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Evidence - Embellishment. R. v. Vannoordennen
In R. v. Vannoordennen (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "two counts each of sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), sexual assault (s. 271), and making child pornography[2] (s. 163.1(2)), as well as single counts of invitation to sexual touching (s. 152) and sexual exploitation (s. 153(1)(a))".
Here the court considers the credibility effect of a witness' 'lack of embellishment':Lack of Embellishment
[39] The trial judge mentioned lack of embellishment in relation to both complainants. With respect to J.H., she said:[J.H.] gave his evidence in a straightforward way, recounting details of sexual encounters he had with the accused starting when he was in grade six or seven and which continued while [he] was in high school. He was candid about his drug and alcohol abuse. I did not sense that he embellished or overstated his evidence. He did not exaggerate the number of encounters he and the accused had. For example, he did not testify that sexual contact occurred on every occasion that they were together. He was candid to say in examination in-chief that he could not remember the very first time, although in cross-examination he said he believed it had occurred in the limousine. He similarly testified that the accused took photographs of him, but he did not exaggerate how often. A handful of times, he said. [Emphasis added.] [40] As for I.H., the trial judge said he “also gave his evidence in a straightforward way. Like his brother, he did not exaggerate or embellish the number or detail of his encounters with the accused.”
[41] These types of references can sometimes be problematic. As the Supreme Court of Canada said in R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 5:[L]ack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie. [42] In R. v. Kiss, 2018 ONCA 184, Paciocco J.A. held, at para. 53:[T]here is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness' evidence, or that the evidence stood up to cross-examination. [43] The trial judge’s references to lack of embellishment were appropriate and consistent with the approach in Kiss. She made general observations about the evidence of both complainants. Reading her reasons as a whole, she did not cross the line and use this factor as a makeweight in favour of credibility. Moreover, at trial, the appellant alleged that both complainants had various motives to lie and that the allegations were fabricated. As Gerrard makes clear, lack of embellishment may be relevant to this issue. It would have been better had the trial judge made an explicit link between these two factors. Nonetheless, trial judges are presumed to know the laws of evidence. I am not persuaded that she erred in relying on this factor. . R. v. J.F.
In R. v. J.F. (Ont CA, 2025) the Ontario Court of Appeal considered the evidentiary issue of 'embellishment':[9] With respect to the second ground of appeal, the trial judge made no error in considering the complainant’s “lack of embellishment” as a factor in assessing her credibility. The defence put it to the complainant in cross-examination and argued in closing that she had lied in her allegations to the police and was exaggerating in order to get the appellant arrested and out of the family home. The defence, in effect, was arguing that the complainant should be disbelieved because she had a motive to lie and was in fact lying. There was nothing untoward about the trial judge rejecting that submission and concluding that the complainant was not embellishing her evidence: R. v. J.M., 2025 ONCA 597, at para. 13.
[10] On other occasions, what the trial judge referred to as a lack of embellishment would have been better characterized as the complainant’s willingness to make admissions that were against her interest, in that they might have tended to make her look less believable. For example, the complainant accepted that she also drank and used drugs, was volatile in her interactions with the appellant, and had concealed from the appellant that she had taken out a student loan which impacted household finances. This was not what Moldaver J. cautioned against in R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 5, of simply believing a witness because her evidence is free of exaggeration. . R. v. D.W.
In R. v. D.W. (Ont CA, 2024) the Ontario Court of Appeal considered the role of testimonial 'embellishment' as a factor in witness credibility:[20] At para. 5 of the R v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, the Supreme Court held that while the lack of embellishment cannot be used to bolster a complainant’s credibility, it (1) may be relevant in assessing credibility and (2) can be considered as a factor in assessing whether the complainant had a motive to lie. This court expressed a similar view at para. 53 of R. v. Kiss, 2018 ONCA 184, saying:[T]here is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. [21] When the trial judge’s reasons are read in context and as a whole, it is clear he used the complainant’s lack of embellishment appropriately. While relevant to his assessment of the complainant’s credibility, he did not use it as a makeweight in favour of it. Further, the trial judge’s reference to a lack of embellishment was a factor he considered in assessing whether the complainant had a motive to lie, as the appellant had alleged. As noted above, this is permissible: Gerrard, at para. 5. . R. v. J.F.
In R. v. J.F. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here commenting on the role of 'embellishment' in evidence:[31] With respect to the sexual assault conviction, the appellant again notes that this portion of the complainant’s evidence was not corroborated by the photos, and he asserts that the trial judge, in saying that the complainant’s evidence about the sexual assault was brief and to the point but appeared free of exaggeration, impermissibly used the lack of exaggeration as a factor to support the complainant’s credibility. The appellant refers to this court’s decision in R. v. Kiss, 2018 ONCA 184, at paras. 52-53, as authority that, while the presence of exaggeration or embellishment can undermine credibility, its absence tends to be a neutral factor, and R. v. Alisaleh, 2020 ONCA 597, at para. 16, where this court observed that “it is wrong to reason that because an allegation could have been worse it is more likely to be true”. According to the appellant, the trial judge reasoned in this way, concluding that, since the sexual assault allegation could have been worse, it was more likely to be true.
[32] I do not agree that the trial judge improperly relied on the complainant’s lack of exaggeration in his assessment of her credibility.
[33] Provided that it is not used as a “makeweight in favour of credibility”, it is appropriate for a trial judge to note that a witness has not embellished their evidence. Like the observation that there were no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination, this is not a factor showing credibility, but explains why a witness has not been found to be incredible: Kiss, at para. 52. And, as Moldaver J. explained in R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, while the lack of embellishment or exaggeration cannot be used to bolster a complainant’s credibility, it may properly be considered as a factor in assessing whether the witness had a motive to lie: at para. 5.
[34] In this case the appellant relied on an alleged motive to lie about the incidents of violence. He claimed that the complainant, who was jealous and angry, had threatened he would go to jail and never get to see his son again, and that she followed through with her threats when she went to the police. The fact that the complainant had not exaggerated her evidence about the sexual assault was properly considered by the trial judge. In any event, unlike in Alisaleh where the trial judge had erred in using lack of embellishment as one of two important factors to “enhance” the complainant’s credibility, when the trial judge’s reasons are considered as a whole it is clear that he did not accept the sexual assault allegation simply based on a lack of exaggeration. The digital penetration was part of a prolonged attack on the complainant alleged to have occurred on January 27, which was denied in its entirety by the appellant. The trial judge’s acceptance of the complainant’s evidence about the sexual assault, as well as all of the other offences that took place that day, was informed by his observations that her evidence was “rational”, “compelling”, “logical and convincing,” and (in respect of the physical assaults) “powerfully consistent” with the photos taken by the police.
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