When assessing a witness' credibility and reliability in a historical claim, consideration must be given to a witness' age at the time of the events and to the passage of time since then.
There is no statutory limitation period in Ontario applicable to civil claims arising from or relating to sexual abuse. A victim may claim against a perpetrator or institution for historical sexual abuse.
In these historical claims, adult witnesses are often asked to recall and give evidence about sexual abuse they experienced as children. This raises the question: should the reliability and credibility of these witnesses be assessed as the adults they are now, or as the children they were when the abuse occurred?
The recent British Columbia decision in CLH v. KAG, 2022 BCSC 994 has confirmed a witness' credibility should be assessed as an adult in such circumstances. That said, a lack of memory or inconsistencies, particularly as to peripheral matters such as time and place, must be considered in the context of the witness' young age at the time of the events.
This B.C. case relies on the Supreme Court of Canada's much-cited decision in R v. RW, 1992 CanLII 56. The court in RW acknowledged children experience the world differently from adults and details important to adults, such as time and place, may be missing from children's recollections. These missing details alone are not a reason to discount the evidence given as children, or as adults looking back on historical events that happened in their youth.
While RW is a criminal case involving child sexual abuse, its adoption by the B.C. case demonstrates this credibility/reliability assessment principle is equally applicable to civil cases.
The defendant in the B.C. case was an adult at the time of trial but was found to have sexually assaulted his sister when he was aged 10 to 16. His sister was aged 6 to 12 at the time.
Though the B.C. judge had concerns about the credibility and reliability of both parties, those concerns were not based on minor inconsistencies. Rather, the parties were found to have exaggerated or changed their evidence at times to suit their interests in the case. Nonetheless, the judge ultimately believed the plaintiff and found the defendant had sexually assaulted her on multiple occasions over a period of years.
The principle in RW was recently also considered by the Court of Appeal for Ontario in a historical physical abuse case, Paddy-Cannon v. Canada, 2022 ONCA 110. The court granted the appeal and ordered a new trial. The court found the trial judge, in assessing the credibility and reliability of the witnesses' evidence, was not mindful of the context, including the age of the witnesses at the time of the events and the passage of time since then.
Courts have acknowledged the impact of a witness' age and fading memory on their ability to recall and give evidence about historical events. Increasingly, they are also coming to understand how trauma affects memory and recall.
When evaluating the strengths and weaknesses of witnesses' evidence in historical cases, it is important for both plaintiff and defence lawyers to keep these considerations in mind and, where appropriate, bring civil court decisions that have followed the Supreme Court of Canada's guidance in RW to courts' attention so they have some guidance on how to assess the credibility and reliability of adult witnesses speaking to historical and traumatic events from childhood.
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