In R. v. R.C., 2021 ONCA 582, August 27, 2021, the accused was convicted of the offence of sexual assault in relation to LT. He appealed from conviction, arguing (1) that the trial judge erred in concluding that LT had no motive to lie; and (2) in allowing the Crown to cross-examine him on a conversation he had with his spouse. The Court of Appeal summarized the accused’s arguments in the following manner (at paragraphs 51 and 64):
The appellant argues that on three occasions, the trial judge referred to what was an absence of a motive for L.T. to lie. The trial judge referred to L.T.’s evidence that she “never had an axe to grind with” the appellant, and twice to her hesitation or delay in reporting as the result of her “torment” over making a decision that would affect people she considered family and “emotional issues with which she was grappling in the days following the assault.”
The appellant argues that the trial judge should not have permitted the Crown, during cross-examination, to question the appellant about a conversation he had with his wife about the events of the weekend, as a testimonial privilege attaches to marital communications. He submits that the error was exacerbated because the trial judge relied on the appellant’s evidence about the conversation.
The appeal was dismissed. The Ontario Court of Appeal concluded that the trial judge did not err in either manner alleged.
Absence of Evidence of a Motive to Lie:
The Court of Appeal held that the trial judge’s “statement that L.T. had no ‘axe to grind’” was made in response to the accused’s position at trial (at paragraphs 52 to 57):
It is well established that simply because a witness has no apparent reason to lie, it does not follow that they must be telling the truth. A trial judge is not permitted to jump from the former conclusion to the latter, or to use the lack of an apparent motive to lie in support of the credibility of the witness: R. v. S.W. (1994), 18 O.R. (3d) 509 (C.A.), at pp. 16-17, leave to appeal refused, [1994] S.C.C.A. No. 290; R. v. Mirzadegan, 2019 ONCA 864, 2019 CarswellOnt 17941, at para. 14. However, that is not what the trial judge did in this case.
A trial judge is required to grapple with any defence allegation that a complainant has a motive to fabricate. In doing so, the trial judge may find that there was no apparent motive to lie, as this is responsive to the defence position. No error occurs in such a case if “the trial judge [does] not cross the line and use this rejection [of the defence position] to bootstrap the credibility of the [complainant]”: R. v. P.S., 2019 ONCA 637, 2019 CarswellOnt 12663, at para. 59.
L.T. was cross-examined at trial about the delay in reporting to the police and attending the hospital for testing, since given her occupation she knew these steps were to be taken promptly. L.T.’s explanation was that the cause of any delay was her friendship with the appellant and his family and a concern about the consequences of a report for them. In closing submissions at trial, counsel for the appellant argued that L.T.’s delay in reporting and attending for testing at the hospital were because she knew she had no reason to go — in other words the trial judge was asked to reject L.T.’s explanation for the delay. The trial judge’s statements about L.T.’s reasons for delay in reporting are not findings of the lack of an apparent motive to fabricate — they are findings that L.T. was telling the truth about her reason for any delay in reporting; they were directly responsive to the position advanced by the defence.
Read in context, the trial judge’s statement that L.T. had no “axe to grind” is related to her other findings about the relationship of friendship with the appellant and his family, which was the basis of L.T.’s explanation for the alleged delay in reporting the defence had raised. Even if it could be read as a finding of a lack of an apparent motive to lie, I would not consider it to be a finding improperly made given that in cross-examination questions had been put to L.T. that suggested she had a financial motive to lie. Nor was the finding improperly used. The trial judge gave extensive other reasons for believing L.T. and did not cross the line and use any finding of an absence of a motive to fabricate to bootstrap her credibility finding.
Accordingly, I would not give effect to this ground of appeal.
Spousal Privilege:
The Court of Appeal concluded that the accused had waived the privilege that would otherwise apply (at paragraphs 66 to 69):
L.T. and K.T. testified that they told the appellant’s wife on Sunday what had happened. The appellant’s trial counsel asked him during his testimony in chief how Sunday had unfolded, including by specifically asking whether the appellant’s wife had said anything to him that day. He said no. This was consistent with the appellant’s theory at trial that the events of Sunday and the visit continuing as it did, were inconsistent with L.T. and K.T.’s allegations.
The Crown was entitled, in cross-examination, to follow up on this answer. No objection was made, or privilege claimed, when the Crown did so, and evidence that there had been a conversation was elicited.
Section 4(3) of the Canada Evidence Act, R.S.C. 1985, c. C-5 provides that a spouse is not compellable to disclose a communication made by the other spouse during the marriage. This privilege — to withhold evidence of the communications — may be waived: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 41.
The question by the appellant’s trial counsel invited disclosure of the communications to the appellant by his wife. The combination of that question, and the appellant’s answer, waived any privilege. The appellant did not assert privilege or object to the questioning during cross-examination, underscoring the waiver.
