In R. v. Dindyal, 2021 ONCA 234, April 14, 2021, the accused was convicted of a number of offences, including the offence of aggravated assault.  In convicting the accused, the trial judge indicated that he found the complainant to be a credible witness who had “no reason to lie, to fabricate or to embellish the accusations against [the appellant]” (at paragraph 19).

In setting aside the convictions, the Ontario Court of Appeal indicated that it “has explained, on a number of occasions, the permissible and impermissible use of evidence, or the absence of evidence, relating to motive” (at paragraph 22).  The Court of Appeal held that the trial judge “conflated the absence of evidence of a motive to fabricate with a proven lack of motive…This is a significant error. A proven lack of motive can be a compelling factor in a credibility assessment. However, the mere absence of any evidence of a motive to fabricate is only one of many factors to be considered in a credibility assessment. It alone cannot serve as the foundation of the credibility assessment” (at paragraph 23).

The Court of Appeal concluded that this error “became the driving force in the trial judge’s conclusions” (at paragraphs 24 and 25):

In my view, the trial judge impermissibly used the absence of any evidence of a motive to fabricate as if it had been proven that the complainant had no motive to fabricate, in coming to his credibility conclusion regarding the complainant. Rather than consider it as a factor, the trial judge clearly used it to conclude that the complainant must be telling the truth, contrary to the admonition I have just set out above.

The concern that the use of the absence of motive evidence became the driving force in the trial judge’s conclusions is heightened by the generally conclusory nature of his reasons. There is no independent analysis of the evidence on each of the counts, as is required absent a count-to-count similar act application by the Crown, of which there was none in this case. There are also no individual credibility assessments. Rather, the trial judge made a blanket credibility finding and then, in considering each count, simply set out the facts for that count, and then recited the same conclusion – that he does not believe the appellant but does believe the complainant.