



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nnabuogor, 2017 ONCA 762

DATE: 20171002

DOCKET: C62803

Cronk, Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Victor Nnabuogor

Appellant

Richard Litkowski, for the appellant

Andreea Baiasu, for the respondent

Heard: September 28, 2017

On appeal from the decision of the Summary Conviction
    Appeal Court dated September 22, 2016 by Justice
Tamarin M.
Dunnet of the Superior Court of Justice,
    dismissing the appeal from the convictions entered on September 14, 2015 by
    Justice
Rebecca
Rutherford of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of assaulting and sexually assaulting the
    complainant, after a summary trial in the Ontario Court of Justice. He appealed
    those convictions unsuccessfully to a Summary Conviction Appeal Court. He now
    seeks leave to appeal the Summary Conviction Appeal Court decision, asking that
    the convictions be quashed and a new trial be ordered.

[2]

He contends that the Summary Conviction Appeal judge erred in law by not
    recognizing that the trial judge confused the distinction between a proved absence
    of motive to lie and the absence of evidence of a motive to lie, and by making
    a positive finding that the complainant had no motive to lie simply because
    there was no proof that she had a motive to do so. He also urges that the
    Summary Conviction Appeal Judge erred by failing to find that, in the event of
    an error of law, the trial judge could not use the proviso to sustain the
    convictions.

[3]

The application for leave to appeal is denied. The test for leave to
    appeal described in in
R. v. R.R.
,

(2008) ONCA 497 has not
    been met.

[4]

The legal rule that is engaged  the distinction between a proved
    absence of motive to lie and the absence of evidence of a motive to lie  is
    the subject of clear and settled case law:
R. v. L.(L.)
,
2009 ONCA 413. No question of law alone
    of general significance arises in this appeal.

[5]

Nor are the merits of the appeal strong. On its face, the impugned
    comment by the trial judge relating to the complainant, I do not find there to
    be any underlying motivation on her part to fabricate evidence, is not a
    positive finding that the complainant did not have a motive to fabricate. This
    passage is a straightforward indication by the trial judge that she declined to
    find a motivation to fabricate. The context of the decision reinforces that
    this passage communicates a rejection of efforts by the appellant to persuade
    the trial judge that the defence had demonstrated a positive motive for the
    complainant to lie.

[6]

The Summary Conviction Appeal Judge therefore committed no error, let
    alone a clear error, when she found that, in this passage, the trial judge was
    reject[ing] the defence submission to make a positive finding of a motive to
    lie.

[7]

Nor did the Summary Conviction Appeal Judge concede the possibility of
    an error when commenting, Even if [the Trial Judges] sentence  raises
    concerns about a misstatement of law ... it is not material to her finding of
    guilt. The Summary Conviction Appeal Judge was simply explaining that even if
    there had been an error on this point it would have had no impact on the
    outcome.

[8]

It is not necessary for us to decide whether, in making this comment,
    the Summary Conviction Appeal Judge implicitly and improperly invoked the
    proviso. Given that her decision was that no error of law had occurred, the
    application of the proviso is moot.

[9]

Leave to appeal is therefore denied and the appeal is dismissed.

E.A. Cronk J.A.

R.G. Juriansz J.A.

David M. Paciocco J.A.


