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Criminal - Sexual Offences - General. R. v. R.S.
In R. v. R.S. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here brought against "convictions for sexually assaulting and sexually interfering with his stepdaughter".
The court considers 'absence of motive to fabricate', here as a credibility factor:[1] .... He argues that the trial judge erred in finding a proven absence of motive to fabricate or, in the alternative, if she found there was an absence of evidence of a motive to fabricate, that she improperly used it to bolster the complainant’s credibility. ....
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[3] We begin by noting that the trial judge rejected the appellant’s submission that the complainant had a specific motive to fabricate (i.e., punish him for stealing from her mother and for “ruining their family”). The trial judge found that the single thread of motive alleged by the appellant could not logically connect each of the disclosures in this case, one of which occurred before the family breakdown and another where, after disclosing the abuse to her mother, the complainant asked that nothing be done about it.
[4] The appellant argues that the trial judge went beyond finding an absence of evidence of a motive to fabricate and, in effect, impermissibly found a proven absence of a motive to fabricate.
[5] In our view, the trial judge did not find a proven absence of motive to fabricate; she found that there was no single motive that could explain all of the complainant’s disclosures, which was available to her.
[6] Nor did the trial judge improperly consider the absence of evidence of a motive to fabricate as part of her credibility assessment. The risk that arises in cases like this is that a trier of fact will give undue weight to the absence of evidence of a motive to fabricate or move directly from that finding to a conclusion that the complainant is telling the truth: R. v. R.K., 2023 ONCA 653, at para. 45. Although trial judges “must consider issues relating to motive to fabricate with care”, they are entitled to “consider an absence of evidence of a motive to fabricate, in the context of the evidence as a whole, as a factor relevant to credibility”: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 4; R. v. Polemidiotis, 2024 ONCA 905, 174 O.R. (3d) 359, at para. 59. That is what the trial judge did in this case. She found that the complainant did not fabricate the allegations of abuse in order to punish the appellant and, to the extent she took this into account when assessing the complainant’s credibility, she did not give it undue weight. It was just one of many factors she considered.
[7] The appellant argues that the fact the trial judge considered other factors in her assessment of the complainant’s credibility is not sufficient to demonstrate that the finding was not given undue weight. The underlying concern raised by the appellant is that the absence of evidence of motive to fabricate is not determinative of the truth of the complainant’s evidence because of the possibility of a hidden motive: R. v. Ignacio, 2021 ONCA 69, at para. 41. According to the appellant, the necessary implication of finding “no single motive” is that that the trial judge found there could have been no hidden motive.
[8] We reject this argument. Read in context, the trial judge’s reasons did not have the effect of excluding the possibility of a hidden motive. Nor was the trial judge obligated to instruct herself on the logical possibility of a hidden motive to be able to rely on the absence of evidence of motive to fabricate, among other factors, in concluding that the complainant was credible. The trial judge’s assessment of other factors in this case did not amount to a mere technicality to satisfy the legal test as the appellant suggests. . R. v. V. K.
In R. v. V. K. (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this of being "found guilty by a jury on three counts of sexual assault".
Here the court notes that "whether conduct is of a sexual nature is objective":[20] The test to determine whether conduct is of a sexual nature is objective. The question to ask is: “viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 11.
[21] The appellant argues that because M.D. conceded that she did not view what the appellant did as sexual in nature, it was not reasonable for the jury to view it that way. However, M.D.’s impressions are not determinative. It is important to place her testimony in its proper context, most notably the successful similar fact application, which permitted the jury to use the similarities across the counts when considering whether the unwanted massages were of a sexual nature. M.D.’s testimony that the appellant would massage her against her wishes while they were alone in the restaurant, when considered together with the evidence relating to the other counts, meant that it was open to the jury to find that the touching was sexual.
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