



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Bartholomew, 2019 ONCA 377

DATE: 20190507

DOCKET: C65311

Roberts, Trotter and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Martin Bartholomew

Appellant

Andrew Burgess, for the appellant

Jeremy D. Tatum, for the respondent

Heard: March 22, 2019

On appeal from the conviction entered by Justice Donna G.
    Hackett of the Ontario Court of Justice on April 17, 2018.

Trotter
    J.A.:

[1]

The appellant was found guilty of one
    count of sexual assault and one count of sexual interference, contrary to ss.
    271 and 151 of the
Criminal Code
,
    R.S.C. 1985, c. C-46. The trial judge entered a conviction for sexual
    interference, and conditionally stayed the sexual assault count.

[2]

The appellant challenged his conviction
    on the basis of alleged errors in the trial judges reasons. At the conclusion
    of the oral hearing, the appeal was allowed and a new trial ordered, with
    reasons to follow. These are those reasons. As I will explain below, the trial
    judge erred in dealing with the issue of whether the complainant had a motive
    to fabricate the allegation against the appellant.

A.

factual overview

[3]

The events giving rise to this case
    occurred in the 2002-2003 school year. The appellant, who was 41-42 years old at
    the time, was employed as a Special Needs Assistant at the complainants middle
    school. The complainant was 12-13 years old and in grade 7. The complainant did
    not require any special assistance. However, he saw the appellant at the school
    on a daily basis.

[4]

The complainant alleged a single
    incident of touching. He testified that it happened before a gym class. After
    changing into his athletic clothing, the complainant made his way from the
    change room to the gym via a space described at trial as a vestibule or short
    hallway. This is where he encountered the appellant. The complainant believed
    that he was the last student to leave the change room on the day of the
    incident.

[5]

The appellant had his back to the door
    leading from the hallway to the gym, which would have prevented anyone from
    coming in from the gym. According to the complainant, the appellant asked him
    about his genital area, but the complainant could not remember exactly what the
    appellant said. The complainant stated that the appellant touched his penis
    under his shorts or pants for about five seconds. He was not sure whether it
    was also inside his underwear. The appellant said something reassuring
    afterwards, but the complainant could not remember exactly what was said. The complainant
    continued on his way into the gym. The incident left him feeling very confused.
    Nothing like this ever happened again.

[6]

The appellant testified that he saw the
    complainant at school about four times a day. The complainant and other
    students would sometimes come to him with their problems. The appellant stated
    that he had a good relationship with the complainant. He denied touching the complainant
    in the manner that the complainant described, and denied stopping him to
    inquire about his genitals.

[7]

The trial judge accepted the complainants
    evidence. She rejected the appellants evidence. She was satisfied beyond a
    reasonable doubt that the incident described by the complainant happened. In reaching
    these conclusions, the trial judge relied on evidence of an absence of motive
    on the complainants part to fabricate the allegation.

B.

issues on appeal

[8]

The appellant advanced two grounds of
    appeal. First, he submitted that the trial judge erred in finding that the
    complainant had no motive to falsely accuse him. Second, the appellant argued
    that the trial judge held the appellants evidence to a higher standard of
    scrutiny than she held the complainants testimony to. The respondent contended
    that the trial judge made neither error.

[9]

As discussed below, I agree with the
    appellant that 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. I would set
    aside the conviction and order a new trial on this basis alone.

C.

analysis

(1)

Motive to Fabricate

[10]

In order to properly frame this issue,
    it is necessary to delve further into the record.

[11]

The complainant described his
    relationship with the appellant as good at the time the incident occurred.
    The complainant denied that he ever had an argument or dispute with the
    appellant. He looked up to the appellant and felt comfortable speaking to him,
    describing him as a mentor.

[12]

The appellant agreed that he had a
    good relationship with the complainant. He could not recall any problems
    between the two of them.

[13]

The complainant testified that, in the
    years following 2002-2003, he saw the appellant from time to time, at a plaza
    that was close to the school. They engaged in small talk. The appellant could
    not recall any such interactions with the complainant outside of school.

[14]

The complainant insisted that he did
    not regard the incident as a big deal. Indeed, he did not consider it to be
    sexual at the time it happened. He made no complaint to his parents, to school
    authorities, or to the police. The allegation came to light after the police
    contacted the complainant in September of 2016. This information came from a
    single answer from the complainant, elicited by the Crown (not Mr. Tatum)
    during examination-in-chief. It was not pursued further at trial.

[15]

During closing submissions, defence
    counsel (not Mr. Burgess) acknowledged that the complainant appeared to harbour
    no bad feelings toward the appellant, such that revenge was an unlikely motive.
    However, she pointed out that there are many reasons why someone may
    fabricate an allegation, reasons that may never come to light. Asked by the
    trial judge to give some examples, defence counsel suggested financial gain.
    When asked if there was a financial motive in this case, defence counsel
    responded: Well, I dont know Your Honour, which is really my point. When
    further challenged on the point, defence counsel submitted that what you have
    here at mostis an absence of evidence of motive.

[16]

The Crown acknowledged that there was
    no onus on the appellant to establish a motive. However, he referred to the
    defence submission that there was merely an absence of evidence of motive and
    said, [t]hats not what we have here, suggesting that a lack of motive was
    proven on the evidence. He submitted that it was a very, very important fact
    to consider when examining the credibility of a witness.

[17]

The trial judge agreed with the Crowns
    approach. She twice mentioned in her reasons for judgment that the complainant had
    no motive to fabricate the allegation. When first addressing the issue, the
    trial judge said:

The defence has no onus to point to a
    motive to fabricate. The onus in a criminal prosecution always rests upon the
    Crown. However, at the same time, an absence of motive can be relevant in
    assessing the credibility of a witness. In this regard, I find the evidence of
    both witnesses indicate that the nature of the relationship was such that M.K. [the
    complainant] did not have a motive, either back in 2002-2003 or in 2016-2017 to
    make up this allegation against [the appellant].
In addition, as noted
    earlier, M.K. did not go to the police, they called him.


I find there is evidence of an absence of motive which is
    relevant in assessing M.K.s credibility
. [Emphasis added.]

[18]

Later
    in her reasons, the trial judge addressed the question of motive again:

While it is very important to remember that there is no onus on
    the defence to establish a motive,
the defence did make submissions about
    M.K. having a possible monetary motive and that there are many reasons people
    lie. A money motive was never put to M.K. in cross-examination.

The absence of any evidence of a financial motive to lie is
    therefore noted in the context of this defence submission and should be
    considered in relation to the earlier remarks in this decision in relation to
    motive. [Emphasis added.]

[19]

I agree with the appellant that the trial judge erred by
    transforming the absence of evidence of a motive to fabricate into a proven
    lack of motive, contrary to this courts decision in
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412.


[20]

Criminal
    trials are often concerned with issues of human motivation. The issue of motive
    may arise in different contexts. While not an essential element of an offence,
    the Crown may sometimes rely on motive as circumstantial evidence of guilt to
    prove identity and/or intent: see
Lewis v. The Queen
, [1979] 2 S.C.R.
    821, at pp. 833-838; and
R. v. Griffin
, 2009 SCC 28, [2009] 2 S.C.R.
    42, at para. 60. In this context, the cases underscore the significant
    difference between absence of proved motive and proved absence of motive:
R.
    v. White
(1996), 29 O.R. (3d) 577 (C.A.), at p. 608, affd [1998] 2 S.C.R.
    72, at para. 59.

[21]

An
    ulterior motive, or a motive to fabricate, on the part of a complainant may be
    equally important. From the defence perspective, proof of such a motive
    provides a compelling alternative to the truth of the allegations. From a
    prosecutors point of view, a proved absence of motive to fabricate provides a
    powerful platform to assert that the complainant must be telling the truth.

[22]

However,
    problems occur when the evidence is unclear  where there is no apparent motive
    to fabricate, but the evidence falls short of actually proving absence of motive.
    In these circumstances, it is dangerous and impermissible to move from an
    apparent lack of motive to the conclusion that the complainant must be telling
    the truth. People may accuse others of committing a crime for reasons that may
    never be known, or for no reason at all: see
R. v. J.V.
, 2015 ONCJ
    815, at para. 132;
R. v. Sanchez
, 2017 ONCA 994, at para. 25;
L.L.
,
    at para. 53;
R. v. T.G.
, 2018 ONSC 3847, at para. 30;
R. v. Lynch
,
    2017 ONSC 1198, at paras. 11-12.

[23]

Therefore,
    in this context too, there is a significant difference between absence of
    proved motive and proved absence of motive:
L.L.
, at para. 44, fn. 3. The
    reasons are clear. In
R. v. B. (R.W.)
(1993), 24 B.C.A.C. 1 (C.A.),
    Rowles J.A. explained, at para. 28: it does not logically follow that because
    there is no apparent reason for a motive to lie, the witness must be telling
    the truth. This point was made in
L.L.
, in which Simmons J.A. said, at
    para. 44: the fact that a complainant has no
apparent
motive to
    fabricate does not mean that the complainant has no motive to fabricate (emphasis
    added). See also
R. v. O.M.
, 2014 ONCA 503, 313 C.C.C. (3d) 5, at
    paras. 104-109; and
R. v. John
, 2017 ONCA 622, 350 C.C.C. (3d) 397, at
    para. 93.

[24]

In
    this case, the Crown at trial (and on appeal) relied on the uncontradicted
    evidence of a good relationship between the complainant and the appellant. However,
    this evidence must be placed in context. In describing his attitude toward the
    appellant, the complainant largely referenced their relationship in 2002-2003,
    roughly 15 years before the trial. The evidence of more recent interactions
    (i.e., at the plaza) was of limited value. According to the complainant, the
    last time such an interaction occurred was three years before the trial. The
    appellant could not recall any such interactions. It was clear that, by the
    time of trial, there was no relationship between the complainant and the
    appellant.

[25]

More
    importantly, 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:
White
, at p. 608;
L.L
.
,
    at para. 45;
John
, at para. 94. This state of affairs was not capable
    of enhancing the complainants credibility, as the trial judge did. At best, it
    was a neutral factor.

[26]

The
    trial judges error was compounded when she addressed the issue for a second
    time, in the passage reproduced above, in para. 18 of these reasons. The
    defence did not suggest that the complainant had a financial motive to falsely
    accuse the appellant, as the trial judge suggested. When defence counsel
    submitted that a witness may fabricate for many reasons, a financial motive
    was offered as a generic example. Defence counsel did not advance a specific
    allegation of a financial motive in this case. This explains why the suggestion
    was not put to the complainant in cross-examination.

[27]

Moreover,
    the trial judges reliance on the fact that the complainant was contacted by
    the police (instead of the opposite) was misplaced. The Crown elicited this
    information at the end of the complainants examination-in-chief. The issue was
    not pursued by defence counsel, for good reason. The evidence was prejudicial,
    suggesting that where theres smoke theres fire. It should not have been
    admitted. Moreover, it does not necessarily follow that being contacted by the
    police is inconsistent with a motive to fabricate. It certainly does not
    constitute evidence capable of establishing a lack of motive.

[28]

In
    conclusion, I am satisfied that the trial judges findings on the issue of
    motive formed an important part of her credibility assessment of the
    complainant. She used her finding of a proved absence of motive to enhance the
    credibility of the complainant, which was a central issue at trial. This amounted
    to a miscarriage of justice warranting a new trial.

(2)

Uneven Scrutiny

[29]

Given
    that there must be a new trial, it is not necessary to address the uneven
    scrutiny issue in any detail.

[30]

As
    Mr. Burgess acknowledged in his oral submissions, this is a difficult ground
    upon which to succeed. This steep incline is reflected in numerous decisions
    from this court: see e.g.,
R. v. Gravesande
, 2015 ONCA 774, 128 O.R.
    (3d) 111, at paras. 18-20;
R. v. Chanmany
, 2016 ONCA 576, 352 O.A.C. 121,
    at paras. 26-28, leave to appeal refused, [2017] S.C.C.A. No. 88;
R. v.
    Kiss
, 2018 ONCA 184, at para. 83;
R. v. Polanco
, 2018 ONCA 444,
    at para. 33, leave to appeal refused, [2018] S.C.C.A. No. 271; and

R. v.
    D.E.S.
, 2018 ONCA 1046, at paras. 15-16. The appellant must be able to
    point to something in the reasons or the record that suggests that differential
    standards of scrutiny were applied. This ground of appeal is not meant to be a
    vehicle for re-trying the credibility findings in an appellate court.

[31]

I
    accept that the trial judge may have found more aspects of the appellants
    testimony problematic when compared with the complainants account. However,
    this ground of appeal does not invite a quantitative analysis. Instead, this
    court will review the reasons as a whole to determine whether the trial judge
    approached the evidence with an open mind and dealt with conflicting accounts or
    inconsistencies in the evidence of both parties fairly. Standing alone, being
    disbelieved does not translate into uneven scrutiny.

[32]

The
    trial judge seized on numerous factors in the evidence of both witnesses,
    relating to events that happened 15 years earlier. An important factor in this
    analysis was that the complainant was a child at that time of the alleged
    incident. As the trial judge observed, as an adult witness testifying about
    childhood events, the complainants credibility should be assessed according to
    criteria applicable to adult witnesses, but the presence of inconsistencies,
    particularly as to peripheral matters such as time and location, should be
    considered in the context of the age of the witness at the time of the events:
    see
R. v. W.(R.)
, [1992] 2 S.C.R. 122, at p. 134. The trial judges
    reasons reflect this differential approach to the evidence of the complainant
    and the appellant. This factor goes a long way in explaining her assessments of
    their credibility.

[33]

I
    would dismiss this ground of appeal.

D.

conclusion

[34]

As
    mentioned at the beginning of these reasons, the appeal was allowed at the end
    of the oral hearing. The conviction on the sexual interference count was set
    aside, the conditional stay on the sexual assault count was lifted, and a new
    trial was ordered on both counts.

Released: LB MAY 7 2019

Gary Trotter J.A.

I agree. L.B. Roberts J.A.

I agree. David M. Paciocco J.A.


