Assess witness by age at testimony on events that occurred during childhood: Ontario Court of Appeal

The trial judge made a serious error when he evaluated a complainant’s credibility as if she were a young child and not 18 years old – her age when she testified about events that took place when she was a child, the Ontario Court of Appeal has ruled.

The appellant was charged with sexual assault and sexual interference against the daughter of a woman with whom he had an intimate relationship at the time. The complainant was between five and 11 years old during the alleged events and was 18 years old when she testified at trial.

The appellant denied the complainant’s allegations and said that he was never left alone with her, a claim which her mother supported.

In April 2018, Justice Alan Whitten of the Ontario Superior Court of Justice convicted the appellant of sexual interference and stayed the overlapping sexual assault charge to avoid double jeopardy. He described the complainant’s evidence as having “the quality of a child bearing witness to a progressive sexual abuse.”

The trial judge found it compelling that there were “plenty of childlike details such as taste, the sound of photographs; [sic] the sound of the zipper, the yellow couch, and the concrete floor and the puddles of semen on the floor.” He concluded that there was no reasonable doubt regarding the facts to which the complainant attested.

The appellant appealed the sexual interference conviction and the accompanying finding that he was guilty of sexual assault.

Witness shouldn’t be treated as child

In R. v. D.D., 2022 ONCA 786, the Court of Appeal allowed the appeal solely on the ground that the trial judge erroneously assessed the complainant’s credibility as if she were a child at the time that she testified. This error was serious and central to the judge’s decision to accept the complainant’s testimony, the appellate court said.

The case of R. v. W. (R.), [1992] 2 SCR 122 provided that courts should approach children’s evidence on a common-sense basis and should bear in mind their mental development, understanding, and ability to communicate.

While these considerations would remain relevant if adults were testifying about events that allegedly occurred when they were children, courts should generally assess their credibility according to criteria applicable to them as adult witnesses, as stated in R. v. W. (R.). Here, the trial judge correctly cited but misapplied this principle, the appellate court held.

The Court of Appeal acknowledged that the judge was entitled to find that the details that the adult witness provided about her childhood experience were the kinds of things that a child would remember or that made her account plausible or coherent. However, the judge should not infer that these details, when provided by the adult witness, should be true because a child would not have the intelligence or experience to concoct such details, the appellate court said.

It was appropriate for the judge to rely on the witness’s immaturity at the time of the alleged events to put into perspective any flaws in her evidence, the Court of Appeal accepted. However, the judge went beyond this when he evaluated the adult complainant’s credibility as if she were a child at the time of her testimony, the appellate court said.

Given this finding, the appellate court deemed it unnecessary to address the appellant’s remaining grounds of appeal.