Wednesday, April 3, 2013

A complainant is not more credible because of who is complained of

R. v. M.C.J., 2013 ONCA 205 holds:

[5]          In our view, the appeal turns primarily on the emphasized portion of the following extract from the trial judge's reasons. This extract appears at the outset of the trial judge's analysis of the charges involving the complainant, L.J., which were the first set of charges he analyzed:

The defence called [J.G.] as a witness, and it was her opinion that the complaints by [L.J.] and [L.H.] stemmed from their desire to seek attention. Implicit in this evidence is that the allegations are untrue.

This court had the opportunity to see first hand these two witnesses as they testified. Both had great difficulty recounting their complaints, especially [L.H.], who at times seemed to be emotionally paralyzed by the ordeal.

All three complainants had to testify about a family member, which in my view makes their allegations more credible than a complaint against a non-family member. Sexual allegations in a family context are explosive and threaten to destroy the entire fabric of the relationship. Such complaints often divide families, and that is what happened in this case. [Emphasis added.]

[6]          The appellant submits that the impugned passage reflects an improper approach to the assessment of the complainants' credibility, as it relies on the complainants' relationship to the appellant as a general factor supporting their credibility. The Crown responds that the impugned passage must be read in context. According to the Crown, when that is done, the passage reflects nothing more than an experienced trial judge commenting on the lack of motive to fabricate, rather than a statement of a general principle.

[7]          Although we agree that the passage must be read in context, we are unable to accept the Crown's submission.

[8]          We begin by noting that it was unnecessary for the trial judge to formulate a response to J.G.'s evidence, because J.G.'s bare opinion about whether any of the complainants had a motive to lie was inadmissible and therefore irrelevant to the issues before the court.

[9]          More importantly however, on its face, the impugned passage expresses the view that, because of the difficulties in family relationships that sexual allegations often create, allegations of sexual misconduct made against a family member are inherently more credible than allegations of sexual misconduct made against a non-family member.

[10]       As such, the passage establishes a starting point – or analytical framework – for assessing the credibility of the complainants' allegations premised on the notion that, because of the family context in which the allegations were made, they were more credible than similar allegations made against a non-family member would be. Such an approach is clearly improper and, standing alone, requires that we set aside the convictions and order a new trial.


[12]       However, that is not what the trial judge said. Instead, after referring to the fact that all three complainants had to testify against a family member, he stated that allegations of sexual misconduct made in that context are more credible than allegations of sexual misconduct made against a non-family member. A conviction premised on this analytical framework simply cannot be allowed to stand.

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