R. v. M.S., 2019 ONCA 869

Background

The appellant was convicted of sexual interference and invitation to sexual touching relating to three incidents involving his stepdaughter. At trial, he denied the allegations. He was then confronted in cross-examination as to why the complainant would fabricate sexual assault allegations. In his reasons for judgment, the trial judge referred to the  lack of evidence of motive in assessing the appellant’s credibility. On appeal, the appellant submits that by using this [lack of] motive evidence to discredit the appellant and enhance the credibility of the complainant the trial judge erroneously shifted the burden of proof.

Issue on Appeal

There is no onus on the accused to comment on the credibility of the complainant. The evidence the appellant gave in-chief was that he did not know of any reasons why the complainant would make the allegations. The appellant did not claim any motives that would “open the door” for cross-examination on this issue. While the Crown was entitled to explore the inconsistencies in the appellant’s prior police statement and testimony in-chief, the Crown was not entitled to ask the appellant to speculate as to the complainant’s motive. The rationale for limiting this type of questioning is (1) that it is unfair, and (2) it risks shifting the burden of proof (See R v ™, 2014 ONCA 854). 

The trial judge erred in using the evidence to support the complainant’s credibility contrary to R v Bartholomew, 2018 ONCA 377. Throughout his reasons the trial judge referred to the fact that the complainant had no ulterior motive. In effect, the trial judge transformed the absence of motive into proven lack of motive. An absence of evidence of motive does not establish that the complainant is truthful. 

Benotto JA, writing for the court, allows the appeal and orders a new trial.