No Apparent Reason to Lie: What does that Prove Exactly?

The law maintains a distinction between

 1. an absence of evidence of a motive to fabricate, and

2. an absence of a motive to fabricate.

R. v. L. (L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44.

It does not logically follow that, because a witness has no apparent reason to lie (absence of evidence), the witness must be telling the truth:

R. v. B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28.

The fact that a witness has no apparent motive to fabricate (absence of evidence) does not mean that the witness has no motive to fabricate.

L. (L.), at para. 44.

Evidence of a good relationship between the witness and the accused

In the context of a witness’ motive to fabricate, evidence of a good relationship between the witness and the prospective accused does no more than reinforce the absence of evidence of a proven motive, not prove the absence of motive.

 L. (L.), at para. 45.

As Justice Watt has noted: “The distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate is not easily digestible.” Indeed.

R. v. John, 2017 ONCA 622, at para. 97.


Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

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