Important decision today from the ABCA overturning a conviction for sexual assault in R. v. Bernier 2021 ABCA 27 on relying on accused’s theorizing regarding a complainant’s motive to misrepresent /1

The court reinforced that more is required, in order to properly rely on this generally inadmissible evidence, than accused claiming that the complainant provided an unreliable account /2

Questioning, even in a police interrogation of the accused which is tendered substantively, which wrongly suggests that a complainant who is not deliberately lying must be telling the truth, cannot be relied upon to convict /3

Curative proviso inapplicable where questioning highly prejudicial and found by trial judge to “cast a shadow of implausibility over the totality of what he said.” /4

ABCA notes this to be a “paradigmatic case for why the rule continues, over the decades, to have such force.” /5

Also, refreshing to see 686 not be applied to a significant error. /6