R v Bernier, 2021 ABCA 27
[19] An accused person cannot be called upon to explain or theorize as to why a complainant would make an allegation against him. As this Court stated in R v MJB, 2012 ABCA 119 at para 32, 524 AR 213 [MJB], “the Crown is not entitled to cross-examine an accused on the veracity of Crown witnesses, or invite comment from the accused about the witness’s possible motive to lie”; see also S. Casey Hill et al, McWilliams’ Canadian Criminal Evidence, 5th ed, loose-leaf (Toronto: Canada Law Book, 2013) at 21:30.70.20.
[20] There is a long history behind the rule in Canada dating back at least as far as the 1935 decision of the Supreme Court of Canada in Markadonis v The King, 1935 CanLII 44 (SCC), [1935] SCR 657 at 658-659. Since then it has been affirmed by appellate courts across the country, including this one, many times: see, for example, R v Brown, 1982 ABCA 292, 41 AR 69, aff'd 1985 CanLII 3 (SCC), [1985] 2 SCR 273 [Brown]; Kusk at para 6; MJB; R v Hilton, 2016 ABCA 397 at para 62, 343 CCC (3d) 304; R v Ellard, 2003 BCCA 68 at paras 21-24, 172 CCC (3d) 28 [Ellard]; JL c R, 2017 QCCA 398 at para 85; R v Gallie, 2015 NSCA 50 at para 33, 324 CCC (3d) 333; R v Bear, 2008 SKCA 172 at para 24, 320 Sask R 12 [Bear 2008]; R v Bear, 2020 SKCA 86 at paras 74-75 [Bear 2020]; R v GH, 2020 ONCA 1 at para 24, citing R v Rose, 2001 CanLII 24079 (Ont CA) at para 27, 153 CCC (3d) 225 (“this court has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers”).
[21] The rationales for such a prohibition are multiple, though most often it is said that this questioning is impermissible because it undermines the presumption of innocence by shifting the onus of proof to the accused: Kusk at para 11; MJB at para 33; R v LL, 2009 ONCA 413 at para 16, 244 CCC (3d) 149 [LL]. As cogently stated by the British Columbia Court of Appeal in Ellard at para 22:
The potential prejudice arising from this form of questioning is that it tends to shift the burden of proof from the Crown to the accused. It could induce a jury to analyze the case on the reasoning that if an accused cannot say why a witness would give false evidence against her, the witness’s testimony may be true. The risk of such a course of reasoning undermines the presumption of innocence and the doctrine of reasonable doubt. The mind of the trier of fact must remain firmly fixed on whether the Crown proved its case on the requisite standard and not be diverted by the question whether the accused provided a motive for a witness to lie.
Such a diversion into “whether the accused can provide an explanation for why a complainant would make false allegations” is dangerous because it risks having the trier of fact “find the accused guilty if a credible explanation is not forthcoming”: R v TM, 2014 ONCA 854 at para 38, 318 CCC (3d) 421.
[22] The Crown in this case does not dispute the general prohibition against Crown counsel asking an accused why a witness would lie. Moreover, at the oral hearing the Crown acknowledged as “concerning” the paragraph in the Decision in which the trial judge noted that Mr. Bernier’s answers to the impugned questioning during the police interview “casts a shadow of implausibility over the totality of what he said”: para 137. However, the Crown provided a number of reasons for why the impermissible questioning did not amount to a reversible error requiring a new trial. We reject each of them.
[23] First, although not strongly pressed by the Crown, it was noted that the rule is generally applied to cross-examination at trial, whereas in the present case the questioning was part of a police interview. However, Mr. Bernier argued that the same principles should apply where, as here, an accused’s statement is admitted into evidence. We agree. While it might have been advisable for the police statement to have been edited beforehand, the ultimate point is that the questioning, impermissible at trial, was inadmissible and not to be relied upon by the trier of fact. Counsel was entitled to presume that such inadmissible questioning would not be used by the trial judge based on a proper application of the identified legal principle that an accused cannot be asked why a witness would lie.
[24] A case in point is the decision in LL, where the Ontario Court of Appeal concluded that portions of a videotaped statement in which police asked the accused why the complainant would make the allegations, and the answers thereto, should not have been put before the jury: paras 9-13. The Court applied the general rule that it is improper to ask an accused why a complainant would fabricate allegations, the reasons being two-fold: i) it is improper to invite one witness to comment on the veracity of another, and ii) such questions risk shifting the burden of proof: paras 14-16. As to the fact that the questioning took place during a police interview rather than at trial, the Court said this:
[17] Contrary to the submissions of the trial Crown, the fact that it may be appropriate for the police to ask such questions as part of an investigation does not mean that portions of an accused’s statement in which such questions are asked are properly admissible. This court made that clear in [R v F(C), [1996] CanLII 623 (Ont CA)]. In that case, even though no objection was raised at trial, this court held that portions of an accused’s statement to the police asking him to explain why the complainant made the allegations and why some people believed the complainant should not have been placed before the jury. [Emphasis added]
The same rationale applies here. The impugned questions and answers in Mr. Bernier’s police interview were inadmissible at trial even though the detective was allowed to proceed as he did during the investigation.
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