In 2020, the Alberta Court of Appeal, in R. v. JOL, 2020 ABCA 73, ordered a new trial of a sex assault conviction from the Court of Queen’s Bench.  The appeal was successful due to the trial judge failing to properly charge the jury, with respect to the proper purpose of an admitted Agreed Statement of Facts, which the adduced evidence of motive to fabricate by the complainant, and generally failing to charge the jury to consider a motive to fabricate in assessing the complainant’s credibility.   

It was alleged at trial that between 2014 and January 2016, the appellant and the complainant were in an intimate relationship and shared an apartment.  LS was the complainant’s friend, who stayed at the apartment between December 24, 2016 and January 17, 2016.  On January 17, 2016, the complainant and the appellant ended their relationship.  That night it was alleged that the appellant sexually assaulted the complainant.  The appellant did not dispute that sexual intercourse had occurred but maintained that it was consensual.   The only witnesses at trial were the complainant and the appellant.  Thus, credibility was the central issue at trial.

The complainant testified that on May 24 or 25, 2016, LS had told her that the appellant had sexually assaulted her three times during her visit over Christmas in 2016.  After this conversation, the complainant went to the appellant’s residence and slashed some property with a knife.   After these events, the complainant reported to the police that on January 17, 2016, the appellant had sexually assaulted her.  The Crown then read into evidence an Agreed Statement of Facts where it was admitted that during the investigation the police had contacted LS about the three sex assaults that LS reported to the complainant.  LS admitted to the police officer that she had consensual sex with the Accused three times during her stay, and that she was never sexually assaulted by the Accused.   The trial judged delivered a mid-trial instruction to the jury, which omitted instruction regarding the evidence contained in the Agreed Statement of Facts.  The appellant later testified that he had consensual sex three times with LS, and that had consensual sex on January 17 with the complainant.   

The key issue on appeal was the improper instructions to the jury by the trial judge, with respect to the evidence from the Agreed Statement of Facts, and by properly instructing the jury to consider the motive to fabricate in assessing the complainant’s evidence.  The Crown and the defence counsel had different motives for that evidence been admitted.  The Crown wanted the evidence to show the “state of mind” of the complainant when she slashed the property with the knife.  On the other hand, the defence wanted this evidence to challenge the complainant’s credibility regarding her conversation with LS, and to argue that the complainant had a motive to fabricate the allegations regarding January 17, 2016 (she was motivated by anger that the complainant cheated on her with LS or that he had sexually assaulted her friend).  The error the trial judge made in his mid-trial instruction to the jury, was being clear for what purpose the evidence from the Agreed Statement of Facts was being tendered.  This could have resulted in the jury engaging in propensity reasoning and considering bad character evidence suggested by the complainant (that he had previously assaulted her friend).   The Court of Appeal found that this improper jury instruction that could have resulted in a miscarriage of justice. 

The trial judge also declined to put to the jury the specific instructions on a possible motive to fabricate by the complainant, citing a concern that it may influence the jury’s assessment of the complainant’s credibility.  The Court of Appeal cited – R. v. CEK, 2020 ABCA 2 at para 26; R. v. Zapeda, 2018 ABCA 425 at para 10; R. v. Batte, 49 OR (3^rd) 321 at paras 119-121, 134 OAC 1 (CA) – for the principle that “while not determinative, the existence of a motive to fabricate is relevant to assessing credibility.”  This applies to all matters, including sexual assault trials.  The jury should have been clearly instructed to consider the complainant’s motive to fabricate the sex assault in light of the conversation she had with LS in May of 2016.  As such, a new trial was ordered. 

In a 2021, the Alberta Court of Appeal, in R. v. Bernier, 2021 ABCA 27, ordered a new trial on a sex assault conviction. The appeal was successful due to the trial judge wrongfully relying on evidence taken from the police interview of the accused, to the effect that the complainant had fabricated a conspiracy against him. This was offside the rule that a witness cannot be called upon to impeach the evidence of other witnesses in a trial.

It was alleged at trial that Bernier attended a house party at around 1 am, where after he engaged in consensual sex with another witness, MD. Afterwards he entered the bedroom of the complainant at around 3 am and performed oral sex and then had vaginal sex with the complainant. The complainant testified that she had consumed alcohol and marijuana that evening and was sleeping at the time of the assault in the bedroom next to MD’s. She woke up to find Bernier with his head between her legs, and that afterward Bernier commenced vaginal intercourse with the complainant. During the police interview Bernier indicated that the complainant was an enthusiastic participant in the sex that had occurred. The police then asked the complainant:

… The first thing you’ve got to ask yourself is why would [the complainant] lie? I mean why would [the complainant] lie? That is the absolute first thing I look at is what’s the motive here for her lying because, as traumatic as this is for you, this is also a traumatic process for her.

Why would she lie? That’s the first thing I ask. … This is why I’m saying that it’s important that I hear from you is why would she lie. Like give me a reason why she would lie? Why do you think she would lie?

Bernier’s response was, in essence, that the complainant and MD conspired to lie to the police because they were friends and they were mad that Bernier had sex the complainant after he had sex with MD. Bernier did not testify at trial and the defence argued at trial that the complainant had suffered a “blackout”, and was unable to recall consenting to the sexual acts with Bernier.

The trial judge found Bernier guilty at paragraphs 147-149 of the decision:

[147] I find that Mr. Bernier entered the spare bedroom and found C asleep. He then engaged in sexual activity with her, starting while she was asleep, including intercourse, and then concluding after she had awakened.
[148] I find that C did not and could not have effectively given consent while she was sleeping and more latterly while the oral sex transitioned to intercourse, she was not asked for nor gave her consent.
[149] I conclude that the Crown has proven all elements of the offence of sexual assault beyond a reasonable doubt.

The Court of Appeal found no issue with the trial judge’s approach to the W.D. analysis (a complicated credibility assessment, which is beyond the scope of this post). However, the Court of Appeal took issue with the following two reasons provided by the trial judge for the conviction:

[135] Finally, I have two other reasons for rejecting Mr. Bernier’s evidence.

[136] First, he alleged in the interview with Detective Levesque that the inhabitants in the house engaged in a conspiracy to frame him for sexual assault. The reason he gave for this conspiracy is that he had sex with both [MD] and C on the same night. There is nothing before me to suggest that this has engendered animus in the witnesses against Mr. Bernier. [MD] and
[TC] expressed no animus. From her presentation, I can surmise that and understand why C was
not happy about the sexual contact with Sebastian, but her credibility was not questioned.
[137] Thus, a vindictive and elaborate plot to frame Mr. Bernier, predicated on revenge and involving three and perhaps up to five individuals (at least two of whom profess to be friends of Mr. Bernier), strikes me as a rather implausible explanation for this prosecution. This rationalization for his predicament casts a shadow of implausibility over the totality of what he said.

Focusing on these portions of the trial judge’s reasoning, the Court of Appeal reiterated the principle that an accused person cannot be called upon to explain or theorize as to why a complainant would make an allegation against him. The Court of Appeal further noted that Crown cannot cross-examine an accused on the veracity of Crown’s own witnesses, or invite comments from the accused about the witness’s motive to lie. This general principle was noted as going at least as far back as 1935 in the Supreme Court of Canada’s decisions in Markadonis v. The King, and has been adopted in at least 10 decisions from Courts of Appeal across Canada. The key rationale behind this rule, that it is impermissible to ask accused “why would some one lie about what you did?”, is that it undermines the presumption of innocence by shifting the onus of proof to the
accused. Seeking the accused to provide and explanation for why a complainant would make a false allegation is wrong because the judge can then find accused to be not credible on the ground that he could not provide a good explanation. This is what happened in this case.

The accused did not testify at trial, and those questions were not put to him by the Crown. However, the police statement, where such questions were put to the accused, were admitted into evidence at trial. The Court of Appeal relied on the decision in R. v. LL (2009 ONCA 413) the Ontario Court of Appeal stated that portions of a videotaped statement in which police asked the accused why the complainant would make the allegations, should not have been put to the jury. The reasons for not admitting into evidence such questions of the accused are two-fold: 1.) it is improper to invite one witness to comment on the veracity of the other, and 2.) asking such questions shifts the burden of proof to the accused.

The Court of Appeal in this case further commented that in additional to the police questioning of Bernier being highly prejudicial, the trial judge clearly relied on the questions asked and answers given – that Mr. Bernier believed that others at the party conspired against him to cook up this allegation because he had sex with two women in the group. Essentially the trial judge allowed the Crown to make the accused speculate about what’s going on in the complainant’s head and then
used accused’s speculation against him saying in assessing his overall credibility (truthfulness).

The Court of Appeal returned the case to the Court of Queen’s Bench for a new trial, noting that “Unfortunately, this is paradigmatic case for why the rule continues, over the decades, to have such force.”