In the criminal prosecution of sexual assault cases, the prosecution often grapples with a lack of corroborating evidence. Many times, the key witness in a sexual assault case is the victim him or herself. This can be problematic for Judges trying to piece together what really happened, especially when there are issues of mental capacity or disability, or drug or alcohol intoxication. Ultimately, it is the job of the trial Judge to assess credibility in coming to their decision. But what happens when that decision is overturned on appeal? Is there deference owed to the trial Judge who is hearing the evidence directly?
The Supreme Court of Canada, in a series of cases, has now criticized appeal courts in a number of provinces for overruling the trial decisions. Often the appellate courts decry a lack of explanation for why a victim was believed by the Court, and overturn the decision. The Supreme Court in a series of decisions appears to be reminding the appellate courts that their job is not to second guess trial judges in their assessment of credibility and reliability. In fact, Canda’s top court has been at times scornful in its condemnation of these appellate decisions. In the recent decision of R v. Slatter, the Supreme Court, after restoring the conviction, reminded the appeal court that “Overreliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth seeking process, and creates additional barriers for those seeking access to justice.”
For an excellent article on this issue, including a summary of the recent decisions of the Supreme Court, click here.
The impact of these decisions in the civil context remains to be seen, but this is a clear reminder that the trial judges, who are sitting in court and hearing from the witnesses directly, are owed deference when it comes to their assessment of a victim’s credibility. If you have questions about sexual assault litigation, reach out to our team for a free consultation today. We are here to help.