In R. v. G.B., 2021 ONCA 675, September 28, 2021, the accused was convicted of having sexually assaulted his granddaughter. At the trail, the accused testified and denied having committed the offence. He suggested that the complainant “was very upset with him a week before she made the allegations because he had refused to lend her money to purchase a new car”.
In convicting the accused, the trial judge considered this purported motive and stated:
The complainant was an impressive witness. She presented as forthright, and careful not to guess about things she did not remember. She was clear and articulate. She frankly acknowledged when she could not remember or did not know the answer to a question. Apart from the allegations and a few other things, her evidence was substantially corroborated by the evidence of the defendant, which confirms that she can reliably describe her circumstances as a child. She presented in the same thoughtful and deliberate manner in cross-examination as she did in her evidence in-chief. She did not appear to hold any grudge against the defendant, and readily acknowledged all the good things he did for her. I find that it has been proven that she had no motive to lie. The evidence establishes that she knew that if she came forward her family, and in particular her children, would suffer as a result…For the most part, she kept her emotions in check when she testified, but could not hide her sadness when she talked about her loss of her relationship with her grandmother, and the support she received from her grandparents when things get rough for her. She seemed more upset by that than by what her grandfather did to her, which makes sense, given her circumstances, and the fact that she maintained a good relationship with him as a teenager and young adult. [Emphasis added by the Court of Appeal.]
The accused appealed from conviction, arguing that “the trial judge erred in how she addressed the question of whether the victim had a motive to fabricate the allegations, thereby requiring a new trial”.
The appeal was dismissed. The Ontario Court of Appeal indicated that it was “not troubled by the manner in which the trial judge resolved the car loan issue. The appellant introduced this issue at trial. There was nothing inappropriate in doing so, but the trial judge, in turn, was required to address the issue. On her evaluation of the evidence, she found that it was not a viable motive. It was open to the trial judge to make this finding on the record before her” (at paragraph 14).
However, the Court of Appeal also suggested that it “would have been sufficient had the trial judge left it at that”. The Court of Appeal indicated that the “trial judge’s more categorical finding – ‘she had no motive to lie’ – requires more scrutiny. If this was a reference to the car loan, for the reasons already given, it was unobjectionable. However, given that the trial judge went on to immediately comment on the consequences of the victim coming forward, ‘she had no motive to lie’ assumes greater significance” (at paragraphs 15 and 18).
The Court of Appeal does not indicate whether the trial judge erred. Rather it resorted to the use of the “curative proviso” (at paragraph 18):
As this court has said in a number of recent decisions, trial judges must approach an apparent lack of motive to fabricate with great caution when assessing the credibility of a complainant…However, to the extent that the trial judge may have strayed into forbidden territory, we apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. She was careful not to impose a burden on the appellant. Nor can it be said that this factor overwhelmed the trial judge’s assessment of the victim’s credibility. It did not infect the rest of her careful reasons in which she explained in great detail why she accepted the evidence of the victim and found the appellant guilty beyond a reasonable doubt.