New & Notable: Assessing Credibility

LCT was charged with sexual interference and sexual exploitation of his stepdaughter.  She was 8 or 9 when the abuse began and it continued until she was 14.  In 2002 (after the abuse had started) the complainant was interviewed by the CAS as a result of an allegation of abuse made against LCT by another family member.  She denied any abuse was or had occured.  In 2005 her allegations of abuse came out.

LCT was convicted after trial of four counts of sexual interference and one count of sexual exploittation.  He was acquitted of some counts, primarily on the basis of alibi evidence.  LCT appealed: 2012 ONCA 116.

One of the grounds of appeal was related to the trial judge's assessment of the complainant's credibility.  The Court of Appeal outlined that analysis as follows:

The trial judge concluded that L.T. was an honest witness. He accepted L.T.'s explanation for failing to disclose the abuse prior to 2005. He found that her inability to recall exact times and dates was understandable in light of the time that had elapsed before she disclosed the abuse. The trial judge rejected the appellant's submission that L.T. was trying to assist her aunt in making the allegations against him.

Despite accepting L.T.'s evidence, the trial judge acquitted the appellant on the two counts about which the alibi witness testified. The trial judge had a reasonable doubt with respect to the timing of those counts. However, in acquitting on those counts, the trial judge did not express any doubt about L.T.'s overall credibility [paras 16-17].

The court then dealt with the two specific alleged alleged errors made by LCT on the issue of credibility assessment and rejected them:

The appellant submits that the trial judge erred in concluding that L.T. was credible by improperly taking judicial notice of two facts.

I do not agree. First, the trial judge commented that the reasons L.T. gave for delays in reporting the abuse were the very reasons why young victims of parental abuse do not complain. L.T. had testified that she did not report the abuse for several years because she was concerned about the family break-up, she was ashamed and the appellant told her not to.

Before making this comment, the trial judge had quoted extensively from the Supreme Court of Canada’s decision in R. v. D.D., 2000 SCC 43 (CanLII), 2000 SCC 43, 148 C.C.C. (3d) 41. In that decision, the Supreme Court referred to the same three factors as L.T. as reasons why young people delay in reporting sexual abuse. The trial judge’s comment flowed directly from that case. Moreover, the trial judge did not use L.T.’s reasons for delay as confirmatory or supporting evidence. Rather, he concluded only that those reasons were a neutral factor explaining the delay. He was entitled to take that approach.

Second, the appellant argues that the trial judge erred when he observed that L.T.’s poor marks in school were a “classic symptom” of parental sexual abuse. The trial judge’s comment was made as an aside in the course of his discussion about why L.T. had not complained of the abuse, not as a reason for finding L.T. credible. I see no error.

Finally, the appellant argues that the trial judge attached too much weight to L.T.’s demeanour in accepting her evidence. In one instance, he said“her credibility is established by her demeanour”. While the use of the word“establish”, taken alone, may indicate an over-emphasis on demeanour, the trial judge’s reasons read as a whole disclose consideration of all the appropriate factors in his assessment of L.T.’s credibility. The trial judge set out in some detail the arguments of the defence that challenged her credibility and addressed them. He found her evidence to be straightforward and clear.

I would not give effect to this argument [paras 94-99].

DG Mack

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