The Role of Motive, or Lack Thereof, on the Credibility Analysis of a Complainant in a Sexual Assault Case
The presence of absence of motive for witnesses in a criminal case can, in certain situations, be factors for the court to consider in assessing their evidence. This can get especially challenging when the complainant does not appear to have a motive to fabricate their evidence. In this latest blog post we will provide a case summary to show an example of where a trial judge fell into error in relying on the absence of motive when that had not been proven.
This is also a bit of a shift for the blog where we will be doing more case summaries and posting them on the Canlii connects page. Our first such case is the decision of the Ontario Court of Appeal in R. v. S.S.S., 2021 ONCA 552 and can be found here. Our other case summaries will be appearing here.
R. v. S.S.S., 2021 ONCA 552
Issues: Role of motive or lack thereof for the complainant on the credibility analysis and third-party records application
S.S.S. was charged with sexual assault and sexual interference. At the time of the alleged offence the complainant was eight or nine-years old. She was friends with the Appellant's younger sister. The alleged offence was said to have occurred when she had a sleep over at the Appellant's home. The Crown called the complainant and her mother. S.S.S. testified and denied the allegations.
The trial judge accepted the complainant’s evidence. One of the factors the trial judge considered in the portion of her analysis where she reached this conclusion was the complainant’s lack of motive to fabricate. She recognized the distinction between no motive to fabricate and no evidence of motive to fabricate, and that it is impermissible to move from an apparent lack of motive to fabricate to the conclusion that the complainant is telling the truth. She also confirmed that an accused need not prove that a Crown witness had a motive to fabricate.
On the facts of the case however, she found that not only was there no evidence of motive to fabricate or animus, but that it was contrary to the interests of the complainant and her mother to come forward, and the fact that they did demonstrated how the complainant had no motive to fabricate. The trial judge used that finding as a make-weight to enhance the complainant’s credibility.
There were three errors in the trial judge’s approach. The first was a factual error, while the other two were legal errors. The errors were:
there was no evidence from the complainant that supported the lack of motive finding;
the fact that the complainant’s mother did not want to undermine her relationship with the appellant’s parents in no way supports the credibility of the complainant – it is irrelevant to her credibility; and
even if the trial judge only found no evidence of motive to fabricate, treating the lack of evidence of motive to fabricate as a factor in assessing the credibility of the complainant in this case amounted to an error of law, because it had the effect of putting an onus on the appellant to disprove that the complainant had no motive to fabricate.
In relation to the third-party records the trial judge denied the application for a possible statement made by the complainant to the Children’s Aid Society (“CAS”). Given that any statement by the complainant to the CAS, if she made one, would have related to the allegations in this case and would not have been of a therapeutic nature, the privacy interest in the record is not as high as in counselling records. If there was any such statement, it was reasonably possible that it would be logically probative of an issue at trial.