The defence motive theory.

HD disclosed the encounters to her new boyfriend in mid-2015, while high and during a discussion of problems in their relationship. On her own evidence, he “freaked out,” was upset with her and angry, and encouraged her to call the police, which she did weeks later. The defence argued that HD may have recast a consensual relationship as non-consensual to preserve her relationship with her new partner.

The impugned passage.

In rejecting that theory, the trial judge reasoned that it made no sense that HD would be willing enough to fabricate that she would sit through a trial, face extensive cross-examination on personal matters, and again watch the explicit video in the presence of strangers.

The authorities. The court drew on two earlier appellate decisions:

In R. v. G.R.A. (1994), 35 C.R. (4th) 340 (Ont. C.A.), the court held that a complainant’s pursuit of a complaint cannot itself bolster her credibility, because that could reverse the onus of proof.

In R. v. K.(V.) (1991), 68 C.C.C. (3d) 18 (B.C.C.A.), Wood J.A. disapproved of the reasoning as resting on gender-related stereotypical thinking that complainants are believable.

Justice Paciocco added that the reasoning is a stereotype because it is a prejudicial generalization available in every case because every case typically has a complainant who testifies.

The core rationale: the presumption of innocence.

The primary concern, the court said, is that the reasoning cannot be reconciled with the presumption of innocence. A trial begins on the premise that the accused is not guilty, not on the basis that the mere making of an allegation favours conviction (citing R. v. Stewart (1994), 90 C.C.C. (3d) 242 (Ont. C.A.) and R. v. Nyznik, 2017 ONSC 4392).

Similarly the complainant having not embellished their evidence in and of itself also cannot be used to bolster the credibility of the complainant.

Distinguishing Batte. The Crown could point to R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.) to justify the use of willingness to testify. There, it was open to a trial judge to tell a jury that, if they found the complainants had no motive to fabricate, they could ask why the complainants would expose themselves to cross-examination on very personal matters. The court gave Batte a narrow reading for two reasons:

In R. v. L.L., 2009 ONCA 413, at paras. 49–50, Simmons J.A. had already treated the Batte comment as an isolated remark in a charge that, overall, did not mislead the jury.

Batte was conditional on an affirmative finding that there was no motive to fabricate. In JC, the trial judge used willingness to endure the trial as a reason for rejecting the motive. The reasoning ran in the opposite direction.

1. It proves too much.

Every complainant who testifies has, by definition, been willing to come to court and be cross-examined. A factor present in every case cannot help distinguish true allegations from false ones. Its only effect is to tilt every credibility contest towards the complainant before the evidence is weighed. That is why the court characterized it as a prejudicial generalization rather than an inference from the evidence.

2. It inverts the presumption of innocence.

If the act of making and maintaining an allegation is treated as evidence of its truth, the accusation becomes its own corroboration in circular reasoning. The accused must then overcome a presumption of credibility that the law does not grant. The court treated this as the primary objection.

3. It cannot answer a specific motive theory.

The defence in JC did not rest on the generic proposition that complainants lie. It pointed to evidence: the timing and circumstances of the disclosure, and the boyfriend’s angry reaction and encouragement to go to the police. A person who has made an allegation in that setting may feel unable to retreat from it, however hard the trial becomes. The hardship of trial says nothing about whether that specific motive existed. Using it to reject the theory replaced an evidence-based inquiry with a general assumption.

No burden on the accused to prove a motive.

The accused does not have to establish that a complainant had a reason to lie. Asking why a complainant would fabricate and treating the absence of an answer as support for her credibility, risks shifting the burden (R. v. L.L., 2009 ONCA 413).

Absence of evidence is not proof of absence of motive.

In R. v. Gerrard, 2022 SCC 13, the Supreme Court confirmed that the lack of an apparent motive to lie may be a relevant common-sense factor, especially where the defence alleges fabrication. But it is not conclusive. Trial judges must not equate the mere absence of evidence of a motive with evidence disproving a motive and must not reverse the burden by requiring the accused to explain the allegation (Criminal Notebook summary).

No motive is not a “motive not to fabricate.”

In R. v. S.S.S., 2021 ONCA 552, decided a few months after JC, the Court of Appeal ordered a new trial where the trial judge found that the complainant had a motive not to fabricate and used that finding to enhance her credibility. The court held that this effectively placed a burden on the accused to displace the finding (Law Times).

Its main foundation is the presumption of innocence, not common sense.

The court identified burden-shifting as the “primary concern”. Reasoning that effectively requires the accused to displace a presumption of credibility is a legal error in its own right, independent of any rule about generalizations. Gerrard, decided after JC, reinforces the same anti-burden-shifting principle.

It rests on long-standing authority.

G.R.A., Stewart and L.L. predate the common-sense rule that Kruk rejected.

For trial judges.

Reasons should not rely, expressly or implicitly, on the complainant’s decision to report, to proceed, or to endure cross-examination as a basis for believing her or for rejecting a motive theory. Where the defence advances a motive theory, it should be assessed on the evidence said to support it. If there is no evidence of motive, that is a neutral finding, not a positive one.

For Crown counsel.

Closing submissions that invite the trier of fact to ask why the complainant would put herself through a trial carry appellate risk. Batte offers limited cover, and JC and L.L. confine it to its facts.

For defence counsel.

A motive theory should be anchored in specific evidence, such as the timing, setting and consequences of disclosure. Claims by the prosecutor that a complainant’s evidence should be believed simply by their choice to testify should be immediately addressed during closing submissions.