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Evidence - Credibility (5). R. v. E.O.
In R. v. E.O. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against the dismissal of a summary conviction appeal, this where the "appellant was convicted of two counts of sexual assault".
The court considered another difficult sex assault credibility-fabrication scenario, here compounded by issues of 'lack of embellishment':[2] In his appeal to the Superior Court of Justice, the appellant argued that the trial judge improperly bolstered the complainant’s credibility by reasoning that the complainant could have made more serious allegations and that this lack of embellishment made her allegations more likely to be true: R. v. Alisaleh, 2020 ONCA 597, at paras. 15-19; R. v. Kiss, 2018 ONCA 184, at paras. 52-53. The appellant further argued that the trial judge committed an additional error by using the complainant’s readiness to advance a criminal prosecution and endure the unpleasant rigours of a criminal trial as a reason to believe her evidence: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 87-92.
[3] In his reasons, the summary conviction appeal judge acknowledged these two potential problems with the trial judge’s reasons. The problematic wording appeared in the later portion of the trial judge’s reasons, where he was rejecting any suggestion that the complainant had a motive to fabricate the allegations. The trial judge had taken the appellant’s denial of the sexual assault allegations as an implied accusation that the complainant had fabricated the incidents of slapping. The summary conviction appeal judge appears to have accepted that this portion of the reasons could be interpreted as showing that:(1) The trial judge considered the lack of embellishment in the complainant’s allegations as bolstering her credibility; and
(2) The trial judge reasoned that the complainant was more credible because she exposed herself to the unpleasant rigours of a criminal trial, where she risked being scrutinized and perhaps humiliated in a public forum by having to testify about consensual intimate moments. [4] After noting these two potential problems, the summary conviction appeal judge, however, went on to dismiss the appeal. He explained that the trial judge’s use of the complainant’s lack of embellishment and of the fact that the complainant subjected herself to the unpleasantness of having to testify about consensual intimate moments did not “overcome the deference that findings of credibility by the trial judge are entitled to in the circumstances of this case.” The lack of embellishment was not, in the summary conviction appeal judge’s view, used as a “makeweight in the trial judge’s credibility analysis.”
[5] In this court, the appellant argues that the two potential problems identified and then discarded by the summary conviction appeal judge were akin to the errors identified in Alisaleh and J.C. and therefore constituted errors of law. Absent the application of the curative proviso, the errors should have resulted in an order for a new trial. The appellant argues that the summary conviction appeal judge therefore erred in dismissing the appeal without resorting to the curative proviso. Had the summary conviction appeal judge considered the test for applying the curative proviso, he would have concluded that the Crown could not meet its high burden of showing that, notwithstanding the legal errors, the verdict was inevitable.
[6] I would dismiss the appeal. As I will explain, the concerns identified by the summary conviction appeal judge with respect to the trial judge’s reasons did not constitute errors of law. The summary conviction appeal judge properly dismissed the appeal.
[7] I start with a review of the trial judge’s reasons. The trial judge correctly instructed himself on the law, including the burden of proof and the R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 framework. He then explained why he found the complainant to be credible and why he rejected the appellant’s evidence. The trial judge noted that the complainant readily acknowledged gaps in her memory and took care to testify accurately. She was not shaken on cross-examination. The trial judge also observed that the complainant did not embellish her evidence.
[8] After making the appropriate credibility findings, perhaps out of an abundance of caution, the trial judge went on to consider and reject any suggestion that the complainant’s allegations were a fabrication. It is in the trial judge’s discussion and rejection of any motive to fabricate by the complainant that the impugned passage is found. It reads as follows:In my view, if the complainant’s allegations are a fabrication, she would have come up with a better story than that which she testified. If the complainant wanted to make up false allegations against the accused, would she come up with a version that has her saying nothing to him about slapping her on the second occasion despite what she told him during the first incident. Would she come up with a fabrication that these events took place during consensual sex and foreplay? I think not. Why wouldn’t she simply accuse him of slapping her during an argument? Why risk being scrutinized and perhaps humiliated in a public forum by having to testify about consensual intimate moments? [9] Before the summary conviction appeal judge, and again in this court, the appellant argued that this paragraph shows that the trial judge used the complainant’s lack of embellishment and the fact that the complainant exposed herself to having to testify about consensual intimate moments to bolster her credibility. The appellant argued that such reasoning constituted errors of law under Alisaleh and J.C.
[10] Before turning to how the summary conviction appeal judge dealt with these issues, I observe that, in the impugned passage, the trial judge does not explicitly mention embellishment or exaggeration. Further, although the trial judge’s formulation is perhaps unfortunate, I do not view it as alluding to a lack of embellishment or exaggeration. Rather, the trial judge explains that if the complainant had been fabricating the allegations, she would have fabricated different allegations which did not occur during consensual sexual activity. In other words, the trial judge is simply assessing the plausibility of the complainant’s testimony in response to the suggestion that the appellant’s denial amounted to an allegation that the complainant fabricated her evidence.
[11] Even if the passage were to be read as a reference to the complainant not having embellished her evidence, as this court explained in Kiss, at paras. 52-53, there is nothing wrong with noting the fact that a witness did not embellish their evidence in a way that would compromise their credibility, so long as the lack of embellishment is not inappropriately taken as adding to the witness’s credibility. Read in context of the reasons as a whole, I am satisfied that, to the extent the passage could be read as a reference to the lack of embellishment, the trial judge considered it only with respect to whether the complainant had a motive to lie. It is well settled that the lack of embellishment may be considered for that purpose: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 5.
[12] As for the suggestion that the paragraph shows that the trial judge committed a J.C. error by finding the complainant more credible because she chose to pursue a complaint and subject herself to the unpleasant rigours of a criminal trial, I note that this is not what the paragraph says. The trial judge’s comments were with respect to what the allegations were, not with respect to the fact that the complainant made and pursued allegations. In other words, the trial judge was not commenting on the fact that the complainant was prepared to testify, but on the fact that the complainant testified about consensual intimate moments. The trial judge queried why, if the complainant were to fabricate allegations of non-consensual slapping, she would have them occur in circumstances such as these, where she would risk being scrutinized and humiliated by having to testify “about consensual intimate moments”. The trial judge was simply commenting on the plausibility of the complainant’s narrative.
[13] In any event, to the extent that there is ambiguity as to what the trial judge intended in this passage and that a possible alternate reading of the impugned passage would reflect improper reasoning by the trial judge, I note that, as the Supreme Court of Canada explained in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 74, trial judges are presumed to know the law. Where a trial judge’s reasons are open to multiple interpretations, a reading that is consistent with this presumption must be preferred over one that suggests that the trial judge erred: G.F., at para. 79. Credibility findings deserve particular deference: G.F., at para. 81. Credibility findings must be assessed in light of the presumption of the correct application of the law: G.F., at para. 82. A trial judge’s reasons must be read generously, as a whole, in light of this presumption: Gerrard, at para. 2.
[14] I turn now to the summary conviction appeal judge’s reasons and the issues raised in this court. As I have said above, the summary conviction appeal judge was correct in finding that the trial judge did not commit a legal error. I acknowledge, however, that at one point in his reasons, the summary conviction appeal judge appears to have accepted that the trial judge committed the Alisaleh and J.C. errors. The summary conviction appeal judge explained that “the trial judge does appear to have articulated improper reasoning as enhancing the complainant’s credibility” (emphasis added). However, in the end, the summary conviction appeal judge concluded that “[o]n reading the trial judge’s Reasons for Judgment as a whole, it is apparent that the complainant, [in the trial judge’s view], was entirely credible without enhancing her credibility by improperly relying upon her lack of embellishment. Her credibility had been firmly established in his view.”
[15] Although the summary conviction appeal judge’s analysis for dismissing the appeal could have been expressed more clearly, when it is read in context, and in light of the trial judge’s reasons read as a whole, it is apparent that contrary to what the appellant argues, he did not accept that an Alisaleh or a J.C. error was committed. He correctly concluded that the trial judge had not erred. As no legal error was found, there was no need to apply the curative proviso.
[16] In conclusion, the summary conviction appeal judge correctly determined that the credibility findings were clearly made by the trial judge quite independently from the analysis he carried out in the impugned portion of the reasons. The concerning paragraph did not, as the appellant suggests, reference the complainant’s lack of embellishment of her allegations and, to the extent that the paragraph can be read as referencing the lack of embellishment, it was not used as a makeweight in favour of the complainant’s credibility contrary to the principles outlined in Alisaleh. Nor did the paragraph denote that the trial judge found the complainant more credible because she exposed herself to the unpleasant rigours of a criminal trial. The trial judge did not use the fact that the complainant was willing to endure the trial as a reason to reject any suggestion that she had a motive to fabricate. The summary conviction appeal judge was correct in finding that the trial judge committed no errors of law and there was no need to apply the curative proviso. . R. v. Alhaddad [he said she said]
In R. v. Alhaddad (Ont CA, 2026) the Ontario Court of Appeal considered a 'he said she said' criminal case, where the central evidentiary issue was credibility:[4] This was a credibility case. The trial judge applied the correct legal principles in assessing the witnesses’ evidence. He found the complainant credible. He had concerns with the appellant’s credibility. He found that his evidence and the evidence as a whole did not leave him with a reasonable doubt. He ultimately found that, in accordance with R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, his acceptance of the complainant’s evidence led him to reject the appellant’s evidence and to conclude that he was satisfied of his guilt beyond a reasonable doubt.
[5] This court owes the trial judge’s findings of credibility significant deference. We are satisfied that any misstatements of the complainant’s evidence were not material to his analysis or to the outcome. In addition, the trial judge was not required to address all inconsistencies in the complainant’s evidence. He grappled with some of these inconsistencies and was satisfied that these were either explained by the fact that English was not the complainant’s first language or were not significant enough to detract from his overall assessment of the complainant’s credibility. . R. v. Berg [reasons/JJRD/credibility]
In R. v. Berg (SCC, 2026) the Supreme Court of Canada considered the leading JJRD case regarding the adequacy of reasons for decision, and it's interaction with both credibility and reasonable doubt [as in WD] - this in a sexual assault context:[3] The trial judge rejected Mr. Berg’s account. He noted that he had no reason to reject Mr. Berg’s testimony when considered in isolation. Nevertheless, he went on to state: “I reject Mr. Berg’s account because I accept [the complainant’s] testimony” (A.R., vol. II, at p. 157). This statement would become the subject of much of the debate on appeal and, standing alone, would be problematic. Yet, a functional reading of the trial judge’s reasons clearly shows that he did not engage in a credibility contest by dismissing Mr. Berg’s testimony solely because he preferred that of the complainant. Instead, the trial judge analysed Mr. Berg’s account based on the totality of the evidence, alongside the complainant’s credible testimony and the corroborating circumstantial evidence, and only then was satisfied of Mr. Berg’s guilt beyond a reasonable doubt.
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[6] We write to provide guidance on, and correct potential errors that may arise from, the application of the principles flowing from the Court of Appeal for Ontario’s decision in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37. Reliance on J.J.R.D. has become commonplace for trial judges faced with conflicting testimonial accounts. It is often used to resolve situations where neither of two different testimonial accounts contain any frailties standing alone.
[7] J.J.R.D. involved a claim of insufficiency of reasons. In that case, the trial judge convicted the accused, even though his testimony had no obvious flaws standing alone, because the complainant’s testimony and the circumstantial evidence were sufficiently compelling to reject his account. On appeal, Doherty J.A. explained that the trial judge’s line of reasoning was adequate and permitted effective appellate review. In a now oft-cited passage, at para. 53, he observed:An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [8] The trial judge in this case drew on this passage in structuring his W. (D.) analysis and rejecting Mr. Berg’s testimony (R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742). The dissenting justice at the Court of Appeal held that the trial judge failed to abide by J.J.R.D. and erred by rejecting Mr. Berg’s testimony without a “considered and reasoned acceptance” of the complainant’s evidence.
[9] As a general rule, trial judges should not rely on J.J.R.D. when structuring their W. (D.) analyses or when providing W. (D.) directions to a jury. J.J.R.D. is a case about appellate review for sufficiency of reasons and it does not purport to set out a formula for performing a W. (D.) analysis. It was intended to apply to appellate review of trial decisions when assessing whether the trial judge’s reasons were sufficient to permit appellate review, not to be applied by trial judges themselves. We agree with Paciocco J.A. in R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, at para. 32, when he observed:.... D. (J.J.R.) was a sufficiency of reasons case. It was not a jury instruction case, nor even a case about the content of the W. (D.) formula. The issue was whether the reasons given by a trial judge, sitting alone, were sufficient to permit effective appellate review: see D. (J.J.R.), at paras. 1-2. That is why Doherty J.A. describes “a considered and reasoned acceptance . . . of the truth of conflicting credible evidence” as an “explanation for the rejection of an accused’s evidence”. The case is about whether the trial judge explained the conviction by offering a considered and reasoned basis . . . . It does not purport to offer a formula for overcoming facially unassailable exculpatory evidence. [Emphasis deleted.] [10] When invoked in a trial setting, J.J.R.D. may mislead the trier of fact to think that they may reject the accused’s account solely based on a “considered and reasoned” acceptance of the complainant’s testimony.[1] This raises the spectre of turning trials into credibility contests — the very error W. (D.) was designed to prevent. The presumption of innocence means that a guilty verdict cannot rest only on whether the trier of fact believes the Crown’s evidence or finds it more plausible (W. (D.), at p. 757; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9).
[11] Instead, a conviction must always rest on proof beyond a reasonable doubt. And proof beyond a reasonable doubt demands more than a “considered and reasoned acceptance” of the complainant’s evidence. Indeed, in J.J.R.D., Doherty J.A. was characteristically careful in his formulation: a trial judge can reject an accused’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” (para. 53 (emphasis added)). Read in full, this passage maintains that appellate courts should ensure that trial judges have considered the conflicting evidence — whether it is only the complainant’s testimony or also includes circumstantial evidence — and explained why it meets the high standard of proof beyond a reasonable doubt. It is not, by contrast, an invitation for trial judges to enter convictions solely based on a “considered and reasoned” acceptance of a complainant’s testimony.
[12] In this case, the trial judge did not use J.J.R.D. to resolve a credibility contest, and therefore made no legal error. However, caution is warranted to ensure that J.J.R.D. is not invoked in a manner that short-circuits W. (D.). Accordingly, the appeal is dismissed. . R. v. Vannoordennen
In R. v. Vannoordennen (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "two counts each of sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), sexual assault (s. 271), and making child pornography[2] (s. 163.1(2)), as well as single counts of invitation to sexual touching (s. 152) and sexual exploitation (s. 153(1)(a))".
Here the court considers the propriety of the Crown asking "an accused person to comment on the credibility of their accuser(s)":[33] I agree with Mr. Socka for the appellant, that this line of questioning was improper. The Crown is not permitted to call upon an accused person to comment on the credibility of their accuser(s): R. v. D.M., 2022 ONCA 429, 162 O.R. (3d) 444, at paras. 68-69; R. v. G.H., 2020 ONCA 1, 61 C.R. (7th) 365, at paras. 24-25. One of the main reasons for this rule is that it tends to shift the burden of proof to the accused person and undermines the presumption of innocence. It was open to the Crown to make submissions to the trial judge about whether J.H. appeared sympathetic or compassionate in relation to the appellant, but the appellant’s opinion on it was not probative of anything. . Okafor v. Ontario College of Teachers [tribunal]
In Okafor v. Ontario College of Teachers (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a teacher's appeal [under s.35(1) of the Ontario College of Teachers Act], here brought against "the decision of the Discipline Committee of the Ontario College of Teachers .... which found her guilty of professional misconduct ..." and from "the Discipline Committee’s penalty decision ... that ordered ... a five-month suspension, and costs in the amount of $60,000.00".
Here the court considers the potential role of self-interest in the assessment of credibility:[59] The Appellant submits that the Discipline Committee erred in law in placing undue weight on her interest in the outcome when assessing her credibility.
[60] In R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, Charron J. stated at paras. 11-18:[11] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness’s testimony. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessing credibility.
[12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome.
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[14] In most cases, I would agree with counsel that this factor is simply unhelpful and, as a general rule, triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal. However, I would not adopt an absolute rule as proposed, for the following reasons.
[15] An absolute rule prohibiting the trier of fact from considering that an accused may have a motive to lie in order to secure an acquittal, regardless of the circumstances, would artificially immunize the accused in a manner inconsistent with other rules of evidence that provide special protection to the accused. ...
[16] An absolute rule as proposed would also be contrary to established principles of appellate review. It should now be regarded as trite law that a trial judge’s reasons should be read as a whole, in the context of the evidence, the issues and the arguments at trial, together with “an appreciation of the purposes or functions for which they are delivered”
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[18] … At the end of the day, the determining question is whether the trial judge’s comments undermined the presumption of innocence. [Citations omitted.] [Emphasis in original.] [61] Although Laboucan is a criminal case, the same logic applies to someone accused of professional misconduct. Accordingly, whether the Discipline Committee erred in law by noting that the Appellant had an interest in the outcome of the hearing in the context of assessing her credibility requires that this comment be considered in light of the entire decision.
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