Cross-Examining the Accused about why the Complainant Would Falsely Accuse Him
Questions in cross-examination that ask an accused
person to explain why a complainant would fabricate his or her allegations are
improper.
R. v. Rose, 2001 CanLII
24079 (ON CA), at para. 27: It is improper to call upon an accused to
comment on the credibility of his accusers.
See also R. v. L.L., 2009 ONCA
413 (CanLII), at paras. 15-16.
The
concern with this line of questioning is two-fold:
1.
It is unfair to ask an accused to speculate
about a witness’s motives;
2.
These
questions risk shifting the burden of proof. The burden is on the Crown to
prove beyond a reasonable doubt that a complainant’s allegations are true. Yet
questions to an accused about a complainant’s motives may cause the trier of
fact to focus on whether the accused can provide an explanation for why a
complainant would make false allegations, and find the accused guilty if a
credible explanation is not forthcoming.
R. v. T.M., 2014 ONCA 854,
at paras. 37-38.
The
fact that it may be appropriate for the
police as part of an investigation to ask the accused to explain why the
complainant made the allegations against him does not mean that portions of an
accused's statement in which such questions are asked are properly admissible
at trial.
R. v. L.(L.),
2009 ONCA 413, 96 O.R. (3d) 412, at para. 17.
R. v. F.(C.),
[1996] CanLII 623 (Ont. C.A.).
The
Crown is entitled to cross-examine on inconsistencies between what the accused stated
to police as the complainant s motive for accusing him and what he later states
in examination-in-chief.
R. v. M.S.,
2019 ONCA 869, at para. 8.
Stuart O’Connell, O’Connell Law Group (All
rights reserved to author).
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