CREDIBILITY – Goes to “witnesses”, though could be classed as exclusionary rule

3. Prior Inconsistent Statements: Other party’s witness

• 
  Unless prior inconsistent statement “adopted” by witness as true, it only goes to witness credibility, not truth of its contents (if not adopted it’s Hearsay); but this is key to cross-ex: person said 5 different versions of story
  
• 
  CEA s. 10 or s.13 BCEA:
  

• 
  When cross-examining a witness as to previous statements made in writing, or statements that have been reduced to writing/recorded, there is no requirement to produce the statement for the witness unless the intention of the cross-examination is to contradict the witness, in which case the witnesses attention must be called to those parts of the statement
  

• 
  If inconsistent materially, you’re allowed to cross-ex witness about it
  
• 
  Must be relevant to subject matter
  
• 
  Give chance to adopt or explain
  
• 
  Includes statements made by someone else but signed or acknowledged by witness as truth
  
• 
  Doesn’t include Police Officer notes (s.11) unless oral statement reduced to writing signed by accused
  

• 
  Ex. According to you witness, it was x not y, they say no it’s y not x, then you’re about to contradict so you say do you recall 2 years ago you were called to tell police, and do you recall you said x not y?
  
  
  

• 
  CEA s. 11 or s.14 BCEA:
  

• 
  Oral Statements: Proof of prior inconsistent statement may be given if witness doesn’t admit making statement on cross-ex, but first give proof of circumstances when it was made to remind them of it and ask if they made it
  

• 
  You may change evidence if they adopt: that out of court statement becomes testimony
  

4. Prior Conviction

• 
  CEA s.12 or s.15 BCEA:
  

• 
  Any witness may be asked if he has been convicted of an offence (indictment or summary), unless offence was designated under Contraventions Act and not entered after trial on indictment
  

• 
  Applies to accused where accused chooses to testify
  

• 
  Crown limited to asking for name of crime, substance and effect of indictment and place of conviction and penalty, not details of offence
  
• 
  Just undermining credibility of witness, not propensity reasoning, can be more PE
  

• 
  “Conviction” includes”
  
  • 
    Juvenile record of delinquencies
    
  • 
    Provincial offences, such as contraventions of the MVA
    
  • 
    Does not include absolute or conditional discharges, even where there was a finding of guilt
    
• 
  Except for cross-examination under s.12, an accused may not be cross-examined with respect to misconduct or discreditable associations (more limited for accused than other witnesses)
  

• 
  Need a ruling to bring prior convictions in, up to Court discretion
  
• 
  This happens in Crown’s case, but accused makes application to have record excluded or edited
  
• 
  Comes before close of Crown case: accused should know before he elects to call evidence or testify to what extent his record will be used against him when he does take the stand; if it’s out, then probably take stand
  
• 
  Jury must be warned about the limited use to which record can be put
  
• 
  Convictions alone show they’re type of person likely to tell truth (not propensity to commit a crime)
  
• 
  In circumstances, accused may apply to have a specific offence not admitted as evidence (Corbett)
  
  • 
    Similarity of previous offence to current charge
    
    • 
      Where charged with offence that is similar to previous conviction, but it doesn’t fit under similar facts exception, it should be excluded – PV outweighed by PE; i.e. jury making improper propensity decisions more likely
      
  • 
    Nature of previous conviction
    
    • 
      Crimes such as theft, fraud, cheating are regarded as conduct which reflects negatively on persons character than would a violent crime that has no bearing on honesty
      
  • 
    Remoteness or Nearness of prior conviction
    

• 
  Old convictions less probative
  

• 
  Fairness/Conduct of the defence at trial
  
  • 
    Where defence has attacked credibility of crown witnesses based on prior conviction, there is a concern about not allowing crown to cross-examine accused on his prior record – would paint an uneven picture
    
  • 
    This factor carries much less weight than first 2
    

• 
  C convicted of murder, sought to not have s. 12 apply to him at trial (had previous murder conviction); case turned on credibility and whether jury believed accused or crown witnesses
  
• 
  Application denied, previous conviction in; accused had attacked credibility of crown witnesses based on past convictions, would paint very uneven picture for jury
  

• 
  Important distinction between cross-ex re prior conviction aimed at witness’s credibility and cross-ex aimed at weakening the evidence on the matter in issue
  

• 
  Cross-ex of prior conviction: to lay down factual basis from which credibility inferences may be drawn
  
• 
  Cross-ex aimed at weakening evidence on matter at issue: for eliciting answers that are contrary to witness’s evidence in chief, attack credibility based on actual proof of witnesses unreliability in that case
  

5. Bias or corruption

• 
  Cross-ex permissible, if biased against opposing party or bribed this could affect whether jury should believe you
  

6. Direct Examination

• 
  Direct examination is conducted by party who called the witness
  
• 
  Party must not lead his own witnesses on MATERIAL points
  
• 
  Leading question is one that contains or suggests its own answer
  
• 
  But really, lead when it doesn’t matter; don’t lead when it matters
  
• 
  Directive questions, to draw witness’s attention to subject you wish to cover, not the same as leading questions
  ex. Was any money discussed?
  ex. Is that person present here in court? Maves
  

7. Cross-Examination

• 
  Any relevant/material matter in issue, including credibility, most important device for casting doubt on testimony
  
• 
  May use leading questions (not allowed in exam-in-chief), conducted by opposing party
  
• 
  Leading questions structured to drive witness to very narrow range of answers; don’t ask open Qs
  

• 
  ex. “What did you see next?” – open ended
  “You saw a car, didn’t you?” – leading
  

• 
  Cross-exam of non-accused witnesses
  

• 
  Can be about facts relevant to case, matters which might cast doubt on their credibility ex. Associations, behaviour; but independent proof of false statements by witnesses is limited by Collateral Facts Bar
  

• 
  Cross-exam of accused
  

• 
  Accused needs protection from irrelevant and prejudicial allegations, examination on discredible conduct usually not permitted; can use right of silence not to be questioned by; protects presumption of innocence so no questions on motive for exculpatory evidence
  

• 
  Where you intend to impeach/contradict a witness, counsel is bound to give that witness an opportunity to make some explanation of circumstances which suggest he’s not to be believed while still in the witness stand; fair play
  
• 
  Where not done, can be remedied by:
  
  • 
    Recalling witness (if not possible, give jury instruction)
    
  • 
    Leave special instructions to jury to consider fact witness not questioned
    
• 
  Scope questioned with R v. Dyck, but rule still generally in force
  

• 
  Counsel may ask question “isn’t it true that…” during cross-examination, where counsel asking question believes that the statement following “that” is true but has no evidence to back up the suggestion
  
• 
  There is an ethical line: can’t suggest ridiculous hypothesis or say things intended to harass/confuse witness Lyttle
  

• 
  Victim severely beaten by 5 men, ID’d L as one of them (only unmasked attacker); defence theory that victim beaten as part of drug deal and fingered L to protect real perpetrators
  
• 
  Defence allowed to put theory to victim, even though they didn’t have any facts to back it up, regarding matters that need not be proved independently, so long as they believed in good faith the suggested state of facts is true
  
• 
  Good faith basis for asking an otherwise permissible question in cross-ex allowed for expert and lay
  

• 
  Info may be incomplete or uncertain, but cannot put suggestions to witness recklessly or known false
  
• 
  Must not ask groundless question to “waft an unwarranted innuendo” into jury box
  

• 
  Questions which directly or indirectly suggest answer to witness are prohibited in exam-in-chief, ok in cross-ex
  
• 
  On introductory matters that form no part of the substance of the enquiry, it is allowable and proper for a party to lead own witnesses, leading often allowed to pass without objection (by express or tacit consent)
  
• 
  Leading questions with own witness not ok when sought to prove material and proximate circumstances; because:
  

• 
  Witness has bias in favour of party bringing him forward, and hostile to opponent
  
• 
  Party calling witness has advantage knowing what witness will prove, could only extract favourable info
  
• 
  Witness, though intending to be fair and honest, may lack education/exact knowledge of words/alertness to see what is implied, may honestly assent to leading question without expressing his real meaning
  

• 
  Rule Against Leading: Exceptions
  

1. 
   For identifying persons or things, pointing witness’ attention directly to them
   
2. 
   Where one witness is called to contradict another on expressions used by latter but which he denies using, he may be asked directly if the other witnesses used whatever expressions
   
3. 
   Whenever witness is either hostile to party calling them or unwilling to give evidence, Judge may allow rule to be relaxed; and if witness shows strong bias in favour of cross-ex party then rule stricter
   
4. 
   When non-leading questions fail to bring mind of witness to precise point on which evidence is desired, and it may be fairly supposed this failure is from temporary inability to remember [amended]
   
5. 
   If it’s complicated matter
   

• 
  If witness’ memory exhausted on contents of letter, he might be asked if it contained a particular passage recited to him, or else impossible to come to direct contradiction
  
• 
  Common to ask witness to repeat conversation from beginning; might include the lacking statement, can be tried more than once, might go to different topic then return; if not judge should allow question referring to subject matter of omitted statement, if not then direct question
  

• 
  Leading questions: suggest answer or assume a state of facts that is in dispute
  
• 
  Crown asked child, reluctant to respond, binary questions that gave her choice of answers, but this wasn’t suggesting an answer; main components of offence were elicited by non-leading, proper
  

• 
  Party who calls witness is generally not permitted to ask witness leading questions, since witness favors that party
  
• 
  But leading q’s routinely asked to elicit witness’ evidence on preliminary/non-contentious matter
  
• 
  Leading q’s permitted when necessary to direct witness to particular matter or field of inquiry
  

• 
  Does (Mr. Rose) supply you with crack cocaine? Defence objected to leading Q, Crown said it’s info I have and I’m asking him to confirm or deny, not suggesting answer – was ok
  
• 
  Crown then asked “well were you going to purchase crack cocaine from Mr. Rose on that date” and asked “would you agree with me that it seems you were there to buy crack from him” – not ok
  
• 
  Judge said those were suggestive of answers; questions concerned crucial and contentious matters
  

• 
  Issue that testimony was proffered to meet the expectations of crown and police
  

Collateral Facts Bar – Exclusionary Rule Phipson (Adopted by SCC)

• 
  Collateral Fact: Using extrinsic evidence to contradict in cross-ex; not matter relevant to material issue/credibility
  
• 
  May not, in general, impeach witness credibility by calling witnesses to contradict in irrelevant matters
  

• 
  Answers thereon will be conclusive, even if it is not the answer the interviewer was looking for
  

• 
  These questions subject only to TJ’s discretion to limit on account of factors such as time and fairness
  

• 
  Not absolute: if the answer of a witness is a matter which you would be allowed on your own to prove in evidence in that it has a connection with the issues in the case, then it is a matter in which you may contradict the witness
  
• 
  Proof of contradiction may only be given on matters:
  

1. 
   Relevant directly to substantive issues in the case
   
2. 
   Relevant to credibility if it falls within exception including: (like veracity impeachment)
   

1. 
   Prove Bias, interest, corruption
   
2. 
   Prove witness has previous convictions
   
3. 
   Evidence of reputation for untruthfulness, other witness wouldn’t believe witness under oath
   
4. 
   Expert/medical evidence on problems that could affect reliability of witness’s evidence
   
5. 
   Where foundation laid, previous inconsistent statement may be proved to contradict witness
   

• 
  Consider: Importance of witness to the case, time practicalities
  
• 
  Consider: Weight/value of evidence in support of collateral fact –more determinative evidence seeking to be called to contradict the witness more likely to be permitted – don’t want to be stuck with provable falsehood
  

Wigmore on Collateral Facts

• 
  Where a witness has told a story of a transaction crucial to the controversy, to prove him wrong in some trivial detail of time, place or circumstances is "collateral"
  
• 
  But to prove a fact recited by witness untrue that if he were really there and saw what he claims to have seen, he could not have been mistaken about, is a convincing kind of impeachment courts must allow, despite the fact that it does not meet the test of admissibility apart from the contradiction; “lynchpin facts”
  
• 
  Could the fact, which if flawed, have been shown in evidence for any purpose independently of the contradiction?
  

1. 
   Facts relevant to some issue in case
   
2. 
   Facts relevant to discrediting witness, including facts otherwise receivable for impeaching some testimonial quality, criminal record, bias, etc.
   
3. 
   Lynchpin facts: would not have been mistaken about it if story were true – added by McCormick
   

Paciocco and Struesser:

• 
  Principled approach: PV vs. PE
  
• 
  Contradiction should be allowed where PV and nature of contradictory evidence is such that it is not outweighed by counterbalancing policy concerns
  
• 
  In case of defence evidence, counterbalancing concerns must significantly outweigh value in receiving evidence
  

AG. v. Hitchcock 1847

• 
  H charged with manufacturing illegal alcohol, defence wanted to lead evidence that crown witness S took bribe
  
• 
  Could ask S if he took bribe, but when S said “no”, could not lead evidence to contradict S on this collateral point
  

• 
  Another witness overheard witness was offered a bribe before giving testimony, but in both question asked and statement out of court to be proved, he said someone tried to bribe him, reflects on briber
  
• 
  Not actual and provable which would have been evidence of bias and permissible
  

R v. Melnichuk

• 
  In correspondence guy calls himself a CA, but he isn’t chartered; charged with fraud on other issue
  
• 
  Crown says you sent letters saying chartered, he said no  Crown tried to prove showing letterhead leads defence to call in surrebuttal evidence  that witness says accountant said take “chartered” out
  
• 
  Trial within a trial; it is collateral because being chartered or not had nothing to do with nature of fraud
  
• 
  Judge still said “chartered” was fraud; case overturned
  

R v. Prebtani 2008 ONCA

• 
  Lawyer acted for him despite undertaking not to with Law Society for failing to maintain proper books and records; Prebtani didn’t know but later argued he got ineffective assistance of counsel, incompetence deprived him of fair trial and verdict unreliable
  

• 
  Cross-ex’d complainant, trying to show her nature; TJ said that evidence was collateral and inadmissible
  

• 
  Court says his lack of familiarity with Collateral Fact Rule did not affect fairness of trial; if you don’t get the rule, it isn’t negligent incapacity by lawyer; court recognizing this is hard
  
• 
  Evidence here would undermine complainant’s assertion that appellant, rather than she, was verbally abusive party; and could undermine her assertion that she would never swear at appellant for hear he would abuse her
  

R. v. Raphael

• 
  R convicted of fraud ; crown called evidence to prove he operated business and falsely represented he could get landed immigrant status for victims; asked R if he ever didn’t file taxes, R gave answer crown could contradict
  
• 
  Claimed that this was relevant as it showed R’s willingness to lie under oath, but court disallowed – this was a collateral fact relating only to credibility, crown bound by answer it received
  

Other Credibility Issues

1. Impeaching Own witness

• 
  General rule: cannot impeach/attack credibility of own witness through general evidence of bad character
  

• 
  Can’t call reputation evidence on veracity, criminal record to discredit, old discrediting acts/associations
  
• 
  Can’t cross-examine own witness
  

• 
  Why do it? If they suddenly recant, or have one good thing and rest sucks, or you want evidence out and replaced
  

• 
  At CL, where witness found to be “hostile” [betraying desire not to tell truth] to the party calling the witness, they may be cross-examined with a view of discrediting his or her own character
  

The effect of prior inconsistent statement: impeaching credibility or proving truth

• 
  Prior statements may be used to neutralize testimony given by witness at trial
  
• 
  If witness doesn’t accept statement as true, it is hearsay
  
• 
  New: Principled exception changes s.9(1) and s.9(2): if prior statement meets necessary indicia of necessity and reliability, may be admissible through principled approach exception to hearsay (KGB)
  
• 
  If witness told two different stories both under oath it’s useful for impeaching credibility
  
• 
  If prior inconsistent statement not under oath, open to witness to take position that he is now being truthful
  

Sources of Prior Inconsistent Statements

• 
  Criminal cases: sworn statements made by witness to the police, testimony by witness at prelim
  
• 
  Civil cases: transcript of party’s examination for discovery
  

Adverse Witness:

• 
  S.9(1) CEA or s.15 BCEA
  

• 
  A party producing a witness not allowed to impeach his credit by general evidence of bad character; but if court decides the witness proves adverse, the party may contradict him by other evidence, or may prove the witness made at other times a statement inconsistent with his present testimony if they first give witness circumstances of supposed statement and ask him if he did or didn’t make the statement
  

• 
  Adverse is a pre-condition to get permission to lead evidence to prove witness made prior inconsistent statements
  
  • 
    Not a pre-condition to get permission to call witness to contradict first witness; drafting error
    
• 
  Adverse means: less than hostile; opposed in interest; includes where witness’s testimony merely contradicts his proof; can be based on content of statement/evidence alone without any hostile demeanour
  
• 
  Hostile: not giving evidence fairly and with desire to tell truth because of hostile animus towards prosecution Re: Coffin
  
• 
  No cross ex at large (like CL), only on the statement; unless it rises to level of hostility
  
• 
  Interpretation/CL: you can contradict him by other evidence, even if they’re not adverse
  
• 
  Maybe you wanted a statement they said out of court before, can’t use it so stuck unless you can go through KGB exception to hearsay, so this exists
  
• 
  Hearsay Principled exception: If witness says screw you I’m sticking with what I’m saying despite inconsistent statement, you’re passing necessity requirement; can get ruling that out of court statement can be considered by jury for truth of content; impeaching own witness not just destructive now
  
  
  

Previous statements not proved adverse:

• 
  S.9(2) CEA
  

• 
  Where the party producing a witness alleges the witness made at other times an inconsistent statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, to present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse
  

• 
  Provides right of cross-examination independent of s. 9(1) on the statement with no need to prove adverse
  
• 
  Ultimate discretion lies in the court
  

• 
  Milgaard Procedure:
  

1. 
   Notice of Application under s.9(2) to court: counsel should advise court of intention
   
2. 
   Jury Excused: court should direct jury to retire
   
3. 
   Particulars of Application: advise judge of particulars of application and produce for judge the alleged statement in writing, or the writing which statement has been reduced to
   
4. 
   Assessing whether inconsistent: TJ should read it and determine, in fact, if there’s inconsistency between prior statement to evidence given in court
   

• 
  If no inconsistency, the matter ends; if there is then call upon counsel to prove statement or writing i.e. bring in other witnesses
  

5. 
   Proving Statement: counsel should prove statement or writing by producing it to witness; if they admit or reduce to writing, proof is sufficient, if not then prove by other evidence
   
6. 
   Examination on Making of the Statement: maybe don’t cross-ex if voluntarily given
   
7. 
   Ruling: Where inconsistency exists, evidence will be admitted at discretion of judge
   

R v. Figliola ONCA

• 
  Friend of accused and victim of homicide, called by Crown, adverse; cross-ex at large by Crown
  
• 
  Effect was to “shred” her credibility and create a “factual matrix”: jury might well conclude witness was “not only a liar” but “a witness lying for the very purpose of covering up for” the accused’s “wrongful deeds” and that the accused “were therefore liars themselves, and guilty too”
  
• 
  S.9 created injustice by over-use
  
• 
  Held: error to permit cross-ex at large, and error not to give strong warning to jury that lack of any evidence of collusion between witness and accused meant jury couldn’t draw any adverse inference that accused was liar
  

2. Corroboration

• 
  Two meanings:
  
  • 
    Common sense witness’ evidence easier to accept other admissible evidence supports it – no special rules
    
  • 
    Highly technical doctrine that once loomed large in evidence law – virtually eliminated by statute and CL
    
• 
  Situations were Corroboration Necessary to Convict:
  
  • 
    Treason
    
  • 
    Perjury
    
  • 
    Feigned marriages
    
• 
  Vetrovec Warning to Jury: Testimony of unsavoury witness potentially unreliable, such as an accomplice or witness with record for perjury, dangerous to convict on that alone
  

• 
  Corroboration: Independent testimony connecting/tending to connect to crime
  

• 
  Used to be technical rules reflecting scepticism about evidence of certain classes of witnesses (sexual assault complainants, children, disabled people, accomplices)
  

• 
  Evidence needed independent weight pointing to guilt of accused, not looking at whether this witness was credible because basically assumed they’re not Baskerville
  

R. v. Baskerville 1916 – not law anymore

• 
  B convicted of offences involving 2 boys appealed because of no corroborating evidence
  
• 
  Evidence of accomplice is admissible in law, but rule for judge to warn jury of danger of convicting on uncorroborated testimony of an accomplice and, in discretion of judge, to advise them not to convict on such evidence, though it is within their ability to do
  
• 
  Corroboration need not be direct evidence that accused committed crime, can be circumstantial
  

The Vetrovec Warning (Khela)

1. 
   Draw attention of jury to evidence that requires special scrutiny
   
2. 
   Explain exactly why evidence is subject to special scrutiny (why to be suspicious of jailhouse informants)
   
3. 
   Why it is dangerous to convict on basis of this kind of evidence, but jury may do so if they find reliable/true
   
4. 
   In determining veracity of witness, jury ought to look to other evidence (not tainted by that witness) to confirm that the suspect evidence is reliable, use common sense, Unsavoury witnesses generally
   

• 
  Looking at the witness’s credibility; may not implicate guilt of accused but can give support to story
  
• 
  Purposes: 1) alert jury to danger of relying on unsupported evidence of unsavoury witnesses and to explain reasons for such special scrutiny; 2) in appropriate cases, give jury the tools necessary to identify evidence capable of enhancing trustworthiness of those witnesses
  

Vetrovec v. The Queen; Gaja v. The Queen 1982

• 
  V & G charged with conspiracy to traffic heroin, L accomplice testified for crown; Following Baskerville, judge instructed jury it’s dangerous to convict on accomplice’s uncorroborated testimony; Appealed instruction
  
• 
  Evidence relating to L’s trip to Hong Kong to traffic it tends to connect appellants with drug trafficking generally, CA and SCC say not too remote, it was corroborative and connects to committing crime charged, testimony need not relate directly to the “overt act” described by accomplice
  

• 
  Current law too wide: applies to accomplices who are trustworthy;
  
• 
  Current law too narrow: applies only to participants in exactly same crime as charged against accused
  

• 
  With accomplices or a disreputable witness of demonstrated moral lack (record for perjury), jury warning needed
  
• 
  Warning highlights, repeats prejudicial evidence but something unsavoury about rewarding self-confessed knave
  
• 
  Reason: guilty person can purchase impunity by falsely accusing others, may protect his friends; but isn’t always true and anachronistic and impossible to determine credibility at outset, friendship doesn’t induce crime, and sometimes immunity not offered, can’t predict people will minimize own fault, or moral guilt (Wigmore)
  

R v. Khela 2009 SCC

• 
  Dangerous to rest conviction on single witness testimony/single evidence, but it is sufficient for most (3 exceptions), wrongful conviction more possible; don’t disregard, scrutinize it
  
• 
  Unsavoury Witnesses: amoral character, criminal lifestyle, past dishonesty, interest in outcome, favour personal advantage over public duty, suggests they can’t be trusted even under oath
  
• 
  In case as whole, items of confirmatory evidence should restore faith in relevant aspects of witness’s account
  
• 
  Vetrovec instruction so jurors appreciate need for scepticism:
  

• 
  No magic words, but clear and sharp warning, plainly emphasize dangers of reliance
  
• 
  TJs not pigeonholing witnesses as accomplices but consider all facts that could impair credibility
  
• 
  No technical definition of corroboration; does evidence properly weighed overcome its suspicious roots
  

1. 
   Judge determine if there’s reason to suspect credibility of witness re: traditional ways ex. Lifestyle
   
2. 
   Judge assess importance of witness to Crown’s case, warning is mandatory if witness is central in proving guilt
   

3. Accused as Witness (see above)

• 
  Prior consistent statements and recent fabrication
  
• 
  Cross-ex of accused on motives of witnesses
  

• 
  Asking accused about veracity of Crown witness improper; Accused’s opinion is irrelevant and could prejudice her, render it unfair; prejudice by shifting burden of proof from Crown to accused Ellard
  

• 
  Evidence of character and discreditable conduct
  
• 
  Criminal record of accused
  
• 
  Comments upon failure to testify
  
• 
  Comments on accused’s silence
  
• 
  Voluntariness of statements to police
  
• 
  Use of prior testimony of accused
  

R v. Ellard 2003 BCCA

• 
  Second degree murder, victim beaten twice and drowned in Gorge by Ellard and man; several young people testified appellant admitted to participating in fatal assault; said was there for first not second, denied admissions
  
• 
  Credibility issue led Crown persistently 18x asked why Crown witness would lie about admissions
  

• 
  “You can offer no explanation why they’re saying these things”? “I could but it’s not my place to give an explanation because I don’t know what they’re thinking and why. So I don’t know”. “Do you have any credible explanation you can give this jury?”
  

• 
  Asking accused about veracity of Crown witness is improper; accused’s opinion irrelevant, could prejudice her
  
• 
  TJ gave instruction to neutralize damage by that cross-ex but that wasn’t enough, unfair trial
  
• 
  Prejudice: this tends to shift burden of proof onto Accused, could induce jury to reason if accused can’t say why witness would give false evidence then witness may be true,
  

• 
  Undermines presumption of innocence and reasonable doubt; trier of fact must be fixed on whether Crown proved its case and not diverted on accused providing motive for witness to lie
  

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