Credibility of Complainants or Victims: Difference between revisions

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; Behaviour of Victim
; Behaviour of Victim

Revision as of 21:18, 23 March 2021

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 understand the unfolding events, for example, eliminating gaps or explaining why soda 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]

  1. ↑ R v G(W), 1999 CanLII 3125 (ONCA), ,, per Finlayson JA at 13, 14, 17-19
    R v DA, 2012 ONCA 200 (CanLII), per MacPherson JA
  2. ↑ R v MQ, 2010 ONSC 61 (CanLII), per Hill J
  3. ↑ MQ, ibid.
  4. ↑ MQ, ibid.
    see also Prior Consistent Statements
  5. ↑ R v DD, 2000 SCC 43 (CanLII), 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), 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”)

Credibility in Sexual Assault-related Offences

Timeliness of Complaint

The doctrine of recent complaint 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.[1]

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

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.[2]

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.”[3] These statements cannot be used in “confirming the truthfulness of the sworn allegations”.[4]

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".[5]

There is no "no inviolable rule on how people who are the victims of trauma like sexual assault will behave".[6]

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.[7] This can include evidence such as:

  • complainant’s willingness to undergo the invasive sexual assault examination;[8]
  • complainant’s demeanour immediately after the assault[9]

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."[10]

  1. ↑ R v DD, 2000 SCC 43 (CanLII), per Major J
  2. ↑ DD, supra, at paras 63, 65
  3. ↑ R v Dinardo, 2008 SCC 24 (CanLII), at para 37
  4. ↑ Dinardo, ibid., at para 37
    see R v GC, [2006] OJ No 2245 (CA)(*no CanLII links)
    R v Fair, 1993 CanLII 3384 (ONCA), O.R. (3d) 1 (CA), at para 21
  5. ↑ R v Lally, 2012 ONCJ 397 (CanLII), per Keast J at 105 to 113
  6. ↑ DD, supra, at para 65
  7. ↑ R v JJA, 2011 SCC 17 (CanLII), per Charron J, at paras 40 to 41
    R v Mugabo, 2017 ONCA 323 (CanLII), 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")
  8. ↑ Mugabo, ibid., at para 25
  9. ↑ Mugabo, ibid., at para 25
  10. ↑ R v ARD, 2017 ABCA 237 (CanLII), per Slatter JA, at para 64
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