Credibility of Complainants or Victims

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 95238)

General Principles

See also: Analyzing Testimony

A judge in his decision evaluating the credibility of a complainant must consider the evidence in its whole context and address any internal contradictions. He cannot ignore evidence that goes against the conclusion.[1]

The fact that the complainant "pursues a complaint" cannot be used to support credibility without having the effect of reversing the onus of proof.[2]

Evidence of the overall relationship with a domestic partner may be knitted "to establish the true and complete nature of the couple's relationship in so far as it is reasonably capable of setting forth the contextual narrative in the course of which the events or said to of occurred" or where it can establish motive or animus of the accused or where it where it is relevant to explain failure to report.The judge must weigh the probative value against the prejudicial effect.[3]

Prior consistent statements can be useful to be admitted for narrative. They may be a central "to understanding the unfolding of events, for example, eliminating gaps or explaining why so little was done to terminate the abuse or to bring the alleged perpetrator to justice". It may also supposed to "understand how and when I complain its story came to be disclosed."[4]

Post Offence Demeanour

There is no hard and fast rule about how a victim will react after a traumatic event such as a sexual assault.[5]

Delayed or Recent Complaint

The relevancy of a delayed complaint is "contextual and will vary from case to case."[6]

In the context of a sexual assault offence, a delay in disclosure, by itself, will not permit an adverse inference on the witnesses credibility.[7]

Inability to Explain Reason for Fabrication

It is well established that Crown cannot ask an accused why a complainant would lie and then use the failure to respond as reason to infer guilt.

There is some suggestion that this prohibition would apply more generally where the lack of evidence showing a reason to lie is used to infer guilt.[8]

Lack of Motive to Lie

The lack of any motive to lie may be relevant to assessing credibility, particularly in cases where the accused alleges fabrication and motive.[9] When considering the absence of motive to lie or evidence disproving a motive to lie, the trial judge should consider two associated risks:[10]

  1. "the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and"
  2. "the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations".
  1. ↑ R v G(W), 1999 CanLII 3125 (ON CA), 137 CCC (3d) 53, per Finlayson JA at 13, 14, 17-19
    R v DA, 2012 ONCA 200 (CanLII), 289 OAC 242, per MacPherson JA
  2. ↑ R v MQ, 2010 ONSC 61 (CanLII), OJ No 378, per Hill J
  3. ↑ MQ, ibid.
    R v F(JE), 1993 CanLII 3384 (ON CA) (working hyperlinks pending) at 472 (CCC)
    R v Curto, 2008 ONCA 161 (CanLII), 230 CCC (3d) 145, per Rosenberg JA, at para 33
  4. ↑ MQ, ibid.
    see also Prior Consistent Statements
  5. ↑ R v DD, 2000 SCC 43 (CanLII), [2000] 2 SCR 275, per Major J, at para 65 ("A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are victims of trauma like a sexual assault will behave. ... In assessing the credibility of a complainant, the timing of the complaint is simply one of circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. ")
    R v JA, 2010 ONCA 491 (CanLII), 261 CCC (3d) 125, per MacPherson JA, at para 17
  6. ↑ MQ, ibid.
  7. ↑ DD, supra ("Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complaint.")
  8. ↑ R v VY, 2010 ONCA 544 (CanLII), 258 CCC (3d) 281, per LaForme JA, at paras 25 to 26
    R v MP, 2010 ONSC 5653 (CanLII), per Hill J, at para 323
    (“ A trier of fact cannot conclude guilt by accepting the complainant as a credible witness and then considering that the accused has put forward no credible explanation for the allegations”)
  9. ↑ R v Gerrard, 2022 SCC 13 (CanLII) (working hyperlinks pending), per Moldaver J ("“Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common sense factor that suggests a witness may be more truthful because they do not have a reason to lie... Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence ")
    R v Stirling, 2008 SCC 10 (CanLII) (working hyperlinks pending), per Bastarache J, at paras 10 to 11
    R v Ignacio, 2021 ONCA 69, 400 CCC (3d) 343, per Pepall JA, at paras 38 and 52
    cf. R v Bartholomew, 2019 ONCA 377 (CanLII), 375 CCC (3d) 534, per Trotter JA
    cf. R v MS, 2019 ONCA 869 (CanLII), [2019] OJ No 5633, per curiam
    cf. R v BH, 2022 ONCA 812 (CanLII (working hyperlinks pending), per curiam
  10. ↑ Gerrard, supra
    R v Swain, 2021 BCCA 207 (CanLII), 406 CCC (3d) 39, per Voith JA, at paras 31 to 33
Lack of Embellishment or Exaggeration

The lack of embellishment or exaggeration may be a relevant factor in considering the credibility. It is primarily used to rebut suggestions of fabrication and motive to fabricate. It cannot be used bolster credibility.[1]

It also follows that the presence of embellishment is a factor weighing against the credibility of the complainant.

  1. ↑ Gerrard, supra ("Lack of embellishment may also be relevant in assessing a complainant’s credibility ... lack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie.")

Credibility in Sexual Assault-related Offences

It is a legal error for a judge to rely on "pre-conceived views about how sexual victims would behave."[1]

The law seeks to eradicate the "myths" of "appropriate behaviour" in sexual assaults.[2]

These rules against myths, however, cannot be used to bolster credibility artificially.[3]

Timeliness of Complaint

The doctrine of recent complaints in sexual assault cases does not exist in Canada. A failure to make a timely complaint in a sexual assault or abuse cannot be used to make an adverse inference of credibility.[4]

275. The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation], 153.1 [sexual exploitation of disabled], 155 [incest] and 159 [anal intercourse], subsections 160(2) [compelling bestiality] and (3) [bestiality in presence of or by child] and sections 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 172 [corrupting children], 173 [Indecent acts], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] and 273 [aggravated sexual assault].
R.S., 1985, c. C-46, s. 275; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002, c. 13, s. 12.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 275

Those offences listed in s. 275 consist of:

Late disclosure, by itself, cannot allow an adverse inference against the complainant in a sexual assault case.[5]

However, the court may use evidence of the making of the complaint as "narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility.”[6] These statements cannot be used in “confirming the truthfulness of the sworn allegations”.[7]

Behaviour of Victim

In sexual assault cases, it has been stated that a strict analysis of the reasonableness of the complainant's actions as "reactive human behaviour is variable and unpredictable" and there is the risk of "stereotypical thinking as to how a female complainant should react in a given scenario."[8]

There is no "no inviolable rule on how people who are the victims of trauma like sexual assault will behave."[9]

Post-Offence Demeanour and Conduct in Sexual Offences

Post-event demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant's version of events.[10] This can include evidence such as:

  • complainant’s willingness to undergo the invasive sexual assault examination;[11]
  • complainant’s demeanour immediately after the assault[12]

The observed "lack of avoidant behaviour or lack of change in behaviour [after the offence is alleged to have occurred], must never be used to draw an adverse inference about a complainant's credibility."[13]

  1. ↑ R v Cepic, 2019 ONCA 541 (CanLII), 376 CCC (3d) 286, per Benotto J, at paras 14 to 15
    R v DD, 2000 SCC 43 (CanLII), [2000] 2 SCR 275, per Major J, at para 65
    R v ARJD, 2018 SCC 6 (CanLII), [2018] 1 SCR 218, per Wagner CJ, at para 2
  2. ↑ Cepic, supra, at para 14
  3. ↑ Cepic, supra, at para 14
    R v JL, 2018 ONCA 756 (CanLII), 367 CCC (3d) 249, per Pepall JA, at paras 46 to 47
  4. ↑ R v DD, 2000 SCC 43 (CanLII), [2000] 2 SCR 275, per Major J
  5. ↑ DD, supra, at paras 63, 65
  6. ↑ R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, at para 37
  7. ↑ Dinardo, ibid., at para 37
    see R v GC, [2006] OJ No 2245 (CA)(*no CanLII links)
    R v Fair, 1993 CanLII 3384 (ON CA), OR (3d) 1, at para 21
  8. ↑ R v Lally, 2012 ONCJ 397 (CanLII), per Keast J at 105 to 113
  9. ↑ DD, supra, at para 65
  10. ↑ R v JJA, 2011 SCC 17 (CanLII), [2011] 1 SCR 628, per Charron J, at paras 40 to 41
    R v Mugabo, 2017 ONCA 323 (CanLII), 348 CCC (3d) 265, per Gillese JA, at para 25 ("It has long been held that post-event demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant’s version of events")
  11. ↑ Mugabo, ibid., at para 25
  12. ↑ Mugabo, ibid., at para 25
  13. ↑ R v ARD, 2017 ABCA 237 (CanLII), 353 CCC (3d) 1, per Slatter JA, at para 64

See Also

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