



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. S.S.S., 2021 ONCA 552

DATE: 20210803

DOCKET: C67462

Feldman, Lauwers and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.S.S.

Appellant

Anil K. Kapoor and Victoria M. Cichalewska,
    for the appellant

Vallery Bayly, for the respondent

Heard: February 17, 2021 by video conference

On appeal from the convictions entered
    by Justice Sandra Caponecchia of the Ontario Court of Justice on May 13, 2019,
    and from the sentence imposed on October 8, 2019.

Feldman J.A.:

A.

INTRODUCTION

[1]

The appellant appeals his convictions for sexual
    assault and sexual interference, and seeks leave to appeal his sentence of six
    months imprisonment plus two years probation, along with various ancillary
    orders, including one under s. 161 of the
Criminal Code
, R.S.C. 1985, c. C-46
.

[2]

The complainant was a young girl, eight or nine
    at the time of the alleged offences and eleven at trial. The appellant was a 20-year-old
    university student at the time of the alleged offence. The families of the complainant
    and the appellant were close. Sometime between February 1 and March 31, 2017,
    the complainant had a sleepover at her friend P.s home. P. is the appellants
    younger sister. The complainant said that sometime during the sleepover, when P.
    was in the shower and she was in a chair in the kitchen, the appellant came in,
    kissed her, and touched her breasts and vagina over her clothes. She said she
    screamed as the appellants parents returned home from a shopping trip.

[3]

The appellant testified, denying the
    complainants claim. He stated that he remembered the weekend the complainant
    slept over and that he was never alone with her.

[4]

The appellant raises a number of grounds for the
    conviction appeal, most of which allege errors by the trial judge in her
    assessment of the credibility and reliability of the complainant and the
    appellant. In my view, 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. I
    would accordingly order a new trial.

B.

Background

(1)

Evidence of the complainant

[5]

The complainants evidence was given in two
    forms. She gave a videotaped statement to the police, several months after the
    incident, once her mother made the decision to report it. In addition, she
    testified at the trial. Her mother, her father, and her upstairs neighbour,
    whom she referred to as her aunt, also testified, essentially about how they learned
    of the incident, how the incident was reported to the police, and what subsequent
    interactions the complainant and her mother had with the appellants family.

[6]

The complainant said that the incident took
    place while she was staying at the appellants house. The appellants father
    had picked her up on a Friday and taken her to their house for a sleepover with
    P. According to the complainant, the people at the house were P, the appellant,
    the appellants parents, and H., who she referred to as P.s brother. The
    complainant testified in cross-examination that she did not see the appellant
    before she went to bed that night. She ultimately could not pinpoint the timing
    of the incident, but she said it occurred while she was in the kitchen on a
    wheelie-chair. At the time, P. was taking a bath, H. was at work, although
    she was not sure if he was at home, and the appellants parents were out at a
    shop.

[7]

The complainant testified that the appellant
    came downstairs. She said the appellant kissed her on the lips, tickled her
    on her breasts, and patted her private part over her underwear after he moved
    her pants partway down. She said she screamed as the appellants parents returned
    home from their shopping trip. She told them what happened, they asked her a
    bunch of questions, and then they sent her upstairs and asked the appellant
    questions.

[8]

In cross-examination, defence counsel asked the
    complainant about what occurred the next morning. She agreed that after she
    woke up, she played in the kitchen with P.s mother and ate oranges. This
    accorded with the testimony of the appellant. The complainant also agreed that
    at some point, her mother arrived, and that the appellant came downstairs, said
    hello to her mother, and then went back upstairs. She similarly saw H. come
    down for lunch and go back to his room. She acknowledged that she had been guessing
    when she testified to H.s whereabouts during the incident.

[9]

The complainant described how she felt close to
    P. and how P. had helped her when she was bullied. When the complainants
    mother picked her up from the sleepover, she told her she had had a great time
    and wanted to visit P. again.

[10]

In both the police statement and
    cross-examination, the complainant stated that she liked to scare her mother by
    telling her things that were not true. However, in cross-examination, she
    denied that she had made up the allegations against the appellant. The
    complainant also admitted that she was not sure whether the appellants parents
    went to the store the day she arrived or the next day. She acknowledged that
    she did not see the appellant before she went to bed, which was on the day she
    arrived.

(2)

The evidence of the complainants mother

[11]

The evidence of the complainants mother focused
    on the relationship she and her daughter had with the appellants family before
    and after the incident. She explained that she had known the appellants father
    since the age of two, and that she was close to both him and the appellants
    mother. She permitted her daughter to sleep over at their house because the
    complainant enjoyed spending time with the appellants sister, P. She recounted
    that the sleepover took place sometime in February or March of 2017. Her daughter
    told her about the incident two to four days later, after which point she did
    not let the complainant have another sleepover at P.s house, and sent the
    complainant to stay with her aunt whenever the appellants family visited.

[12]

In cross-examination, the complainants mother was
    asked why she had not cut ties with the appellants family after her daughters
    disclosure to her. She responded that she had tried to reduce contact and that
    she trusted the appellants parents who had been good to her in the past,
    having taken her in when she immigrated to Canada and was pregnant with the
    complainant. She repeatedly denied the suggestion that she continued to
    associate with the appellants family because she did not believe her daughter.

(3)

The evidence of the appellant

[13]

The appellant testified. He recalled the weekend
    that he came home from his university for reading week and the complainant was
    sleeping over at his house. He stated that he got home late on the Friday
    night, after the complainant had gone to bed, and that he did not see her until
    the next morning. He denied that he was ever alone with the complainant. He was
    only in the kitchen with the complainant when other adults were there as well. He
    also denied all of her allegations that he touched her and kissed her.

[14]

The appellant stated that after the sleepover,
    he saw the complainant and her family members on more than one occasion. He did
    not believe that anyone acted differently towards him.

[15]

None of the appellants family members
    testified.

(4)

The trial judges findings

[16]

The trial judge believed the complainant. She
    rejected the appellants evidence because she accepted the complainants
    evidence beyond a reasonable doubt, applying
R. v. J.J.R.D
. (2006),
    215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No.
    69, and
R. v. R.D.
, 2016 ONCA 574, 342 C.C.C. (3d) 236. In addition,
    the trial judge did not find the appellants evidence to be compelling in form
    or content, for two reasons: (1) the appellants demeanor had changed under
    cross-examination; and (2) she found it incredible that he remembered exactly
    which weekend his sisters friend slept over, when he came home from university
    regularly on the weekends at different hours, and since two years had passed
    between the incident and his trial. The trial judge acknowledged, however, that
    aside from those frailties, the appellants blanket denial did not have any
    flaws. Nevertheless, for the trial judge, it did not raise a reasonable doubt.

C.

Issues

[17]

The appellant raises five issues on the
    conviction appeal. Three focus on alleged errors in the credibility assessments,
    including the trial judges finding that the complainant had no motive to
    fabricate, one submits that the trial judge misapplied the standard of proof,
    and one challenges the trial judges ruling on the admission of third-party
    records.

[18]

As I would order a new trial based on the error
    in the trial judges finding of no motive to fabricate, it is only necessary to
    address that issue and the third-party records issue.

D.

ANALYSIS

(1)

Motive to Fabricate

(a)

Overview

[19]

The trial judge found that she was satisfied
    beyond a reasonable doubt of the credibility and reliability of the complainant.
    One of the factors the trial judge considered in the portion of her analysis
    where she reached this conclusion was the complainants lack of motive to
    fabricate. She found that not only was there no evidence of motive to fabricate
    or animus, but that it was contrary to the interests of the complainant and her
    mother to come forward, and the fact that they did demonstrated how the
    complainant had no motive to fabricate. The trial judge used that finding as a
    make-weight to enhance the complainants credibility.

[20]

The trial judge addressed the issue of motive to
    fabricate in the following two paragraphs of her reasons:

[164] I have taken into consideration that
    there is no evidence of a motive to fabricate or animus in this case. To the
    contrary, by coming forward the complainant stood to jeopardize her friendship
    with the defendants sister. The complainants mother risked the close
    relationship and support of the defendants parents, both of whom she
    considered family.

[165] The existence or absence of a motive to
    fabricate is a relevant factor to be considered. I acknowledge that when
    dealing with the issue of a complainants motive to fabricate, it is important
    to recognize that the absence of any evidence of motive to fabricate is not the
    same as absence of motive to fabricate. It is dangerous and impermissible for
    me 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. The burden
    of production and persuasion is upon the prosecution and an accused need not
    prove a motive to fabricate on the part of a principal Crown witness.
    [Footnotes omitted.]

[21]

There are three errors in the trial judges
    approach. The first is a factual error, while the other two are legal errors.
    The errors are as follows: (1) there was no evidence from the complainant that
    she believed coming forward would jeopardize her friendship with P.; (2) the
    fact that the complainants mother did not want to undermine her relationship
    with the appellants parents in no way supports the credibility of the
    complainant  it is irrelevant to her credibility; and (3) even if the trial
    judge only found no evidence of motive to fabricate, treating the lack of
    evidence of motive to fabricate as a factor in assessing the credibility of the
    complainant in this case amounts to an error of law, because it had the effect
    of putting an onus on the appellant to disprove that the complainant had no motive
    to fabricate.

(b)

How the issue was raised at trial

[22]

The issue of motive to fabricate was raised in
    closing argument by defence counsel at trial (not appeal counsel). Defence counsel
    first submitted that there was evidence of motive to fabricate because the
    complainant had mentioned in her police statement and cross-examination that
    she would tell her mother stories that were not true. After a discussion between
    counsel and the trial judge regarding that evidence, the trial judge asked
    defence counsel, So, what are you saying is the motive to fabricate here? Defence
    counsel responded that the appellant did not have to prove motive to fabricate,
    but then clarified his initial submission by saying: Where I meant  I guess
    the  the better word of saying, theres evidence here from the complainant
    that shes made up this story. I  I guess it[s] better to say it that way as
    opposed to motive. The clarification served to withdraw his initial submission
    on the motive to fabricate.

[23]

Despite that clarification, Crown counsel at
    trial (not appeal counsel) made her own submission that there was no motive to
    fabricate and no animus, and that to the contrary, on the totality of the
    evidence, there was a motive to tell the truth, i.e., not to fabricate. There
    was no plan of revenge, the complainants mother continued to see the
    appellants family, she initially did not report the incident to police, she
    still respected the appellants parents, and she did not want to destroy her close
    relationship with them.

[24]

The effect of these submissions was that while the
    defence was not taking the position that the complainant had a motive to
    fabricate, the Crown asserted that the complainant was credible, in part,
    because she had no motive to fabricate. The trial judge accepted the Crowns
    submission.

(c)

Errors in the trial judges reasoning

[25]

Paragraphs 164 and 165, quoted above, are the
    trial judges response to counsels submissions. I interpret paragraph 164 as a
    finding by the trial judge that there was evidence of no motive to fabricate,
    i.e., there was motive on the part of the complainant and her mother not to
    come forward. The trial judge took this finding into consideration in concluding
    that the complainant must be telling the truth, and determining that she
    believed the complainant beyond a reasonable doubt.

[26]

However, the trial judge erred by so doing.
    First, there was no evidence to support the trial judges 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
    complainants mother onto the complainant, a young child.

[27]

Second, the trial judge relied on the mothers desire
    to maintain a good relationship with the appellants family to bolster the
    credibility of the complainants account. That was an error of law. The
    mothers motive cannot and does not speak to the credibility of the complainants
    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 complainants credibility. Finding
    no motive to fabricate amounted to a factual error that was not available on
    the evidence. As explained above, the complainant was never asked about motive
    to fabricate or any concern that coming forward could jeopardize her friendship
    with P. In cross-examination she said she did not disclose her allegation to P.,
    but she was not asked about her reason(s) for that decision. The question
    appeared to be part of a series of questions intended to suggest that the incident
    did not actually occur, as opposed to suggesting that the incident did occur, but
    that the complainant did not want to tell P. about it because she was afraid of
    ruining their friendship. The trial judge also based her finding that the
    complainant had no motive to fabricate on her perception that the complainants
    mother believed that she could jeopardize her relationship with the appellants
    family if the complainant came forward. This was a significant error because
    the mothers motive or lack thereof cannot be attributed to the daughter.

[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 complainants 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.

(d)

The impact of
Ignacio

[32]

At the oral hearing of the appeal, counsel were
    asked to provide written submissions on the effect of this courts recent decision
    in
R. v. Ignacio
, 2021 ONCA 69, 70 C.R. (7th) 134, leave to appeal
    refused, [2021] S.C.C.A. No. 127, on the motive to fabricate issue here. In
Ignacio
,
    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.

[33]

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.

[34]

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.

[35]

Ignacio
is
    distinguishable from this case on the factual finding. Because
Ignacio
deals 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, its
    result is not applicable to this case.

[36]

However,
Ignacio
is also
    distinguishable because there, 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.

[37]

Here, the issue was raised only by the Crown, who
    argued no motive to fabricate rather than no evidence of motive to fabricate. The
    Crown did not submit that if the court failed to find no motive to fabricate,
    but only found no evidence of a motive to fabricate, that it could and should use
    the absence of evidence of motive to fabricate to add weight to the
    complainants testimony.

[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.
[1]
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 complainants credibility.

[39]

The trial judges 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
    complainants credibility was the main reason she rejected the appellants 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 judges error requires a new trial.

(2)

Third-Party Records

[40]

After the appellant was charged with the
    offences before the court, the Childrens Aid Society (CAS) sent a letter informing
    him that an investigation had been conducted into whether the complainant was
    in need of protection, and that the file had been subsequently closed. At trial,
    the appellant sought production of the CAS record as it related to the
    appellant and the complainant.

[41]

The trial judge fully considered the defence
    request in the legal context prescribed by the
Criminal Code
and explained
    by the case law, beginning with
R. v. Mills
, [1999] 3 S.C.R. 668.
Mills
sets out the two-stage process governing the release of s. 278.1 records. At
    the first stage, the court decides whether the accused has established that the
    record is likely relevant to an issue at trial or to the competence of a
    witness to testify. If so, then the record is produced to the trial judge, who
    looks at the record in the absence of the parties, and if necessary, holds a
    hearing to determine its likely relevance and whether its production is
    necessary in the interests of justice.

[42]

Here, the trial judge concluded that the appellant
    had not satisfied the first stage, i.e., that the record was likely relevant.
    She therefore did not need to proceed with the next steps of the process.

[43]

At trial, the appellant relied on the reasons
    enumerated in ss. 278.3(4)(a), (c), (d), (e) and (k) of the
Criminal

Code
to establish likely relevance, based on the following three statements in the
    CAS letter:

1.
CAS investigated a report that the defendant engaged in sexual
    activity with a child while in a care giving role.

2.
The concern that the defendant was engaged in abusive sexual
    activity with a child while in a care giving role has not been verified.

3.
The society was unable to verify the concerns as it was found that
    you were not in a caregiver role of the child at the time of the alleged incident.

[44]

Based on these statements, the appellant argued
    that the record was necessary to make full answer and defence because it
    established that (1) witnesses were interviewed by the CAS, and their
    statements could be used to impeach their credibility; (2) the complainants allegation
    was not verified by the CAS; and (3) material representations were made to the
    CAS by the complainant or a witness.

[45]

The trial judge found that the defence had not
    met its onus for three reasons. First, the letter did not say that the CAS had
    found no merit in the complainants allegation, but only that it could not
    verify that the appellant was in a caregiving role at the time of the incident.
    Second, there was no basis to conclude that the CAS had interviewed the
    complainant or other Crown witnesses. Third, even if the CAS record contained statements
    from the complainant or other Crown witnesses, the defence had the ability to
    obtain the same evidence from other sources. In particular, the appellant had
    access to members of his family who were at home with him during the alleged
    incident, and to the statements provided by the complainant and the other Crown
    witnesses.

[46]

On appeal, the appellant argues that the trial
    judge erred in the likely relevance analysis by treating the CAS record as having
    the same degree of privacy protection as counselling records.

[47]

In
Mills
, at paras. 136-137, the Supreme
    Court held that the nature of the records provides trial judges with the
    informational foundation to assess the privacy interest at issue. Counselling
    records have been recognized as extremely private because of the trust involved
    in the counselling relationship and the subjective nature of the disclosures.

[48]

In contrast, the record at issue here was the
    result of a targeted CAS investigation. If the complainant was interviewed, it
    was with respect to the very incident that is the subject of the charges
    against the appellant. The trial judge considered this same argument by the
    defence, regarding the lower level of privacy in CAS records than in counselling
    records, in the context of whether production was necessary in the interests of
    justice. The trial judge appeared to reject the submission, observing that CAS
    records regarding an alleged sexual assault can contain very private
    information about a complainant and their family. Nevertheless, the trial judge
    concluded that had she found likely relevance, then in the interests of
    justice, she would have been inclined to order the production of the CAS record
    for inspection by the court given the narrow scope of the request for records
    only involving the defendant.

[49]

I would accept the submission of the appellant.
    Given that any statement by the complainant to the CAS, if she made one, would
    have related to the allegations in this case and would not have been of a
    therapeutic nature, the privacy interest in the record is not as high as in counselling
    records. If there was any such statement, it was reasonably possible that it
    would be logically probative of an issue at trial. In those circumstances, the
    trial judge stated that had she found likely relevance, she would have ordered
    production for review by the court in the interests of justice. In my view, that
    is the correct approach for the new trial.

E.

Conclusion

[50]

For the above reasons, I would allow the appeal,
    set aside the convictions, and order a new trial.

Released: August 3, 2021 K.F.

K. Feldman J.A.

I agree. P. Lauwers JJ.A.

I agree. Gary Trotter J.A.





[1]

In
R. v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 534, at
    para. 25,
Trotter J.A.
observed that the lack of evidence of a motive to
    fabricate should be used as a neutral factor for assessing the credibility of
    the complainant. Paciocco J.A. reiterated the same point in
R. v. S.H.
,
    2020 ONCA 34, at para. 11:

[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
    court clarified the reasoning for this principle of law in
R. v. A.S.,
2020 ONCA 229, at paras. 58-60:

[58] Where, as here,
    a suggested motive to mislead is disproved, the testimony is preserved from
    being impugned by such motive. When that suggested motive is disproved, it is
    as though the suggested motive is knocked off of the scales.

[59] However,
    affirmative weight cannot properly be added to the scales in favour of the
    testimony of a witness unless there is a proved absence of motive on the part
    of that witness: see, generally,
R. v. Bartholomew
, 2019 ONCA 377, 375
    C.C.C. (3d) 534, at paras. 22-23;
R. v. M.B.
, 2011 ONCA 76, 267 C.C.C.
    (3d) 72, at paras. 30-32;
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412,
    at paras. 16, 44. Disproving a single suggested motive to mislead  such as a
    desire to win custody and access  does not prove the absence of
any and all
motives to mislead.

[60] Accordingly, the
    trial judges rejection of the sole motive considered for the complainants
    testimony cannot add affirmative weight supporting the complainants claim that
    she was not consenting. It is not capable in law of being a makeweight
    affirmatively supporting her testimony. [Emphasis in original.]


