EVIDENCE IN HISTORICAL SEXUAL ASSAULT CASE
It is wrong for a trial judge to expect perfect recollection and consistency from a plaintiff abused as a child. It is an obvious challenge for any trial judge to assess credibility and reliability when and adult is giving testimony over sexual assault events that occurred during their youth, it is an error in principle however for a trial judge to take the position that this challenge makes it impossible to make a decision. The correct approach would be more along the following lines:
“In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.”
The appellate court pointed out that from a practical point of view, it is entirely acceptable for an adult to preface answers with “sometimes”, “I believe”, and “as I recall” when discussing events that happened in their childhood. The trial judge’s concern over this was unfounded. The appellate court also considered the trial judge’s views on lack of detail was in error. First, the appellate court considered it wrong to put a lot of concern over detail given the time frames involved, but even if a lack of detail was a viable concern, the appellate court didn’t feel the detail provided by the plaintiffs was overtly lacking in detail.
Paddy-Cannon v. Canada (Attorney General), 2022 ONCA 110
https://www.canlii.org/en/on/onca/doc/2022/2022onca110/2022onca110.html