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Evidence - Embellishment. 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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