emphasis added.]

[13]

The trial judge erred by using the evidence to enhance his assessment of
    the complainants credibility. He fell into the error articulated in
R. v.
    Bartholomew,
2019 ONCA 377, at para. 23 and transformed the absence of a
    proven motive to fabricate into a proven lack of motive. A proven absence of
    motive may provide a platform to assert that the complainant must be telling
    the truth:
Bartholomew
, at para. 21. But, the absence of evidence of
    motive does not mean that the complainant must be telling the truth.

[14]

The danger in relying on this factor to bolster the complainants
    credibility is that an absence of proved motive is often unreliable. This court
    has raised this concern repeatedly:

There are simply too many reasons
    why a person might not tell the truth, most of which will be unknown except to
    the person her/himself, to use it as a foundation to enhance the witness
    credibility. Consequently, [a motive to fabricate] is an unhelpful factor in
    assessing credibility:
R. v. Sanchez
, 2017 ONCA 994, at para. 25, citing
L.(L.)
at para. 44.

[15]

To a lesser extent, the trial judge appears to have relied on this
    evidence in evaluating the appellants testimony. At para. 104, the trial judge
    disbelieved the appellants evidence about the complainant being punished by
    saying that his explanation for the complainants motive makes no sense and
    was vague. Using the appellants testimony in this way tacitly shifted the
    burden of proof onto the appellant to demonstrate that the complainant had a
    motive to fabricate: see
R. v. Batte
(2000), 49 O.R. (3d) 321, at para.
    121 (C.A.).

[16]

This court has provided ample direction on the permissible use of a motive
    to fabricate in assessing credibility at the trial level. A misplaced emphasis on
    motive overlooks the fact that motive is, at best, a secondary consideration,
    and offers limited assistance to either party when sexual offences are at
    issue. At trial, the chief task is  and must remain  whether the Crown has
    met its burden beyond a reasonable doubt.

[17]

Accordingly, the appeal is allowed, and a new trial is ordered.

M.L. Benotto J.A.

David Brown J.A.

David M. Paciocco
    J.A.


