National Newswatch

TORONTO — A prosecutor should not have asked a father accused of incest about why his daughter might have made up her allegations against him, Ontario's top court ruled on Thursday.

As a result of the questioning, and the judge's refusal to stop it, the accused should get a new trial, the Court of Appeal decided. 

"The cross-examination of the appellant about the complainant's motive to lie was improper and prejudicial," Justice Mary Lou Benotto wrote for the Appeal Court. 

The father, identified only as G.H., was convicted in Superior Court in January 2017. One of his daughters had alleged in March 2015 that, over several years, he had touched her sexually and had intercourse with her.

At trial in Kingston, Ont., the defence argued the 11-year-old girl had made up her allegations in an effort to have her mother, who was travelling for work, return home.

The father, in answer to prosecution questions, denied any wrongdoing and said his daughter was lying. The prosecutor pressed G.H. over defence objections to come up with a reason his daughter would lie.

Justice Wolfram Tausendfreund, presiding over the trial, allowed the questioning, saying he thought it relevant to explore what G.H. thought had motivated his daughter to make her allegations. The father said it appeared the girl missed her mother and had made up the story to get her to come home.

The Crown in closing heaped scorn on the father's testimony about his daughter's motivation for lying.

On appeal, G.H. argued the judge was wrong to allow the line of questioning.

In quashing the guilty verdict, the Appeal Court agreed it was improper to ask an accused to comment on the credibility of his accusers. One reason, the court said, is that a jury might unfairly view the accused negatively for being unable to provide a compelling reason for why a complainant made the allegations.

"The questions did not concern the relationship between the family members, but rather asked the appellant to offer an explanation for the complainant's allegations," Benotto wrote. "The questioning was misleading because the jury could have been left with the impression that he should have had a credible explanation for the allegations."

Also, a key issue at trial was where the daughter had slept the night before she made her complaints. One witness had told police the complainant started out sleeping with her, but got up in the night to go sleep in her father's room.

At trial, the witness said she was confused when she talked to police and distanced herself from her statement.

G.H. argued on appeal that the judge had failed to properly instruct the jury about the inconsistent statements.

In response, the Appeal Court said the judge should have been clear that the jury could not assume the police statement was true. His failure to be explicit, the court said, amounted to a legal error.

The Appeal Court rejected the Crown's position that no miscarriage of justice had occurred even if the errors were made, and ordered a new trial.

The Canadian Press first published this story on Jan. 2, 2020.

Colin Perkel, The Canadian Press

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