R. v. R.K., 2023 ONCA 653

what you need to know

-The Court of Appeal offers a helpful summary on the law about the defence of motive to fabricate/li. An important reminder that the absence of evidence of motive to fabricate should not be conflated with evidence of no motive to fabricate.

Background

The appellant, R.K. was convicted of sexual interference in relation to instances of sexual interference that occurred frequently from the time the complainant was 6 years old until she was twelve. The complainant is the appellant’s daughter.

The complainant was the only Crown witness at trial. The appellant and his mother-in-law were the only witnesses for the defence. The defence theory was, in large part, that the complainant fabricated the allegations because she disliked the appellant.

The trial turned on the credibility of the parties. The trial judge found the appellant’s evidence to be contradictory and unbelievable, while she found the complainant’s evidence to be both credible and reliable. The trial judge therefore rejected the defence theory that the complainant fabricated the allegations and found the appellant guilty of sexual interference.

Disposition - Appeal dismissed.

issues on appeal

The appellant appeals both his conviction and his 8 year sentence. In relation to the conviction appeal, he raised 9 grounds of appeal attacking various aspects of the trial judge’s reasons. This summary focuses on one of the main grounds of appeal, namely, whether the trial judge improperly relied on the apparent lack of motive to fabricate as corroborative of the truth of the complainant’s allegations.

motive to fabricate/lie

The appellant submits that the trial judge erred in her treatment of the defence theory of the motive to fabricate.

“A lack of evidence of a complainant’s motive to lie may be relevant to credibility, particularly where motive to fabricate is raised by the defence: R. v. Gerrard, 2022 SCC 13. The risks lie in confusing an absence of motive to lie with evidence of no motive to lie; giving undue weight to an absence of motive to lie; moving directly from a finding of no apparent motive to lie to the conclusion that a witness is telling the truth; find a proven absence of motive to lie when the evidence does not support the finding; or placing an onus on the accused to prove the complainant had a motive to lie.”

In this case, the defence theory was that the complainant had a motive to fabricate as she hated her father and asked at the end of her police interview: “So my dad’s going to get in trouble?” The trial judge rejected the defence theory and found an absence of evidence of motive to fabricate.

The trial judge noted that the complainant did not deny that she hated her father for the last six years but rejected the suggestion that she wanted to get the appellant into trouble. The trial judge found, “L.C.M.’s express worry and fear about what would happen to her father when she gave her statement to the police to be sincere and to reflect a deep level of concern. In short, I found nothing in the evidence to question whether or not L.C.M. had any motivation to fabricate the allegations against her father.”

The trial judge also agreed with the Crown that the complainant “had nothing to gain” by reporting the sexual abuse. Read in context, this is an acceptance of the complainant’s account of being reluctant to disclose her sexual abuse and of her deep shame and suicidal thoughts after doing so. This was a finding open to her on the evidence and in any event, was only one of many reasons that the trial judge found the complainant to be a credible witness.

As a result, the Court dismissed this ground of appeal.