R. v. Mirzadagen, 2019 ONCA 864

MOTIVE TO FABRICATE - SEXUAL ASSAULT

Facts

The complainant and her friend CM attended a Halloween party at a university fraternity house. The appellant also attended the party, but did not know the complainant or CM prior to the night in question. The appellant, his friend, the complainant and CM drank outside (alcohol that CM and the appellant had brought from home) for about two hours. The appellant and the complainant went back to the complainant’s residence. At trial, the complainant testified that she felt as though she was blacking out, fell asleep in her costume and awoke to the appellant penetrating her from behind without her consent. The appellant, however, testified that when they arrived at the complainant’s residence they began to make out, she asked him to unzip her outfit, and she laid down on the bed. From his perspective, there was no concern as to her level of intoxication and the intercourse was consensual. At trial, the appellant was convicted of sexual assault.

Issue on Appeal

The Appellant submits that the trial judge improperly relied on the complainant’s supposed absence of motive to lie to support her credibility. The Appellant submits that this analysis is prohibited by the ONCA’s recent decision in R v Bartholomew, 2019 ONCA 377. In his reasons for judgment, the trial judge identified that the absence of motive was simply one factor considered in assessing the complainant’s credibility. In addition to the absence of motive to lie, the trial judge relied on the complainant’s ability to candidly explain the details of the next, her degree of intoxication, and her ripped costume. 

The ONCA rejects this submission. The ONCA confirms that the leading “absence of motive to lie” cases remain R v Batte (2000), 49 OR (3d) 321 (CA) and R v LL, 2009 ONCA 413. The ONCA distinguishes the present case from Bartholomew. In the latter, the trial judge’s error was treating the absence of evidence of a motive into a proven lack of motive. Whereas in the case at hand, the trial judge simply state that there was no apparent motive to lie. The trial judge very well could have found the complainant credible without relying on the apparent absence of motive to lie.

MacPherson JA, writing for the court, dismisses the appeal.