Credibility of Complainants or Victims: Difference between revisions
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The fact that The complainant "pursues a complaint" cannot be used to support credibility without having the effect of reversing the onus of proof.<ref> | The fact that The complainant "pursues a complaint" cannot be used to support credibility without having the effect of reversing the onus of proof.<ref> | ||
R v MQ, [http://canlii.ca/t/27skb 2010 ONSC 61] (CanLII){{perONSC|Hill J}} | ''R v MQ'', [http://canlii.ca/t/27skb 2010 ONSC 61] (CanLII){{perONSC|Hill J}} | ||
</ref> | </ref> | ||
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'''Post Offence Demeanour'''<br> | '''Post Offence Demeanour'''<br> | ||
There is no hard and fast rule about how a victim will react after a traumatic event such as a sexual assault.<reF> | There is no hard and fast rule about how a victim will react after a traumatic event such as a sexual assault.<reF> | ||
R v DD, [http://canlii.ca/t/525r 2000 SCC 43] (CanLII), [2000] 2 SCR 275{{perSCC|Major J}} at para. 65<br> | ''R v DD'', [http://canlii.ca/t/525r 2000 SCC 43] (CanLII), [2000] 2 SCR 275{{perSCC|Major J}} at para. 65<br> | ||
R v JA, [http://canlii.ca/t/2bj83 2010 ONCA 491] (CanLII), 261 CCC (3d) 125{{perONCA|MacPherson JA}}, at para. 17<Br> | ''R v JA'', [http://canlii.ca/t/2bj83 2010 ONCA 491] (CanLII), 261 CCC (3d) 125{{perONCA|MacPherson JA}}, at para. 17<Br> | ||
</ref> | </ref> | ||
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</ref> These statements cannot be used in “confirming the truthfulness of the sworn allegations”.<ref> | </ref> These statements cannot be used in “confirming the truthfulness of the sworn allegations”.<ref> | ||
R v Dinardo, at para 37<br> | R v Dinardo, at para 37<br> | ||
see R v GC, [2006] O.J. No. 2245 (C.A.){{NOCANLII}}<br> | see ''R v GC'', [2006] O.J. No. 2245 (C.A.){{NOCANLII}}<br> | ||
R v Fair [http://canlii.ca/t/1npp3 1993 CanLII 3384] (ON CA), (1993), 16 O.R. (3d) 1 (C.A.) at para 21</ref> | R v Fair [http://canlii.ca/t/1npp3 1993 CanLII 3384] (ON CA), (1993), 16 O.R. (3d) 1 (C.A.) at para 21</ref> | ||
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'''Post-Offence Demeanour and Conduct in Sexual Offences'''<Br> | '''Post-Offence Demeanour and Conduct in Sexual Offences'''<Br> | ||
Post-event demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant's version of events.<ref> | Post-event demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant's version of events.<ref> | ||
R v JJA, [http://canlii.ca/t/fkxnn 2011 SCC 17] (CanLII), [2011] 1 S.C.R. 628{{perSCC|Charron J}}, at paras. 40-41<br> | ''R v JJA'', [http://canlii.ca/t/fkxnn 2011 SCC 17] (CanLII), [2011] 1 S.C.R. 628{{perSCC|Charron J}}, at paras. 40-41<br> | ||
R v Mugabo, [http://canlii.ca/t/h39fv 2017 ONCA 323] (CanLII){{perONCA|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")<br> | R v Mugabo, [http://canlii.ca/t/h39fv 2017 ONCA 323] (CanLII){{perONCA|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")<br> | ||
</ref> | </ref> | ||
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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."<ref> | 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."<ref> | ||
R v ARD, [http://canlii.ca/t/h4xms 2017 ABCA 237] (CanLII){{perABCA|Slatter JA}} at para 64<br> | ''R v ARD'', [http://canlii.ca/t/h4xms 2017 ABCA 237] (CanLII){{perABCA|Slatter JA}} at para 64<br> | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 13:46, 12 January 2019
- < Procedure and Practice
- < Trials
- < Weighing Oral Evidence
- < Evidence
General Principles
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]
- ↑
R v G., W., 1999 CanLII 3125 (ON CA), per Finlayson JA at 13,14, 17-19
R v D.A., 2012 ONCA 200 (CanLII), per MacPherson JA
- ↑ R v MQ, 2010 ONSC 61 (CanLII), per Hill J
- ↑ MQ, ibid.
- ↑
MQ, ibid.
see also Prior Consistent Statements - ↑
R v DD, 2000 SCC 43 (CanLII), [2000] 2 SCR 275, per Major J at para. 65
R v JA, 2010 ONCA 491 (CanLII), 261 CCC (3d) 125, per MacPherson JA, at para. 17
- ↑ MQ, ibid.
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, 152, 153, 153.1, 155 and 159, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273.
R.S., 1985, c. C-46, s. 275; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002, c. 13, s. 12.
– CCC
Those offences listed in s. 275 consist of:
- Sexual Interference (151)
- Invitation to Sexual Touching (152)
- Sexual Exploitation (153 or 153.1)
- Incest (155)
- Anal Intercourse (159)
- Bestiality (160(2) or (3))
- Parent or guardian procuring sexual activity (170)
- Householder permitting sexual activity (171)
- Corrupting Children (172)
- Indecent Acts (173)
- Sexual Assault (271)
- Sexual Assault with a Weapon (272)
- Sexual Assault Causing Bodily Harm (272)
- Aggravated Sexual Assault (273)
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]
- ↑ R v D.D., 2000 SCC 43 (CanLII), per Major J
- ↑
R v DD, supra at para 63, 65
- ↑ R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788 at para 37
- ↑
R v Dinardo, at para 37
see R v GC, [2006] O.J. No. 2245 (C.A.)(*no CanLII links)
R v Fair 1993 CanLII 3384 (ON CA), (1993), 16 O.R. (3d) 1 (C.A.) at para 21 - ↑ R v Lally, 2012 ONCJ 397 (CanLII), per Keast J at 105 to 113
- ↑
DD, supra at para 65
- ↑
R v JJA, 2011 SCC 17 (CanLII), [2011] 1 S.C.R. 628, per Charron J, at paras. 40-41
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")
- ↑ Mugabo, ibid. at para 25
- ↑ Mugabo, ibid. at para 25
- ↑
R v ARD, 2017 ABCA 237 (CanLII), per Slatter JA at para 64