New trial ordered: Judge found complainant had motive not to fabricate, added to credibility

Close bond between families of complainant and accused aided complainant’s reliability: trial judge

New trial ordered: Judge found complainant had motive not to fabricate, added to credibility
Anil Kapoor, counsel for appellant

Ruling the trial judge erred in finding a complainant in a sexual assault case a had motive not to fabricate, and that motive added to her credibility, the Ontario Court of Appeal has ordered a new trial.

In R. v. S.S.S., 2021 ONCA 552, a man appealed his convictions and sentence of six-months in prison and two years’ probation. Court of Appeal Justices Kathryn Feldman, Peter Lauwers and Gary Trotter allowed the appeal, set aside the convictions and ordered a new trial.

“This case requires that one be mindful of the difference between the presence of evidence of no motive to fabricate versus the absence of evidence of no motive to fabricate,” says Anil Kapoor, who acted for the appellant, and practises criminal and regulatory law in Toronto at Kapoor Barristers.

In May 2019, Superior Court Justice Sandra Caponecchia convicted the appellant of sexual assault and sexual interference. The incident occurred, sometime between February and March, 2017, when the appellant was 20 and the complainant, eight or nine. The parties’ families were close, and the complainant and the appellant’s younger sibling were having a sleepover when the alleged assault occurred.

At trial, the complainant testified to her version of events. The complainant’s mother testified about the relationship between her and the appellant’s families. The mother was close with both the appellant’s parents and described how they had taken her in when she first immigrated to Canada and was pregnant with the complainant. She also said their friendship continued after the incident but repeatedly denied the suggestion that she had chosen not to sever ties with the family because she did not believe her daughter’s accusation.

The appellant also testified and made a blanket denial of all the complainant’s allegations.

Justice Caponecchia was satisfied beyond a reasonable doubt with the complainant’s credibility and reliability. In her analysis, the judge listed the complainant’s lack of motive to fabricate as one of the factors leading to this conclusion. But in addition to a lack of evidence of a motive to fabricate, to come forward was also contrary to the interests of the complainant and her mother. The effect could be to sacrifice the close bond between the two families, including the friendship between the complainant and the appellant’s younger sibling.

This created a motive for the complainant and her mother not to come forward, which Justice Caponecchia found was “evidence of no motive to fabricate” and which she used “as a make-weight to enhance the complainant’s credibility,” said Justice Feldman, who wrote the reasons for the appeal decision.

The Court of Appeal found there were three errors – two legal and one factual – in Justice Caponecchia’s take. The complainant had never said she believed coming forward would jeopardize her friendship with the sibling. Also, it is irrelevant to the complainant’s credibility that her mother did not want to harm the relationship between the two families. And colouring the credibility assessment with the finding of a lack of evidence of motive to fabricate was an error of law. This placed an onus on the defendant to disprove that finding. 

The trial judge’s error was significant, said Justice Feldman. The primary reason the trial judge rejected the appellant’s evidence and found it did not raise a reasonable doubt was her acceptance of the complainant’s credibility, which was buttressed by her finding of no motive to fabricate.

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