Eyewitness identification of the person who allegedly committed a crime, as well as the circumstances involved in the offence, can directly tie the accused to the crime and are typically a significant aspect of the prosecution’s evidence. Historically, eyewitness testimony has sometimes led to mistaken identifications and tragically, to wrongful convictions, even when the eye witness or the complainant in a sexual assault case sincerely believes that what they are saying is honest and factual. Today, Canadian Courts are aware of the shortcomings of eyewitness accounts, and judges and juries are expected to evaluate the whole of an eyewitness’ evidence (including a complainant’s testimony) to determine whether their description of the offence is factual.
R. v. Q.B. (2018) is a sexual assault trial involving a woman who filed charges against a close friend of her boyfriend who, she alleged, raped her on two occasions in her Brampton apartment. The defendant chose to exercise his right not to testify in the trial, so the case rested on the reliability and credibility of the complainant’s testimony, as well as evidence given by hospital staff and police officers who spoke with the complainant after each of the two alleged incidents.
The judge in this case referred to R. v. H.P.S. (2012), where the Court defined the difference between reliability and credibility as follows: “Credibility has to do with the honesty or veracity of a witness’ testimony. Reliability has to do with the accuracy of a witness’ testimony”. In sexual assault cases, a judge must assess the complainant’s credibility and reliability with the same degree of scrutiny as they apply to eyewitness accounts in any other criminal case (and just as they would evaluate the defendant’s testimony), in order to determine whether the Crown has proven the defendant’s guilt beyond a reasonable doubt.
In Q.B., the key questions Justice André stated he must assess with respect to the complainant’s credibility are:
- Is her testimony internally consistent?
- Does it have an air of reality?
- Are there any inconsistencies with her prior statements and if so, are the inconsistencies minor or significant?
- Does her evidence conflict with that of other witnesses?
With regards to these questions, the judge had several concerns about the reliability of the complainant’s evidence. One of the inconsistencies Justice André noted in the complainant’s testimony is that the complainant said she told the nurse at the hospital, after the first alleged rape, that she had suffered injuries as a result of the assault; but the nurse gave evidence that she found no injuries on the complainant’s body. Another inconsistency is that the complainant told police she let the defendant into her apartment on the date of the second alleged rape because she was too short to see out of the peep hole of her apartment, but the investigating officers gave evidence that, at 5’3” she could easily have seen out of the peep hole and recognized the defendant. Further, the complainant signed a waiver after the first alleged assault stating that she did not want to charge the defendant, and she testified that she didn’t know what she was signing; however, the two officers both testified that they went over every word of the document with her.
Justice André concluded that, given the inconsistencies in the complainant’s testimonies, the Crown had not proven their case beyond reasonable doubt, so the defendant must be acquitted.
R. v. W.O. (2020) is another sexual assault case where inconsistencies in the complainant’s evidence needed to be resolved and may have raised reasonable doubt, as determined on Appeal. In W.O., a man was found guilty of sexual assault, sexual interference and incest against his daughter, who was 17 years old when she testified in the original trial. The man appealed the outcome and the Ontario Court of Appeal overturned the conviction and ordered a new trial on a finding that “the trial judge failed to properly address the inconsistencies in the complainant’s evidence and did not consider the context in which the allegations were made”. Further, the trial judge did not properly explain how he resolved the issues of the complainant’s credibility and why he decided that the case was proven beyond a reasonable doubt. In the Appeal, Justice Nordheimer stressed that a convicted person, particularly a parent who is accused sexually abusing their child, deserves to have the reasons for their conviction explained, which requires a judge to directly address inconsistencies in the complainant’s testimony.
If you have been charged with a sexual offence, talk to a Toronto sex crimes lawyer at the Law Firm of Ted Yoannou to ensure you are defended to the full extent of the law. Our experienced legal team will fight strongly on your behalf to prevent or overturn a life-changing criminal conviction.