Defence counsel must be ready to object to any variation of the following line of questioning during the Crown Attorney’s cross-examination of an accused:
Why would the complainant lie?
Why would the complainant go through all of this if it didn't happen?
Can you offer us any explanation or think of any reason why the complainant would make a false allegation against you?
There are several reasons why this area of cross-examination is improper and may compromise your client’s right to a fair trial.
1) The line of questioning encourages a reversal of the burden of proof
An accused is presumed innocent in a criminal trial and the state bears the burden of proving an allegation beyond a reasonable doubt.
An accused is not required to prove anything. The focus of a criminal trial is always on what the Crown can prove by way of admissible evidence.
The Crown’s question implies to a jury that there is a burden on an accused to prove a motive for the complainant’s allegations. As stated by Justice Simmons, speaking for a unanimous Ontario Court of Appeal:
….questions of this type create a risk of shifting the burden of proof because they may mislead the trier of fact into focusing on whether the accused can provide an explanation for the complainant’s allegations instead of focusing on the central issue of whether the Crown has proved beyond a reasonable doubt that the allegations are true ….such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a “reasoned or persuasive” response…[R. v. L. (L.), 2009 ONCA 413 at para. 16]
2) The line of questioning calls for speculation
An accused cannot be compelled to speculate or ‘take a guess’ as to what may be motivating another individual’s behaviour.
If an accused does have personal knowledge of a complainant’s motive to lie, defence counsel will lead this evidence during the accused’s examination-in-chief in an effort to raise a reasonable doubt.
3) The line of questioning requires an accused to comment on the veracity of another witness
The line of questioning is also problematic because it compels the accused to comment or to provide an opinion on the truthfulness of the complainant’s testimony.
It is not the place of the accused to comment on the veracity of the testimony of another witness. An accused can only provide his or her position or account of the matter that is before the Court. As stated by Justice Simmons, again speaking for a unanimous Ontario Court of Appeal:
….it is improper to invite one witness to comment on the veracity of another….This principle has particular application to an accuser and the accused. …this court “has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers”… (R. v. L. (L.), supra at para. 15)
The assessment of the credibility of a witness for the prosecution lies solely within the purview of the judge or the jury.
The bottom line:
· Counsel must be ready to object to this prohibited line of questioning.
· A trial judge also has a duty to protect an accused’s right to a fair trial by barring this line of questioning. As stated by a unanimous Ontario Court of Appeal:
The failure of counsel to object does not….give Crown counsel carte blanche at trial or immunize the cross-examination from appellate scrutiny (R. v. A.F.,  O.J. No. 3033 (C.A.) at para. 6).
· With respect to a corrective instruction, counsel should ask the judge to instruct the jury “that there is no onus on the (accused) to provide a motive for the complainant’s allegedly false allegations.” (R. v. A.F., supra, at para. 6).
· When an accused testifies during examination-in-chief that the complainant has a motive to fabricate the Crown is permitted to challenge that evidence during cross-examination (see R. v. Ellard, 2003 BCCA 68 at para. 24).