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PROCEDURE - Trial judge's duties - Assessing credibility of witnesses

Monday, December 23, 2019 @ 6:17 AM  

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Appeal by the accused, MS, from convictions for sexual interference and invitation to sexual touching. The complainant was the accused's stepdaughter. She made allegations regarding three separate incidents alleged to have occurred in the family home. At trial, the accused denied the allegations. On cross-examination, the Crown asked the accused for insight into the complainant's motivation for fabrication. The accused stated that he did not know what the complainant's motive was. The Crown presented the accused with a prior police statement in which he suggested she was motivated to fabricate the allegations due to an incident with her boyfriend. The accused acknowledged the prior statement. The accused was acquitted of sexual assault and convicted of sexual interference and invitation to sexual touching. The trial judge referred to the evidence regarding the complainant's motives in assessing credibility. The accused appealed.

HELD: Appeal allowed. The Crown's cross-examination of the accused exceeded the permissible scope. The accused testified directly that he did not know the complainant's motives. Although the accused's prior statement to police raised an inconsistency, there was no onus on the accused to comment on the complainant's credibility during cross-examination. The trial judge erred in law by shifting the burden of proof through using the cross-examination evidence of the accused to discredit his credibility and enhance that of the complainant. The absence of proven motive to fabricate did not equate with truthfulness and could not be used to impugn the accused's credibility. A new trial was ordered.

R. v. M.S., [2019] O.J. No. 5633, Ontario Court of Appeal, M.L. Benotto, D.M. Brown and D. Paciocco JJ.A., November 5, 2019. Digest No. TLD-December232019001