Yesterday the Court of Appeal of Ontario released the judgment R. v. R.H. which reversed a finding of guilt and entered an acquittal where a judge improperly allowed, and considered, the inability of an accused to provide an explanation why the complainant might lie about her alleged sexual assault. Although it is well settled law that it is improper to ask another witness to comment on the veracity of another witness, the judge permitted the following line of questioning:
Q. So Mr., Mr. [H.], I’m going to suggest that, that you really have no explanation at all about where this allegation would come from?
Q. Okay. Certainly from what your evidence is, it’s not like she’s confusing some innocent encounter that you had with her.
Q. Doesn’t match up with anything that you can even recall remotely that would – that she might have crossed her wires on.
Q. Okay. And I take it from your answers earlier that you, you felt quite close with [J.]
Q. Okay. And you’ve never had experience with her making up lies about people before.
A. I do not know [J.] to be a liar.
Q. I’m going to suggest Mr. [H.] that, you know, you’ve said you don’t know her to be a liar, it’s not even remotely consistent with something, some innocent contact that you’ve had with her, that the only explanation really is that what [J.] was describing is something that happened.
A. Please reword the question, I didn’t get that.
Q. I’m suggesting to you that [J.]’s not lying and it’s not – she hasn’t crossed her wires on some innocent contact that you had with her because you’ve said it’s not remotely like anything you’ve – contact you’ve had with her. That the only explanation is that what she’s described is true.
A. I do not know.
In reversing the trial judge’s verdict, the Court of Appeal found that this impropriety in examination is well settled. Such questioning is unfair to a witness as it calls for the person to speculate on motivations that they may not be aware of. Although it would be improper to ask a question of any witness, this unfairness is aggravated further when it is asked of the accused as it forces them “ to advocate the case when his role is to testify as a witness” (citing McWilliams’ Canadian Criminal Evidence). It also reverses the presumption of innocence and places the burden upon the accused to explain why a person might raise false allegations against them and failing to do so, drawing an adverse inference against them.
Examples of these types of improper questions, that I have heard over the years, and that ought to raise red flags for any advocate would include:
- Why would he/she lie?
- What benefit would the victim get from lying?
- How could the victim come up with such a story if it wasn’t true?
- Do you think the police told the victim what to say?
- Why would the accused plead not-guilty if he wasn’t innocent?
Although not mentioned by the Court of Appeal in this case, such a prohibition against asking to commenting on the veracity of other witnesses, or asking to provide a motive to lie can also be found in the following line of authorities: R. v. Yakeleya (1985), 20 C.C.C. (3d) 193 (Ont. C.A.); R. v. Kusk (1999), 132 C.C.C. (3d) 559 (Alta. C.A.); R. v. N. (P.L.F.) (1999), 138 C.C.C. (3d) 49 (Man. C.A.); R. v. Vandenberghe (1995), 96 C.C.C. (3d) 371 (Ont. C.A.); R. v. DeFrancesca (1995), 104 C.C.C. (3d) 189 (Ont. C.A.), leave to appeal refused (1996), 104 C.C.C. (3d) vi (S.C.C.). R. v. Ruptash (1982), 68 C.C.C. (2d) 182; R. v. Brown (1982), 1 C.C.C. (3d) 107 (C.A.), affd.  2 S.C.R. 273, 21 C.C.C. (3d) 477; R. v. A.R.  4 W.W.R. 620, 88 C.C.C. (3d) 184 (Man. C.A.).