R. v. IGNACIO, 2021 ONCA 69, FEBRUARY 3, 2021.
FACTS: The accused was charged with the offence of sexual assault. At his trial, he suggested that the complainant had a motive to falsely accuse him of having sexually assaulted her. In convicting the accused, the trial judge stated:
I note as well that [the complainant] had no motive to falsely accuse Mr. Ignacio of a serious crime. To the contrary, it is clear from the evidence that prior to the sexual activity, she liked Mr. Ignacio and hoped to get to know him better. In making this observation, I am mindful that the burden of proof is on the Crown and that there is therefore no obligation on an accused to demonstrate why a witness would testify falsely…Nonetheless, this is a factor to consider…I recognize that the defence has alleged a motive to fabricate that is related to [the complainant’s] fear of having become pregnant, an issue I will address later in these reasons.
The accused appealed from conviction, arguing that “the trial judge erred in finding that the complainant had no motive to fabricate and in considering this as a factor in assessing her credibility”.
HELD: The appeal was dismissed.
No Motive to Lie Versus No Evidence of a Motive to Lie:
The Ontario Court of Appeal noted that “The ‘distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate is not easily digestible’: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 97, per Watt J.A. As Watt J.A. explained in John, at para. 93”:
The former is not the equivalent of the latter, nor is the latter the same as the former: R. v. L. (L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another way, it does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R. v B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: R. v. L. (L.), at para. 44. [Court of Appeal’s Emphasis]
The Court of Appeal suggested that in “addressing this appeal, there are in essence two questions that require a response” (at paragraph 30):
(i) Did the trial judge find that the Crown had proven that the complainant had no motive to fabricate or that there was, as the Crown asserts, simply an absence of evidence of any motive to fabricate?
(ii) If the evidence fell short of establishing that the complainant had no motive to fabricate and the trial judge was simply adverting to an absence of evidence of any motive to fabricate, was he entitled to consider that absence in his analysis of the complainant’s credibility? [Court of Appeal’s emphasis]
Proof of No Motive to Fabricate”
The Court of noted that “[w]hile the cases leave open the possibility that the Crown can prove that a complainant had no motive to fabricate, they set a high bar for proving no motive to fabricate. This is because motives can remain hidden or there may be no motive at all…in most cases, the trier of fact will be faced instead with an absence of evidence of any motive to fabricate on the part of the complainant” (at paragraphs 31 and 32).
The Court of Appeal indicated that “had the trial judge found that the Crown had proven no motive to fabricate, such a finding would have been in error. The only evidence upon which the trial judge could make this finding was the evidence that the complainant and the appellant had a prior good relationship. Evidence of a good relationship between the complainant and the accused, standing alone, is insufficient to establish that the complainant had no motive to fabricate” (at paragraph 33).
The Court of Appeal held that “the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate. In the context of the defence submissions, he was entitled to look to the evidence for any suggestion of motive and conclude that there was no such evidence” (at paragraph 35).
The Court of Appeal concluded that “the language the trial judge used and the context are much more reflective of a finding that there was an absence of evidence of any motive to fabricate. The trial judge did not find that the Crown had proven that the complainant had no motive to fabricate. He effectively found that there was an absence of evidence of any motive to fabricate, and he treated this finding as one factor in the credibility analysis” (at paragraph 36, Court of Appeal’s emphasis).
May an Absence of Evidence of Motive to Fabricate be Considered in Assessing a Witness’ Credibility:
The Court of Appeal indicated that “the absence of evidence of motive may be considered as a factor in assessing credibility” (at paragraph 38). The Court of Appeal held that when a trial judge has “considered and rejected” the defence suggestion that a witness “had a motive to fabricate” he or she must not conclude that this means the witness “must be telling the truth because no motive to fabricate had been demonstrated”. Rather “the absence of an established motive to fabricate” can be used “as only one factor among many in assessing the [witnesses’] credibility” (at paragraph 57).
The Court of Appeal concluded that in “this case, the trial judge’s treatment of the motive issue was consistent with the cases discussed. He specifically cautioned himself against placing any obligation on the accused to demonstrate why the complainant would fabricate her evidence. Nothing suggests that he leapt to the conclusion that the complainant must be telling the truth. He considered the complainant’s credibility independent from his conclusion that there was an absence of evidence of a motive to fabricate. As mentioned, the issue of motive to fabricate had been raised by the defence and the trial judge felt obliged to address it. Lastly, he did not place excessive weight on the absence of evidence of motive. Indeed, the trial judge identified the issue as an observation and acknowledged that it was just one factor to consider” (at paragraph 59).