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In R. v. Clyde, 2024 ONCA 113 the Court of Appeal overturned a jury conviction due to an improper linkage by the Crown in its closing address about lack of motive to bolster the credibility of the complainant when it was reliability of the complainant’s evidence at question.
In this case the Court of Appeal noted that “in the absence of the jury, the trial judge raised concerns with this part of the Crown closing, asking whether the Crown invited the jury ‘several times’ to look for an answer from the appellant for why the complainant accused him. The court then took a brief recess to consider this issue. When the trial judge returned, she stated that she would not provide a corrective instruction.”
There is a difference between an absence of motive and a proven absence of motive. In this case, there was simply no motive raised by the defence. This case highlights the dangers of shifting the burden of proof to the accused by suggesting that a motive to fabricate is required by the defence.
As stated by the Court of Appeal, “the Crown’s closing invited the jury to link an absence of motive with reliability. In fact, the Crown went so far as to tell the jury that ‘the only logical conclusion’ that could be drawn from the appellant’s good relationship with the complainant was that ‘she could not possibly have misremembered or misperceived what had happened’.”
While it is common for people to wonder why a person would lie about a sexual assault, this case is a stark reminder that it is improper to foist upon the accused any requirement to explain why a person would lie.
