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Evidence - Embellishment. 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. 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 credibility effect of a witness' 'lack of embellishment':Lack of Embellishment
[39] The trial judge mentioned lack of embellishment in relation to both complainants. With respect to J.H., she said:[J.H.] gave his evidence in a straightforward way, recounting details of sexual encounters he had with the accused starting when he was in grade six or seven and which continued while [he] was in high school. He was candid about his drug and alcohol abuse. I did not sense that he embellished or overstated his evidence. He did not exaggerate the number of encounters he and the accused had. For example, he did not testify that sexual contact occurred on every occasion that they were together. He was candid to say in examination in-chief that he could not remember the very first time, although in cross-examination he said he believed it had occurred in the limousine. He similarly testified that the accused took photographs of him, but he did not exaggerate how often. A handful of times, he said. [Emphasis added.] [40] As for I.H., the trial judge said he “also gave his evidence in a straightforward way. Like his brother, he did not exaggerate or embellish the number or detail of his encounters with the accused.”
[41] These types of references can sometimes be problematic. As the Supreme Court of Canada said in R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 5:[L]ack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie. [42] In R. v. Kiss, 2018 ONCA 184, Paciocco J.A. held, at para. 53:[T]here is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness' evidence, or that the evidence stood up to cross-examination. [43] The trial judge’s references to lack of embellishment were appropriate and consistent with the approach in Kiss. She made general observations about the evidence of both complainants. Reading her reasons as a whole, she did not cross the line and use this factor as a makeweight in favour of credibility. Moreover, at trial, the appellant alleged that both complainants had various motives to lie and that the allegations were fabricated. As Gerrard makes clear, lack of embellishment may be relevant to this issue. It would have been better had the trial judge made an explicit link between these two factors. Nonetheless, trial judges are presumed to know the laws of evidence. I am not persuaded that she erred in relying on this factor. . R. v. J.F.
In R. v. J.F. (Ont CA, 2025) the Ontario Court of Appeal considered the evidentiary issue of 'embellishment':[9] With respect to the second ground of appeal, the trial judge made no error in considering the complainant’s “lack of embellishment” as a factor in assessing her credibility. The defence put it to the complainant in cross-examination and argued in closing that she had lied in her allegations to the police and was exaggerating in order to get the appellant arrested and out of the family home. The defence, in effect, was arguing that the complainant should be disbelieved because she had a motive to lie and was in fact lying. There was nothing untoward about the trial judge rejecting that submission and concluding that the complainant was not embellishing her evidence: R. v. J.M., 2025 ONCA 597, at para. 13.
[10] On other occasions, what the trial judge referred to as a lack of embellishment would have been better characterized as the complainant’s willingness to make admissions that were against her interest, in that they might have tended to make her look less believable. For example, the complainant accepted that she also drank and used drugs, was volatile in her interactions with the appellant, and had concealed from the appellant that she had taken out a student loan which impacted household finances. This was not what Moldaver J. cautioned against in R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 5, of simply believing a witness because her evidence is free of exaggeration. . R. v. D.W.
In R. v. D.W. (Ont CA, 2024) the Ontario Court of Appeal considered the role of testimonial 'embellishment' as a factor in witness credibility:[20] At para. 5 of the R v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, the Supreme Court held that while the lack of embellishment cannot be used to bolster a complainant’s credibility, it (1) may be relevant in assessing credibility and (2) can be considered as a factor in assessing whether the complainant had a motive to lie. This court expressed a similar view at para. 53 of R. v. Kiss, 2018 ONCA 184, saying:[T]here is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. [21] When the trial judge’s reasons are read in context and as a whole, it is clear he used the complainant’s lack of embellishment appropriately. While relevant to his assessment of the complainant’s credibility, he did not use it as a makeweight in favour of it. Further, the trial judge’s reference to a lack of embellishment was a factor he considered in assessing whether the complainant had a motive to lie, as the appellant had alleged. As noted above, this is permissible: Gerrard, at para. 5. . R. v. J.F.
In R. v. J.F. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here commenting on the role of 'embellishment' in evidence:[31] With respect to the sexual assault conviction, the appellant again notes that this portion of the complainant’s evidence was not corroborated by the photos, and he asserts that the trial judge, in saying that the complainant’s evidence about the sexual assault was brief and to the point but appeared free of exaggeration, impermissibly used the lack of exaggeration as a factor to support the complainant’s credibility. The appellant refers to this court’s decision in R. v. Kiss, 2018 ONCA 184, at paras. 52-53, as authority that, while the presence of exaggeration or embellishment can undermine credibility, its absence tends to be a neutral factor, and R. v. Alisaleh, 2020 ONCA 597, at para. 16, where this court observed that “it is wrong to reason that because an allegation could have been worse it is more likely to be true”. According to the appellant, the trial judge reasoned in this way, concluding that, since the sexual assault allegation could have been worse, it was more likely to be true.
[32] I do not agree that the trial judge improperly relied on the complainant’s lack of exaggeration in his assessment of her credibility.
[33] Provided that it is not used as a “makeweight in favour of credibility”, it is appropriate for a trial judge to note that a witness has not embellished their evidence. Like the observation that there were no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination, this is not a factor showing credibility, but explains why a witness has not been found to be incredible: Kiss, at para. 52. And, as Moldaver J. explained in R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, while the lack of embellishment or exaggeration cannot be used to bolster a complainant’s credibility, it may properly be considered as a factor in assessing whether the witness had a motive to lie: at para. 5.
[34] In this case the appellant relied on an alleged motive to lie about the incidents of violence. He claimed that the complainant, who was jealous and angry, had threatened he would go to jail and never get to see his son again, and that she followed through with her threats when she went to the police. The fact that the complainant had not exaggerated her evidence about the sexual assault was properly considered by the trial judge. In any event, unlike in Alisaleh where the trial judge had erred in using lack of embellishment as one of two important factors to “enhance” the complainant’s credibility, when the trial judge’s reasons are considered as a whole it is clear that he did not accept the sexual assault allegation simply based on a lack of exaggeration. The digital penetration was part of a prolonged attack on the complainant alleged to have occurred on January 27, which was denied in its entirety by the appellant. The trial judge’s acceptance of the complainant’s evidence about the sexual assault, as well as all of the other offences that took place that day, was informed by his observations that her evidence was “rational”, “compelling”, “logical and convincing,” and (in respect of the physical assaults) “powerfully consistent” with the photos taken by the police.
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