Judge doubts the Reliability of Complainants’ Testimony in Sexual Assault Case

Many sexual assault cases rest on the testimony evidence of the complainant and the accused person.  The complainant’s testimony is often the Crown’s only evidence of the criminal action that is being alleged.  And, because the onus is on the Crown to prove the guilt of the accused person beyond a reasonable doubt, it is the complainant’s credibility and reliability that generally play the greatest role in a finding of ‘guilt’ or ‘innocence’.  

A recent Ontario trial, R. v. M.C.J., involved a man charged with six sex assault offences involving three complainants who were members of his extended family. This is an unusual case as the Crown requested that each of the complainant’s allegations were to be assessed in isolation, without corroboration with one another. Also unusual is the fact that it is a re-trial, following a successful appeal of an earlier decision. 

With limited exceptions, the judge in this case was not provided any of the content of the original trial or appeal; however, the judge became apprised of some of the earlier evidence when the complainants were cross-examined with respect to inconsistencies between their current testimony and previous testimony.  The evidence of Constable Boateng from the previous trial was also provided in the form of a transcript.

The accused was charged with: sexual assault and sexual interference against LJ between Dec 5, 1987 and Dec 5, 1992; two counts of sexual assault against LH, one of which was between Mar 1 and Aug 31, 1998 and the second on Jun 23, 2005; and sexual assault and sexual interference against KJ between Jun 15 and Sept 10, 2007.  LJ and LH are nieces of the accused, and KJ is LH’s daughter.  It was noted that, as a matter of law, a complaint against a family member is not necessarily more or less credible than any other.

Trial arguments and reasoning

Justice Harris agreed with the Crown’s argument that this case is about the reliability of the evidence of the three complainants. However, it is important to distinguish between credibility and reliability — credibility relates to a witness’s sincerity or truthfulness, while reliability relates to the accuracy of their evidence. A witness may be credible but not reliable.  As noted in R. v. Stewart, people sometimes convince themselves that inaccurate versions of a particular event are correct and they can be very persuasive about what they believe to be true, which requires that demeanour alone is not sufficient for a conviction when there are significant inconsistencies and conflicting evidence. An assessment of the credibility of a witness requires the court to examine inconsistencies between what they testified in the trial and said on previous occasions, as well as with respect to what was said by other witnesses.

It should also be noted that when an adult gives evidence about events that occurred when they were a child, their credibility should be assessed based on criteria applicable to adults; however, since children see the world differently than adults and remember different information than adults, inconsistencies on peripheral details, such as time and place, should be judged in the context of their age when the event took place.

LJ’s testimony

LJ was the older of the complainants who were MCJ’s two nieces. LJ testified that, after her parents separated, the accused sexually assaulted her on multiple occasions when she was visiting her father at her grandparents’ home and when MCJ was living there.  The assaults were alleged to have taken place over a five-year period. LJ alleged that the first incident of physical contact occurred in MCJ’s bedroom when she was 11 years of age, and the last incident was when MCJ tried to kiss her on her 16th birthday.  LJ testified that she did not say ‘no’ to these events and didn’t know why she allowed them to happen.

Based on LJ’s demeanour and his belief that she had little reason to fabricate the truth, Justice Harris concluded that LJ was a credible witness and believed everything she was saying. In fact, he stated “I have never seen a more reluctant witness” — she did not want to reveal what happened between her and the accused, and appeared to blame herself for what she believed happened to KJ.

On the other hand, Justice Harris did not find LJ’s evidence to be sufficiently reliable.  LJ’s age when the various events occurred was a fundamental issue in this case. During the years of the alleged offences, the legal age of consent (for a sexual assault charge) was 14 years-of-age, and for sexual interference, a complainant would have to have been less than 14-years-of age.  If the events occurred before LJ turned 14, she was not legally able to give her consent, and if they occurred after the age of 14, the Crown must prove a lack of consent beyond a reasonable doubt.

The Crown argued that the first incident occurred when LJ was 11 and also argued that LJ’s testimony that she did not know what she was doing when MCJ kissed her indicates that she was likely younger than 14.  However, the judge was not prepared to assume LJ knew how to kiss or perform oral sex at the age of 14 (which LJ alleged to have happened), so these events could have occurred later.  Also, the fact that she was still sometimes visiting and spending time at her grandparents’ home up to the age of 16 and often spent time alone with MCJ when she visited, means that the reported incidents could have occurred after she turned 14.  Finally, LJ’s sister testified that LJ seemed happy to spend time with MCJ during these visits, and LH never noticed anything wrong with LJ. 

On the whole, Justice Harris did not find that LJ gave a reliable or accurate account of the details of the key events to which she testified, including the alleged incident of oral sex in MCJ’s car.  She did not have a good memory of what she was doing from age 14 to 16, and could not remember specific times, places, sequencing and frequency of events. There were also several inconsistencies between her evidence and the testimony given by both KJ and LH, leading Justice Harris to believe that the evidence of at least one of the complainants was incorrect with respect to each of the incidents, but the judge could not be certain whose evidence was incorrect.

There were also significant inconsistencies in what LJ testified in court and what was said on previous occasions. One of the most troubling inconsistencies involved a serious allegation, where LJ told police in her first interview, that when she was 11, MCJ was teaching her to play guitar in his room and warned her to never let a boy insert his fingers into her vagina; and when asked by the officer whether anything physical happened, she replied that she only remembered his words and not his actions.  However, just prior to her testimony at the first trial, she reported that MCJ did touch her inappropriately in this way.  This, and other serious inconsistencies, lead Justice Harris to doubt the reliability of LJ’s evidence and as a result, he found that the Crown has not proven beyond a reasonable doubt that MCJ did anything on the occasion of the alleged guitar incident that constitutes sexual assault or sexual interference.

KJ’s evidence

KJ was LH’s daughter and LJ’s niece, and she had a close relationship with her aunt LJ. It was KJ’s disclosure in 2009 of MCJ’s alleged sexual assaults that caused LJ and LJ to report to police on what allegedly happened to them.  KJ testified that there was an occasion when she and other family members were visiting the family cottage, when MCJ rubbed against her and placed her hand on his penis and asked her to squeeze it, while they were both on a sea-doo ride.  The incident was brief and she did not tell MCJ to stop, but states that she told another cousin about the incident but the latter did not believe that MCJ could have done something like that.  Some time later, KJ allegedly told a close friend and the friend’s mother about the incident, but asked them to keep it a secret.

In assessing KJ’s reliability and credibility, Justice Harris believed KJ had no known motive to fabricate her initial allegations, however, she did show definite animus towards MCJ as time went on, that he felt could slant her subsequent recovered recollections.  In the first trial, KJ was a child reflecting on what happened as a younger child, but in the current trial, KJ was almost an adult and the judge felt it was appropriate to assess her credibility which a lesser standard associated with child witnesses.  

Justice Harris was less certain about KJ’s credibility than he was for LJ, but still found her to be a credible witness. However, like LJ, he did not find KJ’s evidence to be reliable anywhere near what is required to substantiate the events that were alleged. The judge believed there were “many, many inconsistencies in her evidence”, including inconsistencies in details told to police in her initial interview, those told during examination-in-chief and what she testified during cross-examination.  Like LJ’s evidence, there were a number of inconsistences between KJ’s evidence and that of the other complainants.  The judge was also troubled by the fact that KJ’s allegations continued to evolve to become increasingly incriminating. 

The judge’s conclusion that KJ’s evidence reflected a lack of reliability was based on the combined effect of all the inconsistencies. Justice Harris also noted that it was unlikely that the incident on the sea-doo occurred as reported, as it would be difficult for MCJ to effectively drive the sea-doo while engaged in the alleged actions and it was just as likely that he was simply bumping against KJ as the sea-doo bounced on the waves.  If the incident occurred as described in the latter scenerio, MCJ did not commit either sexual interference or sexual assault. Justice Harris concluded that the Crown has not proven guilt beyond reasonable doubt for the charges relating to KJ.

LH’s evidence

LH is LJ’s younger sister and KJ’s mother, and LH gave birth to KJ at the age of 15.  Although she saw MCJ frequently, there were fewer occasions when she was alone with him.   LH alleged a number of incidents of inappropriate touching or being watched by MCJ.  She testified that she was assertive in telling MCJ to go away when others were around and sometimes when they were alone.  LH stated that she told her sister LJ than MCJ was ‘doing things’ but did not provide any details.

In assessing LH’s reliability and credibility, Justice Harris concluded that LH felt animus towards MCJ even before her daughter disclosed her allegations against him.  Considering her prior feelings, together with her reaction when KJ shared her allegations, the judge believed that LH may have had a motive to contrive allegations against MCJ.  Justice Harris also found LH’s evidence to be unreliable, and “replete with inconsistencies and implausibilities”.  LH and her daughter rented an apartment in the home of MCJ and his wife for some time, and although LH stated that MCJ made her uncomfortable and sometimes came down to her room uninvited to watch her, she apparently never said anything to MCJ or his wife and did not try to prevent it by locking her door.  The details of LH’s allegations also varied when told on different occasions and were inconsistent on a number of significant details, with what had been alleged by the other two complainants. In consideration of all the above, Justice Harris had reasonable doubt that any of the events described by LH occurred.

All of the charges against the accused relating to the three complainants were dismissed.

If you have been charged with a sexual assault offence, seek immediate legal representation from the Criminal Law Firm of Ted Yoannou.  You can be assured that our experienced criminal law team will work zealously to have these serious charges against you dismissed.


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