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In R v. Alisaleh, the Ontario Court of Appeal (“ONCA”) recently considered whether a complainant’s absence of exaggeration supported a positive finding credibility. This decision strikes an important reminder for counsel, in both a civil and criminal context, to carefully review what elements of their client’s testimony will support a finding of credibility, and which could ultimately pose as a red herring, and an incorrect inference, during closing submissions.

The complainant, M.N., met Mr. Alisaleh, the Applicant, in March 2017. M.N. was a college student at that time. At trial, she testified that she went to Mr. Alisaleh’s apartment after class on March 8, 2019. She and Mr. Alisaleh smoked marijuana and engaged in consensual sexual activity for approximately one hour. M.N. testified that she withdrew her consent when the sex became rough. She was crying and told him to stop. According to M.N., Mr. Alisaleh told her to let him “finish” and then tried to penetrate her anally. She pushed him off her and got dressed.

M.N. asked Mr. Alisaleh to drive her home. He refused, and similarly refused to pay for a taxi. M.N. called a friend to pick her up. Her friend’s mother, A.P., came to pick her up shortly thereafter. M.N. later discovered that her boots, jacket, and knapsack were still in the apartment and the door was locked.

M.N. called the police to help her retrieve her belongings. After receiving information from M.N. about the alleged assault, the police took her to the hospital where a sexual assault examination was performed. Mr. Alisaleh was charged with sexual assault.

At trial, Mr. Alisaleh did not testify, leaving the court to assess M.N.’s credibility to support its finding. The court held that the factors such as inter alia inconsistencies in testimony, corroboration, motive to lie, lies told in the past, and plausibility vs. implausibility would either enhance or refute a finding of credibility in M.N.’s testimony.

The Defence questioned M.N.’s credibility on several grounds; namely, inconsistencies in her evidence, inconsistencies about her use of birth control, and her behavior after the assault. The court did not find M.N. lacked credibility on any of these grounds.

However, the court went a step further to find that the absence of exaggeration served to enhance M.N.’s credibility:

M.N. did not appear to exaggerate her allegations against Mr. Alisaleh…Every allegation of sexual assault is serious. Nonetheless, the allegations made by M.N. are relatively modest. She did not suggest he penetrated her or ejaculated after she told him to stop. She did not suggest she was screaming or shouting at him to stop…Rather, she gave a measured description of what took place between them without apparent exaggeration.

The court found Mr. Alisaleh guilty of sexual assault beyond a reasonable doubt.

Mr. Alisaleh appealed the conviction on three grounds, the first of which arguing that the court erred in treating a lack of embellishment as enhancing the witness’s testimony. The ONCA emphasized that it is not an error to “simply note that there is an absence of embellishment in the complainant’s testimony”. However, it is incorrect to reason that because an allegation “could have been worse, it is more likely to be true”.

In this case, the court was not simply noting that the complainant’s testimony did not suffer the problem of exaggeration; the court relied on this lack of embellishment as an important “factor” to enhance her credibility. As the Defence argued during closing submissions, “you don’t get points for not exaggerating”. The ONCA agreed that the trial decision erred in its reliance on this factor, allowing the appeal and ordering a new trial.

This decision is a stark reminder for counsel to clearly review which factors will support a finding of credibility, and which factors may support an incorrect inference, and ultimately overturn a decision.

Please do not hesitate to contact me for more information on topics covered in this post.

Kaitlin Brennan

Associate – Civil Litigation and Personal Injury Law Groups

Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving.

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