R. v. L.L., 2009 ONCA 413
[14] Questions in cross-examination that ask an accused person to explain why a complainant would fabricate his or her allegations are improper for two reasons.
[15] First, as a general matter, it is improper to invite one witness to comment on the veracity of another: R. v. Brown (1982), 1982 ABCA 292 (CanLII), 1 C.C.C. (3d) 107 (Alta. C.A.) affirmed 1985 CanLII 3 (SCC), [1985] 2 S.C.R. 273. This principle has particular application to an accuser and the accused. As noted by Charron J.A. in R. v. Rose, (2001), 2001 CanLII 24079 (ON CA), 53 O.R. (3d) 417 (C.A.) at para. 27, this court “has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers”.
[16] Second, questions of this type create a risk of shifting the burden of proof because they may mislead the trier of fact into focussing on whether the accused can provide an explanation for the complainant’s allegations instead of focussing on the central issue of whether the Crown has proved beyond a reasonable doubt that the allegations are true: R. v. S.(W.) (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), leave to appeal to the S.C.C. refused, [1994] S.C.C.A. No. 290. ; R. v. Ellard (2003), 2003 BCCA 68 (CanLII), 172 C.C.C. (3rd) 28 (B.C.C.A.). As this court said in R. v. F.(C.), [1996] CanLII 623 (Ont. C.A.), such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a “reasoned or persuasive” response.
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