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It’s improper to ask an accused to touch upon why a sufferer would lie, the case of R. v. R.H.
Yesterday the Courtroom of Enchantment of Ontario launched the judgment R. v. R.H. which reversed a discovering of guilt and entered an acquittal the place a decide improperly allowed, and regarded, the lack of an accused to supply an reason why the complainant may lie about her alleged sexual assault. Though it’s nicely settled legislation that it’s improper to ask one other witness to touch upon the veracity of one other witness, the decide permitted the next line of questioning:
Q. So Mr., Mr. [H.], I’m going to counsel that, that you simply actually haven’t any rationalization in any respect about the place this allegation would come from?
A. No.
Q. Okay. Actually from what your proof is, it’s not like she’s complicated some harmless encounter that you simply had together with her.
A. No.
Q. Doesn’t match up with something which you could even recall remotely that may – that she might need crossed her wires on.
A. No.
Q. Okay. And I take it out of your solutions earlier that you simply, you felt fairly shut with [J.]
A. Very.
Q. Okay. And also you’ve by no means had expertise together with her making up lies about individuals earlier than.
A. I have no idea [J.] to be a liar.
Q. I’m going to counsel Mr. [H.] that, you already know, you’ve stated you don’t know her to be a liar, it’s not even remotely in line with one thing, some harmless contact that you simply’ve had together with her, that the one rationalization actually is that what [J.] was describing is one thing that occurred.
A. Please reword the query, I didn’t get that.
Q. I’m suggesting to you that [J.]’s not mendacity and it’s not – she hasn’t crossed her wires on some harmless contact that you simply had together with her since you’ve stated it’s not remotely like something you’ve – contact you’ve had together with her. That the one rationalization is that what she’s described is true.
A. I have no idea.
Effectively settled legislation ignored in keeping with the Courtroom of Enchantment of Ontario.
In reversing the trial decide’s verdict, the Courtroom of Enchantment discovered that this impropriety in examination is nicely settled. Such questioning is unfair to a witness because it requires the particular person to invest on motivations that they is probably not conscious of. Though it could be improper to ask a query of any witness, this unfairness is aggravated additional when it’s requested of the accused because it forces them ” to advocate the case when his function is to testify as a witness” (citing McWilliams’ Canadian Prison Proof). It additionally reverses the presumption of innocence and locations the burden upon the accused to clarify why an individual may increase false allegations towards them and failing to take action, drawing an antagonistic inference towards them.
Examples of some of these improper questions, that I’ve heard over time, and that ought to lift purple flags for any advocate would come with:
- Why would he/she lie?
- What profit would the sufferer get from mendacity?
- How may the sufferer give you such a narrative if it wasn’t true?
- Do you assume the police instructed the sufferer what to say?
- Why would the accused plead not-guilty if he wasn’t harmless?
- and so on.
Though not talked about by the Courtroom of Enchantment on this case, such a prohibition towards asking to commenting on the veracity of different witnesses, or asking to supply a motive to lie may also be discovered within 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.), depart to enchantment refused (1996), 104 C.C.C. (3d) vi (S.C.C.). R. v. Ruptash (1982), 68 C.C.C. (2nd) 182; R. v. Brown (1982), 1 C.C.C. (3d) 107 (C.A.), affd. [1985] 2 S.C.R. 273, 21 C.C.C. (3d) 477; R. v. A.R. [1994] 4 W.W.R. 620, 88 C.C.C. (3d) 184 (Man. C.A.).
The submit The impropriety of commenting on the veracity of another witness: R. v. R.H. Ont.C.A. (2013) first appeared on Robichaud’s Criminal Lawyers.
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