Court of Appeal Clarifies How Delayed Disclosure Plays into Credibility Assessments of Complainants in Sexual Assault Trials

By Joseph Neuberger

The Court of Appeal for Ontario recently provided some helpful clarity on how the timing of disclosure ought to be dealt with in the assessment of a sexual assault complainant’s credibility.

In Rex v SG, 2022 ONCA 727, the Court was asked to overturn a conviction for sexual assault on the basis of a notoriously difficult ground of appeal: misapprehension of the evidence.

The complainant and appellant met on a marriage website. The two were married in India in 2016, and approximately a year later, the complainant immigrated to Canada, with the appellant as a sponsor. The relationship deteriorated quickly thereafter. In late September 2017, the complainant made her first allegations against the appellant to the police.

The complainant alleged three separate incidents that formed the basis of the three counts that were tried:

• Forced oral and anal sex on March 20, 2017 (disclosed in second statement to the police in September 2018)
• Pushing during an argument on July 5, 2017 (disclosed in second statement to the police in September 2018)
• 5-10 seconds of choking between August 14 and 17, 2017 (disclosed to the police in September 2017 in the complainant’s first statement ot the police)

A central point of the defence advanced was that the complainant had a motive to lie. The motive most important to the Court of Appeal was the complainant seeking advantage in parallel family court proceedings in India. Importantly, the complainant made several allegations against the appellant in an affidavit submitted to the Indian court in those proceedings before she made the allegation of the forced intercourse.

The issue on appeal was whether the trial judge had misapprehended the evidence in her assessment of the complainant’s credibility. The trial judge had held the complainant credible, and that there were no material inconsistencies between her account at trial and the account provided in her affidavit in the Indian proceedings.

The complainant said in her examination-in-chief that before she had moved to Canada, “everything was fine” with the appellant. This was in contrast to her statement in the affidavit submitted to the Indian court, wherein she alleged that the appellant had beaten her multiple times during a visit to India in September 2016. The other inconsistency dealt with a beating attested to in the affidavit, allegedly in Canada in May 2017, which was never disclosed by the complainant to the police.

The Court of Appeal held that both of these were material inconsistencies in the complainant’s evidence, therefore, the trial judge’s credibility finding that there were no material inconsistencies in the complainant’s evidence was based on a misapprehension of the evidence.

The other misapprehension of the evidence was with respect to the disclosure of the pushing assault. The trial judge assessed issues relating to the timing of disclosure on the basis that both of the common assaults had been reported in the initial statement to the police in September 2017— when actually, the initial statement only reported the choking assault. The trial judge had said that she accepted the complainant’s evidence with respect to the later disclosure of the sexual assault on the basis that she was uncomfortable discussing any matters of sexuality. Of course, this does nothing to explain away the later disclosure of the non-sexual pushing assault.

Most interestingly, the Court of Appeal provided some helpful guidance at para. 43 with respect to how the timing of disclosure should be examined when evaluating credibility:

• A delay in disclosure, standing alone, does not give rise to an adverse inference against the credibility of a complainant. For this reason, in assessing the credibility of a complainant, the timing of disclosure of an allegation or allegations is simply one circumstance to consider in the context of all of the evidence: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65. However, D.D. does not stand for the proposition that timing of disclosure is irrelevant to credibility. Rather, any issues of timing of disclosure must be assessed in the context of the trial evidence as a whole.

Our law has long since evolved past where a complainant to a sexual assault allegation was expected to immediately report lest they be disbelieved, but at the same time, it is important to remember that the timing of disclosure of a sexual assault complaint may very well cast doubt on the complainant’s version of events depending on the circumstances. This helpful clarification is good news for those who are accused of sexual assault with a delay in allegations—while it by no means re-imposes some species of duty for a complainant to immediately report if they want to believe, it leaves room to question why a particular disclosure was delayed.

The Court of Appeal, based on the misapprehensions of the evidence, ultimately overturned the conviction and ordered a new trial.