R v Mugodo, 2023 ABKB 728

Court of King’s Bench of Alberta Citation: R v Mugodo, 2023 ABKB 728 Date: 20231222 Docket: 200575710Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Tinashe Gray Mugodo Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on December 22, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice A. Loparco _______________________________________________________ I. Introduction

[1] During the trial of this matter, I delivered this decision orally and in an abbreviated version. I reserved the right to expand onmy reasons in this written version, and correct syntax and grammatical errors. This is my complete written decision with case and othercitations. The substance of the decision has not changed. II. The Application [2] Defence counsel seeks a mistrial. Defence counsel submits that during the Crown’s closing statement, the Crown improperlyinvited the jury to consider the absence of a motive to fabricate.

As a result, they argue that there has been irreparable damage to the trial,which cannot be repaired with a corrective instruction to the jury. [3] The impugned portion of the Crown’s closing statement is as follows: Applying your reason, common sense, and life experience, you will interrogate [the Complainant’s] testimony intensely as anyone else’s.I trust you will. And you are free to consider not just the evidence but also where there is a lack of evidence. I would submit that it is fairfor you to consider that there is no evidence of a motivation to fabricate.

That is not to say there is ever a duty for anyone...for thedefence to ever prove anything and there is not. It’s up to me to prove things. The onus never shifts on this. But you have common sense.You have seen the evidence. And if you are asking yourself if there a reason why she would have made this up, you will not find anyevidence of that, and it is a fair consideration in my respectful submission. (For The Record at 4:19:20-4:20:24) [4] Where the Crown has said something untoward in their closing address, and the defence has already given their closingaddress, the trial judge generally has two options.

The first is to address the issue with a corrective instruction to the jury. The second isto declare a mistrial: R v Rose, (SCC) [Rose] at para 66; R v Lai, 2018 BCSC 2518 at para 6. III. Position of the Parties A. Defence [5] Defence counsel submits that the Crown committed a fatal flaw in asking the jury to consider that there was no evidence ofmotive to fabricate, which inappropriately served to bolster the credibility of Complainant. [6] The Defence submits that there is a difference between the absence of a proved motive and proved absence of a motive (seeR v LL, 2009 ONCA 413 [LL] at para 53).

However, they argue that where there is no apparent motive to fabricate, but the prosecutionfails to prove that there is no motive to fabricate, it is impermissible to move from the apparent lack of motive to a conclusion that theComplainant must be telling the truth (citing R v Giscombe 2021 OJ No 7472 at para 51; R v Bartholomew, 2910 ONCA 337 at paras19-25). [7] As such, they argue that it is not open to the jury to find that there was no evidence of a motive to fabricate and to use thatfinding, not disproved by the Accused, as a makeweight in support of the complainant’s credibility (see R v SSS, 2021 ONCA 552 [SSS]at para 38). [8] Defence counsel submits that the improper closing bears on the Accused’s fair trial rights; the question of fabrication goesdirectly to the issue of the Complainant’s credibility, and thus the Crown’s error is substantial. [9] It is further argued that the prejudicial effect of the Crown’s closing on the jury is amplified and not correctable with a juryinstruction because of the delay between the closing and the return of the jury.

The jury was dismissed after closing arguments onThursday afternoon and asked to return Monday morning. Defence counsel submits that the jury would be left with an improperstatement of law over the weekend, causing them to unduly focus on the suggestion that there was no motive to fabricate as a centralconsideration of the Complainant’s credibility.

However, I note that Defence counsel did not raise the issue after the Crown’s closingargument, and only realized later that it may be problematic. [10] In any case, the Defence states that a corrective jury instruction or warning cannot correct the error now (see Rose at para 66).Even if it were possible to correct the error with a jury instruction or warning, they say that it is too late to do so because any correctiveinstruction or warning ought to have been given immediately after the error occurred (see R v CBP, 2022 ABCA 29 at para 20). B.

Crown [11] The Crown argues that in closing submissions, the refence to the absence of evidence of a motive to fabricate was merely aninvitation for the jury to use their common sense and apply it to determining the overall credibility of the Complainant.

The Crownsubmits that the reference to the absence of evidence of a motive to fabricate was not overemphasized, was in line with jurisprudence onthe issue, and did not overstate the weight the jury should attach to it. [12] Crown counsel further agrees with the Defence that the absence of evidence of any motive to fabricate cannot be assessed thesame way as a proved absence of a motive to fabricate. However, they argue that the distinction rests on whether there is an evidentiaryfoundation to prove or disprove such motive, and the resulting weight that can be accorded to the Complainant’s credibility.

But in eithersituation- whether there is evidence of no motive or simply an absence of evidence - the Crown submits that the issue can be put to thejury and used to assess the Complainant’s credibility.

[13] The Crown cited several cases where the Court found it proper to rely on an absence of evidence of a motive to fabricate(without having proven it) to assess a witness’ credibility: R v Ignacio, 2021 ONCA 69 [Ignacio] at paras 29-59; R v Labrocq 2011ONCA 405 para 18ff; R v Greer ONCA 505 2009; R v Jackson ONCA 1995 3506; R v Harp 553 ONSC para 335; R v WB (Batte), (ON CA) [Batte]. [14] The Crown states that the law surrounding the issue of a motive to fabricate is a minefield and suggests that it would beproper for the Court to consider adding an instruction in the jury charge that would assist them in understanding how they may use theabsence of evidence of the motivation to fabricate to assess the Complainant’s credibility.

IV. The Law A. Mistrials [15] Trial judges possess the power to declare a mistrial where fairness of the trial process has been irreparably compromised. Trialjudges have broad common law powers to declare a mistrial as a solution to a wide range of irregularities: R v Burke, 2002 SCC 55[Burke] at para 74. Irregularities or errors that lead to applications for a mistrial vary considerably, making the determination of anappropriate remedy highly case-specific: R v Luo, 2021 ABQB 188 at para 15. [16] The decision on whether to declare a mistrial is a discretionary one.

That discretion should only be exercised in the clearest ofcases where there has been a fatal wounding of the trial process that cannot otherwise be remedied or if the error could affect the jury tothe point that the entire trial is compromised and no remedy other than a new trial is available: R v Dueck, 2011 SKCA 45 atpara 30; R v Arabia, 2008 ONCA 565 at para 52; R v Lising, 2004 BCCA 33 at para 59; R v Khan, 2001 SCC 86 [Khan] at para 32; R vAnderson, 2018 ABCA 412 at para 11; R v Karim, 2010 ABCA 401 at para 27. [17] The trial judge is in the best position to assess the possible impact of the error on the jury, and the effectiveness of anywarnings issued to the jury: Burke at para 75; Khan at para 80.

In considering whether to grant a mistrial, the Court must assess thepossible impact of the evidence on the jury and the effectiveness of any corrective measure that could remedy the irregularity: Khan atpara 80. [18] A mistrial should only be granted where there is a real danger of prejudice to the accused or danger of a miscarriage of justice:Burke at para 74; R v Cawthorne, 2016 SCC 32 at para 39 [Cawthorne]; R v GC, 2018 ONCA 392.

A miscarriage can arise where atrial is unfair, or when the trial has the appearance of unfairness, viewed by a well-informed, reasonable person considering the whole ofthe circumstances: Khan at para 27. [19] A mistrial will also arise where there is an apprehension of bias: Burke at para 74.

A mistrial is appropriate when it isbelieved that the trier of fact can no longer fairly adjudicate upon the case because of the release of information that has the potential to irremediably prejudice one of the parties: Michelle Fuerst, Anne Sanderson & Stephen Firestone, Ontario Courtroom Procedure, 5th ed(LexisNexis Canada Inc, 2020)

Chapter 20: For a Mistrial. [20] When an accused makes an application for a mistrial, the test is whether the accused’s ability to make full answer and defencehas been impaired: R v T(LA), (ON CA) at para 8. In considering the possible impact of the error, an accused isentitled to advance his case on the basis of the real possibility of the worst-case scenario: Khan at para 33. B.

The Role of the Crown [21] The Crown occupies a special position in the prosecution of criminal offences that excludes any notion of winning or losingand must always be characterized by moderation and impartiality: R v Boucher, (SCC) at pp 21, 24. The Crown must notmisstate the evidence or the law: R v Boudreau, 2012 ONCA 830, leave to appeal refused, (SCC) [Boudreau] atpara 16. The Crown should not engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissiblesubmissions that effectively undermine a requisite degree of fairness: R v Mallory, 2007 ONCA 46 at para 340.

Nor should the Crownexpress personal opinions about either the evidence or the veracity of a witness: Boudreau at para 16.

The Crown must not invitespeculation by the jury or rely on anything within their personal experience or observations that is not in evidence: R v McGregor, 2019ONCA 307 at para 179; Pisani v R, (SCC) [Pisani] at p 740 (see also R v Clyke, 2021 ONCA 810 [Clyke] at para 34). [22] There is no general rule that an improper address to the jury by Crown counsel that the trial judge has not correctedis conclusive of the fact that there has been an unfair trial and that a conviction cannot stand: Pisani at 740; R v Peavoy, (ON CA); R v BEM, 2022 ABCA 207 at para 37.

Whether improper Crown submissions create a miscarriage of justice depends onwhether the improprieties bear so directly on the central issue in the case and is so prejudicial in respect of that issue as to deprive theaccused of his right to a fair trial: Pisani at 741; Peavoy; Clyke at para 36. [23] The test is whether the closing address was unfair in such a way that it might have affected the decision of the jury: Clyke atpara 36; see also R v McKnight 2022 ABCA 251 para 189. C.

Motive to Fabricate [24] In general terms, the existence or absence of a motive to fabricate is a factor to be considered in assessing credibility: R v IP,1997 ABCA 3; Batte at paras 120-121. However, it is not determinative, and it is only one factor in the credibility assessment process:Batte at paras 120-121; R v MacKenzie, 2020 ONCA 6460 [MacKenzie]. [25] However, the absence of a complainant’s motive to fabricate must not be used to suggest that an accused has an onus to

demonstrate that the complainant has any such motive, that the absence of a demonstrated motive to fabricate means there was no such motive, or that the absence of a motive to fabricate establishes that a witness is telling the truth: R v Zepeda , 2019 ABCA 425 at para 10 ; see also R v HPM , 2022 ABQB 98 [ HPM ] at paras 326 . [ 26 ] The distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate is not easily digestible: R v John , 2017 ONCA 622 at para 97 .

It does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R v B(RW) (1993), 24 BCAC 1 at para 20 . The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: John at para 93 ; LL at para 44. [ 27 ] The absence of motive to fabricate can be considered as part of the credibility assessment process.

However, the absence of evidence to fabricate must not be transformed into proof of no evidence to fabricate: R v KRR , 2020 ABCA 475 [ KRR ] at para 30 . [ 28 ] On the other hand, if an accused proves that a complainant has a particular motive to fabricate evidence, it may substantially challenge the credibility of the complainant and be capable of raising a reasonable doubt. [ 29 ] Similarly, if the Crown proves that the complainant has no motive to lie, such a conclusion may serve as a powerful platform to assert that the complainant must be telling the truth: Bartholomew at para 21 ; Batte at para 120 ; Ignacio at para 32 . [ 30 ] If there is no evidence of any motive to fabricate on the part of the complainant, but the evidence falls short of actually proving that the complainant has no motive to fabricate, a trier of fact is still entitled to consider an absence of evidence of motive to fabricate when assessing a complainant’s credibility: LL at para 53; R v Stirling , 2008 SCC 10 [ Stirling ] at para 12 ; MacKenzie at para 34; R v WR , 2020 ONCA 813 at para 18 [ WR ]; Ignacio at paras 37-60 . [ 31 ] There are certain risks arising from this consideration that must be avoided: • First, the trier of fact must not equate the mere absence of evidence that a complainant has a motive to fabricate evidence with a proven absence of motive: R v Greif , 2021 BCCA 187 at para 41 . • Second, the trier of fact must not consider that an absence of evidence of motive to fabricate, or even a proven absence of motive, conclusively establishes that the complainant is telling the truth: Batte at paras 121, 125 ; Stirling at para 11 .

They may consider the absence of evidence of a motive to fabricate as one of various factors in assessing the complainant’s credibility and must not place excessive weight on it: Ignacio at paras 47-58 . • Third, the trier of fact must not reverse the burden of proof. An accused is never required to explain why a complainant has made the allegations or demonstrate that the complainant has a motive to fabricate evidence in order to achieve an acquittal: Greif at paras 39- 41 ; Batte at para 121 (see also R v Swain , 2021 BCCA 207 at paras 30-33 ). [ 32 ] In

summary, there is a difference between an absence of evidence of a motive to fabricate (that is, no evidence either way) and a proven absence of a motive to fabricate (that is evidence that establishes that no motive existed). The former is an element that may be considered in assessing the credibility of a witness, but it is only one element. On the other hand, the latter may be a compelling reason to conclude that the witness is telling the truth: WR at para 18; see also HPM at para 327 . V. Analysis [ 33 ] This case turns on the issue of consent.

The jury must decide whether the Complainant consented to the sexual activity, and, if not, whether the Accused had an honest but mistaken belief that the Complainant communicated her consent. The credibility of the Complainant and the Accused are key to the jury’s determination on this issue. [ 34 ] A trial judge may be required to provide corrective instructions to a jury when the Crown in their closing submissions made improper submissions about a witness’ motive to fabricate.

The obligation may be engaged where the Crown suggests that the presence or absence of a motive to fabricate has been proven, but no such proof exists . It may arise where the Crown invites the jury to focus on what has not been proved, such as a credible motive to lie, rather than what has been proved, which can create a risk that the jury would reason that failure to demonstrate a motive to lie means that the witness is telling the truth.

It may also arise or where the address suggests that the accused has the burden of demonstrating a motive on the part of a prosecution witness to fabricate evidence: Batte at para 121 ; LL at paras 42-49; R v MB , 2011 ONCA 76 at paras 31-32 . See also R v JH , 2020 ONCA 165 at para 148 . A. Must the Accused suggest that there is a motive to fabricate before the Crown can put it to the jury? [ 35 ] The answer is yes.

The burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations. [ 36 ] In SSS , the Court found that the trial judge erred by finding that the child complainant and her mother had a motive not to fabricate the allegations and used that finding to enhance the credibility of the complainant (para 4). At trial, the appellant did not call any evidence. The trial judge held that there was no motive to fabricate and that coming forward with the complaint was contrary to the interests of the complainant.

The trial judge’s acceptance of the complainant’s credibility was the main reason she rejected the appellant’s evidence and found that it did not raise a reasonable doubt. The Court held that there is no burden on an accused to disprove that the complainant had no motive to fabricate. If the accused does not raise the issue, it is not open to the trial judge to find that there was no evidence of motive to fabricate and to use that finding, not disproved by the accused, as a makeweight in support of the complainant’s credibility (para 38).

[ 37 ] In Ignacio , the defence alleged that the complainant had a motive to fabricate. As such, the Court did not have to consider the risk of the onus being reversed in situations where the issue is not raised by the accused. The Court found that the trial judge was required to consider motive to fabricate because the accused had alleged that the complainant had a motive to fabricate.

In the context of defence counsel’s submissions, the trial judge was entitled to look to the evidence for any suggestion of motive and conclude that there was no such evidence (para 35). [ 38 ] In R v Gerrard , 2022 SCC 13 , the Court held that lack of evidence of a motive to fabricate was held to be a proper factor to be considered when assessing credibility. Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence.

Both the absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, are commonsense factors that suggest a witness may be more truthful because they do not have a reason to lie. [ 39 ] Gerrard further held that when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (para 4, citations omitted). [ 40 ] In the face of a suggestion by the defence that a witness has a motive to lie, a trier of fact can consider a complainant’s reluctance to report offences to the police and to testify as factors supportive of the inference that the complainant’s version of events is accurate: R v EMW , 2009 NSPC 33 at para 80 , cited with approval in R v Gerrard , 2021 NSCA 59 at para 54 . [ 41 ] In this case, the question of the Complainant’s motive to fabricate was squarely put before the jury by the Accused.

It was a live issue for them to consider before the Crown made closing submissions. During cross-examination, Defence counsel put questions to the Complainant to suggest to the jury that she had a motive to fabricate. Defence counsel suggested to the Complainant: that she was afraid of being punished by her parents for missing her curfew; that her phone was important to her; that she did not want to risk it being taken away; that she did not want to upset her parents; and, that her father was indeed upset with her.

In closing arguments, Defence counsel argued that the Complainant admitted that getting home after curfew would result in punishment and that she did indeed arrive home late. B. Did the Crown appropriately raise the lack of evidence of a motive to fabricate? [ 42 ] The Crown did not reply with evidence to prove that the Complainant had no motive to fabricate.

Neither side argued whether the motive to fabricate was proven or disproven. [ 43 ] Since the Defence suggested that the Complainant had a motive to fabricate through cross examination and in closing argument, it was proper for the Crown to invite the jury to consider the absence of a motive to fabricate as a factor to be considered in assessing credibility, but it is only one element, and it is not determinative: see R v IP, Batte , MacKenzie . [ 44 ] In the Crown’s closing submissions, the Crown treaded carefully so as not to risk transforming an absence of evidence of a motive to fabricate into proof of no evidence of a motive to fabricate.

On review of the impugned statement, the Crown employed the correct approach. The Crown invited the jury to consider a lack of evidence of the Complainant’s motive to fabricate as part of the overall credibility assessment process.

The Crown put it to the jury that it was “fair for [them] to consider that there is no evidence of a motivation to fabricate” and a “fair consideration” but did not suggest it was the only consideration or that it inevitably led to a finding that the Complainant was telling the truth. [ 45 ] Unlike the trial judge’s finding in SSS , cited by the Defence, the Crown did not suggest that there was evidence that established that no motive existed.

Nor did the Crown suggest that there was no proof of a motive and that the jury may rely on this lack of proof as a compelling reason to conclude that the Complainant was telling the truth (see R v Cartwright , 2022 BCSC 1971 ). The Crown was careful to emphasize that there was merely a lack of evidence of motive to fabricate, while also reiterating that the accused had nothing to prove, and the onus always rests on the Crown to prove its case. [ 46 ] I do not find that the Crown’s submissions on this point to an inappropriate bolstering of the Complainant’s credibility.

The impugned statement falls on the side of what is permissible articulation of the evidence. Since the Crown did not argue that there existed proof of no motive to fabricate, the burden did not shift to the Accused to disprove it, nor did the Crown invite the jury to move from apparent lack of motive to a conclusion that the Complainant must be telling the truth.

Had the Crown stated positively that there was evidence of no motive to lie, then that would have crossed into impermissible territory. [ 47 ] To summarize: 1) The Accused must first raise the issue by eliciting a motive to fabricate during trial, argue that it has been proven, or suggest that it is a consideration for the trier of fact. 2) The Crown may then seek to disprove the allegation that there was a motive to fabricate.

While there remains open the possibility that the Crown can prove a complainant had no motive to fabricate, the bar is high: R v Swain , 2021 BCCA 207 [ Swain ] at para 31 Motives can remain hidden or there may be no motive at all: see Bartholomew at para 22 . 3) The Crown may ask the trier of fact to rely on one of two distinct categories with varying degrees of application: • the absence of evidence of a motive to lie (where there is no evidence either way); or • the stronger, more probative category of evidence disproving a motive to lie (where there is evidence establishing as a fact that no

motive exists). Both are indicators that a witness is more likely telling the truth. Neither are conclusive. However, proof of a motive to fabricate entails a direct or circumstantial evidentiary foundation and as such, acts as a heavier counterweight that would be more compelling to the trier of fact to conclude that the witness is telling the truth.

Nevertheless, the fact that there may be a motive to fabricate does not mean that a witness is not telling the truth; it is only one factor to be considered in assessing credibility: see WR at paras 18-21. 4) If an accused proves that a complainant has a particular motive to fabricate evidence, it may substantially challenge the credibility of the complainant and be capable of raising a reasonable doubt. [ 48 ] Finally, the jurors were advised at the outset in my opening instructions that: (

a) the oath or affirmation they took requires them to listen closely to the evidence and decide the case solely on the evidence and the instructions that I give them; (

b) during and at the end of trial, I would give them specific and detailed instructions about the rules of law that apply and that they are not allowed to pick and choose among my instructions; (

c) I am the sole judge of the law, and it is their duty to accept the law as I explain it and that they must not use their own ideas about what the law is or should be and cannot rely on information about the law from any other source; (

d) there are some things that are not evidence. If I instruct them to disregard any of those things, they must do so and not rely upon them to decide this case; (

e) they must not investigate, seek out information, or do research from any source as it could be incomplete, unreliable, or simply wrong; (

f) what the lawyers say about the law is only meant to help them understand the issues to which the evidence may relate and that I will explain to them which principles of law apply to their decision, and it is their duty to follow my instructions. [ 49 ] A mistrial should only be granted as a last resort in the clearest of cases where there is no other way to save the trial, including by a jury instruction.

In this case, while not strictly required, I have decided to provide a specific jury instruction on the issue of the absence of evidence of a motive to fabricate and the use that can be made of this factor in assessing the Complainant’s credibility. VI. Conclusion [ 50 ] I find no irregularity in the impugned closing statement of the Crown. The application for a mistrial is therefore denied. Heard on the 8 th day of December, 2023. Oral Decision on the 11 th day of December, 2023 Dated at the City of Edmonton, Alberta this 22 nd day of December, 2023. A. Loparco J.C.K.B.A.

Appearances: Ryan Pollard Justice and Solicitor General for the Crown Jordan Titosky Liberty Law LLP

for the Accused _______________________________________________________ Corrigendum of the of The Honourable Madam Justice Loparco _______________________________________________________ Grammatical, citation corrections, and other minor changes to paragraphs throughout.