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In 2020, the Alberta Court of Appeal, in R. v. JOL, 2020 ABCA 73, ordered a new trial of a sex assault conviction from the Court of Queen’s Bench.  The appeal was successful due to the trial judge failing to properly charge the jury, with respect to the proper purpose of an admitted Agreed Statement of Facts, which the adduced evidence of motive to fabricate by the complainant, and generally failing to charge the jury to consider a motive to fabricate in assessing the complainant’s credibility.   

It was alleged at trial that between 2014 and January 2016, the appellant and the complainant were in an intimate relationship and shared an apartment.  LS was the complainant’s friend, who stayed at the apartment between December 24, 2016 and January 17, 2016.  On January 17, 2016, the complainant and the appellant ended their relationship.  That night it was alleged that the appellant sexually assaulted the complainant.  The appellant did not dispute that sexual intercourse had occurred but maintained that it was consensual.   The only witnesses at trial were the complainant and the appellant.  Thus, credibility was the central issue at trial.

The complainant testified that on May 24 or 25, 2016, LS had told her that the appellant had sexually assaulted her three times during her visit over Christmas in 2016.  After this conversation, the complainant went to the appellant’s residence and slashed some property with a knife.   After these events, the complainant reported to the police that on January 17, 2016, the appellant had sexually assaulted her.  The Crown then read into evidence an Agreed Statement of Facts where it was admitted that during the investigation the police had contacted LS about the three sex assaults that LS reported to the complainant.  LS admitted to the police officer that she had consensual sex with the Accused three times during her stay, and that she was never sexually assaulted by the Accused.   The trial judged delivered a mid-trial instruction to the jury, which omitted instruction regarding the evidence contained in the Agreed Statement of Facts.  The appellant later testified that he had consensual sex three times with LS, and that had consensual sex on January 17 with the complainant.   

The key issue on appeal was the improper instructions to the jury by the trial judge, with respect to the evidence from the Agreed Statement of Facts, and by properly instructing the jury to consider the motive to fabricate in assessing the complainant’s evidence.  The Crown and the defence counsel had different motives for that evidence been admitted.  The Crown wanted the evidence to show the “state of mind” of the complainant when she slashed the property with the knife.  On the other hand, the defence wanted this evidence to challenge the complainant’s credibility regarding her conversation with LS, and to argue that the complainant had a motive to fabricate the allegations regarding January 17, 2016 (she was motivated by anger that the complainant cheated on her with LS or that he had sexually assaulted her friend).  The error the trial judge made in his mid-trial instruction to the jury, was being clear for what purpose the evidence from the Agreed Statement of Facts was being tendered.  This could have resulted in the jury engaging in propensity reasoning and considering bad character evidence suggested by the complainant (that he had previously assaulted her friend).   The Court of Appeal found that this improper jury instruction that could have resulted in a miscarriage of justice. 

The trial judge also declined to put to the jury the specific instructions on a possible motive to fabricate by the complainant, citing a concern that it may influence the jury’s assessment of the complainant’s credibility.  The Court of Appeal cited – R. v. CEK, 2020 ABCA 2 at para 26; R. v. Zapeda, 2018 ABCA 425 at para 10; R. v. Batte, 49 OR (3rd) 321 at paras 119-121, 134 OAC 1 (CA) – for the principle that “while not determinative, the existence of a motive to fabricate is relevant to assessing credibility.”  This applies to all matters, including sexual assault trials.  The jury should have been clearly instructed to consider the complainant’s motive to fabricate the sex assault in light of the conversation she had with LS in May of 2016.  As such, a new trial was ordered.