In R. v. S.S.S., 2021 ONCA 552, August 3, 2021, the accused was convicted of the offence of sexual assault.  He appealed from conviction, arguing that the trial judge erred in her assessment of the complaint’s credibility by relying upon a lack of motive to fabricate.  In convicting the accused, the trial judge stated:

I have taken into consideration that there is no evidence of a motive to fabricate or animus in this case. To the contrary, by coming forward the complainant stood to jeopardize her friendship with the defendant’s sister. The complainant’s mother risked the close relationship and support of the defendant’s parents, both of whom she considered family.

The Ontario Court of Appeal concluded that the trial judge, in “treating the lack of evidence of motive to fabricate as a factor in assessing the credibility of the complainant in this case”, erred “because it had the effect of putting an onus on the appellant to disprove that the complainant had no motive to fabricate” (at paragraph 21).

The Court of Appeal held that “the trial judge did not find a lack of evidence of motive to fabricate. Rather, she found that there was no motive to fabricate, which she used as a make-weight for the complainant’s credibility. Finding no motive to fabricate amounted to a factual error that was not available on the evidence” (at paragraph 23).  The Court of Appeal concluded that this error required the ordering of a new trial (at paragraphs 38 and 39):

  Not only is there no burden on an accused to prove a motive to fabricate, there is equally no burden on an accused to disprove that the complainant had no motive to fabricate. If the accused does not raise the issue, it is not open to the trial judge to find that there was no evidence of motive to fabricate and to use that finding, not disproved by the accused, as a make-weight in support of the complainant’s credibility.

The trial judge’s error in finding no motive to fabricate and using that to bolster the credibility of the complainant was a significant one in the context of this case. Her acceptance of the complainant’s credibility was the main reason she rejected the appellant’s evidence and found that it did not raise a reasonable doubt. As any aspect of the credibility analysis could have been critical to the finding of proof beyond a reasonable doubt, the trial judge’s error requires a new trial.