Before court, sexual assault is thought of as a “he said, she said,” in the sense that it rests on the testimonies of the complainant and the accused. When the complainant’s version and the accused’s version of the event are starkly different, the main issues may be credibility and reliability in a finding of guilt or innocence.
It is important to distinguish between credibility and reliability. Credibility relates to sincerity or truthfulness, while reliability relates to the accuracy of their account of the evidence. A witness may be credible, but not reliable. For example, someone who has convinced themselves that an inaccurate version of the event is correct and they are persuasive in their demeanor about what they believe is true would demonstrate credibility. However persuasive, their account of the event may show many divergences from the evidence reflecting what actually happened and therefore would not be reliable.
Potential Considerations for Credibility
Assessing credibility is not a science (R v Dinardo). Although there are certain factors that may support or detract from credibility, as discussed below, credibility of witness must be assessed in view of the overall context of the evidence presented in trial. The following considerations are not exhaustive.
Time of Report
Notably, not making a timely complaint in a sexual assault or abuse case cannot be used to undermine your credibility (R v D.D, 2000, SCC).
Courts in Canada have determined that past sexual history, such as consenting in a previous instance, does not impact the question of consent or credibility of the complainant. (Darrach). Therefore, even if you engaged in similar sexual activity before with that very person, it is irrelevant to a finding of whether you consented on this particular occasion. Consent before is not equal to consent now.
“Predictable” Human Behaviour Responses
In Ontario, courts have acknowledged that behaviour to situations of stress, fear, shock or crisis are highly unpredictable. Beliefs and view of ‘you could have done this’ or ‘you should have done that’ are attempts to classify people based on predictability, certainty, and logic.
Potential Considerations for Credibility
|Supports Credibility||Detracts from Credibility|
|Based on the judge’s perception of the witness’ demeanor and judge’s belief that the witness had little reason or no motive to fabricate the truth R v MCJ||Confusing, incomplete, disconnected, and contradictory evidence Lally|
|Demeanor of being “thoughtful, careful, and measured in answering questions from Crown counsel and defence counsel” Lally||Testimony that is inconsistent or wavers on material, central, or major issues R v Dinardo|
Potential Considerations for Reliability
|Supports Reliability||Detracts from Reliability|
|Evidence that is internally congruent and externally congruent to the evidence of other witnesses at trial Lally||Inconsistencies with one witness’ evidence and another witness’ evidence R v MCJ|
|Corroboration between the complainant’s version account of events and evidence Lally||Unable to recall specific times, places, sequences, and frequency of events R v MCJ|
|Inconsistencies between details to the police in an initial interview, those told during examination in chief, and testified during cross-examination R v MCJ|
Keeping an accurate and detailed written log or diary of the incidents can help prove a claim of sexual harassment or assault. It is best to record the evidence as soon as you believe you experienced the wrongful conduct, while your recollection is still fresh and accurate. Showing a detailed timeline or evolution with dates and times, starting from one or two incidents is important, even if you have no intention of bringing a claim.
At Vesta, we are dedicated to support you in maintaining a detailed record of your sexual harassment and/or assault.
Written by: Jenna Kara
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