Court File and Parties
COURT FILE NO.: CR-21-70000083-0000
DATE: 20220603
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.A.
Defendant
Counsel: Ari Linds, for the Crown Sabrina Shillingford, for the Defendant
HEARD: June 2, 2022
RULING ON MID-TRIAL INSTRUCTION RESPECTING INCREMENTAL DISCLOSURE
mr. justice p. campbell
[1] M.A. is charged with a series of offences, including sexual assault causing bodily harm, robbery and extortion, respecting a 70-year-old complainant with whom he appears to have had sexual contact in a public park in the east end of Toronto. The complainant alleged in initial reports to the police, hospital staff and family members that she was effectively coerced into performing oral sex on M.A., a man in his twenties, after he snatched from her a cell phone that she was desperate to retrieve. Six months after these reports, she made an allegation that for about three seconds the defendant had also vaginally penetrated her without her consent, in the course of the same episode. The timing of this disclosure, which was shortly before the preliminary inquiry in the case, was elicited by Crown counsel during the complainant’s examination-in-chief. She acknowledged the delay between her initial allegations and the ones at issue, offering an explanation rooted in her reticence, as a woman of Chinese origin, to speak openly about intimate sexual matters, especially sexual penetration by a man other than her spouse. She said that the assault left her feeling ashamed and pointed out that many women of her background who experienced such an assault have taken their own lives.
[2] Defence counsel has cross-examined extensively on this issue. She has pointed out several occasions in which the complainant gave accounts of the events to professionals whom she might be expected to have trusted, such as police detectives, a nurse, victim services workers and family members, without mentioning penetrative sex. Defence counsel has developed evidence in support of a theory that the allegation of vaginal assault coincided with the complainant’s awareness that the defendant was likely to be released from custody – a prospect she claimed to fear greatly – and was fabricated to ensure that he remained in jail. Defence counsel also challenged the complainant’s assertion of reticence based on her traditional values and upbringing, noting her candour and verbal forcefulness regarding quite intimate sexual and anatomical matters throughout her four days of testimony.
[3] Against that backdrop, Crown counsel asks me to provide the jury with a mid-trial instruction adapting to “incremental” disclosure the holding of the Supreme Court of Canada in R. v. D.D., 2000 SCC 43 regarding more typical “delayed disclosure”. That instruction, in its customary form, is summarized by the Court as follows:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. (emphasis added)
[4] As Crown counsel points out, there is no practical or policy-based distinction between incremental disclosure of sexual assault allegations and disclosures which are, in total, made for the first time well after events are said to have taken place: R. v. D.P., 2017 ONCA 263 at paras. 28-31. There is not, and should certainly not be, an “inviolable rule” that such delays discredit a complainant. The factors noted by the Supreme Court in D.D. may well explain conclusively the passage of time between a sexual offence and the victim’s first mention of it to the authorities, or to anyone. Such “piecemeal” disclosure, where it occurs, should not, standing alone, give rise to an adverse inference against the credibility of a complainant and should not be regarded as more than one piece of a case’s factual mosaic.
[5] These readily acknowledged propositions, however, do not answer the question of when the propositions should first be communicated to the jury, or in what terms. In this case, noting that we are several days away from the final jury charge, the Crown suggests that a mid-trial instruction adapting the D.D. model to incremental disclosure would prevent the jury from allowing an instinctive reaction that the later allegations are likely to be false to become cemented before steps are taken to counter that flawed thinking. The defence responds that its challenge to the credibility of the complainant does not rest on a reductive equation between delayed disclosure and dishonesty but rather on the specific challenges to the truthfulness of the complainant developed in cross-examination.
[6] I am not persuaded that a mid-trial instruction of the kind proposed is necessary or likely to be helpful. I note that there does not appear to be reported authority requiring or even encouraging such a direction nor any language in model charges setting out what it might say. That, I add, is not to say that such an instruction has not been given, or should never be given; I accept that it could serve a valuable purpose in certain cases.
[7] In this case, however, I believe a mid-trial direction would be a needlessly blunt instrument applied to an issue that has been addressed with some finesse and particularity by both sides and should be addressed by the jury in the same way. The D.D. instruction is intended to prevent an unexamined, reflexive belief from leading to the rejection of a sexual assault complainant’s testimony based on delayed or incomplete disclosure. Psychological analysis and, for two decades, judicial determinations, have established that delays in disclosure are quite reasonably explicable, not at all rare, and in themselves no reason to disbelieve allegations of sexual assault. Any disclosure of sexual misconduct may be difficult and tentative on the part of its victim. Shame, embarrassment, guilt, fear and other emotions may inhibit full reporting and lead to the omission of important facts when a partial report is made. This is a reality the jury should be, and in this case will be, instructed upon. However, I believe that the jury is already well past any impulsive or instinctive reaction to the evidence of the complainant’s incremental disclosure. It was elicited by the Crown in direct examination of the complainant and explained by her in ways that the jury may well find completely convincing. The language of the D.D. direction will, to a degree, reinforce that aspect of her testimony. At the same time, because the authorities, including D.D., recognize that the timing of disclosure remains a factor that can be considered in a credibility assessment, against the “factual mosaic” of the entire case, it is certainly open to the defence to argue that the later allegations are a concoction motivated by a desire to keep the defendant in custody and masked by an invocation of cultural traditions. That argument, which expands the factual mosaic of the case, will be very much a matter for the jury.
[8] For now, what I consider to be of importance is that the jury already has a well-developed body of evidence on which to base its ultimate determination. It can assess in a specific context what D.D. recognizes to be broadly true—that delays in disclosure can be the product of the emotions that the complainant has testified she was experiencing and which she says inhibited her from giving a full account. Nothing about the parties’ presentation of this issue so far has encouraged a reflexive consideration of the timing of disclosure and a sweeping rejection of the complainant’s explanation based on stereotypes or fixed but faulty beliefs. It has not been suggested that the emotions she cited could not explain her delay in disclosure.
[9] If I were to introduce into the trial now a special instruction in the language of D.D., I fear I would be placing my thumb on the scale and making it sound as if the jury should prefer an explanation for the timing of the later disclosure grounded in shame and embarrassment rather than one grounded in malice and invention. If I were to give an instruction that mentioned the kinds of explanations advanced by the defence, without linking it all to the evidence, I fear it would be lengthy, confusing and leave the jury wondering why this aspect of the case was being highlighted and why I was telling them about competing ways of looking at this single issue which had already been laid out clearly for them in four days of testimony.
[10] The central holding of D.D. rests on knowledge that the jury will benefit from. It seems preferable to me that they receive it in the context of a full jury charge which includes review of the evidence and the defence theory as well as instruction on the assessment of credibility. Raising it now, as a special consideration, would on the one hand be too much, by isolating it as an issue of unique prominence, and too little, by referring in general terms to a dispute that will have to be resolved by detailed and nuanced examination of a considerable body of evidence.
[11] I also note that this is not the typical case in which concerns about delay or incremental disclosure usually arise. The complainant is not offering uncorroborated testimony which, if it does not stand on its own, will necessarily lead to the failure of the prosecution. On the contrary, the jury is shortly to hear that a man who would appear to have committed two separate thefts of the complainant’s cell phone, both involving a measure of force, between those aggressive acts deposited his sperm on her clothing. The defence will face considerable difficulty in persuading a jury that sexual contact which occurred between those two events, even if it was proposed by the complainant to secure the return of her property, occurred with her legally effective consent as that term has been defined, with rigorous boundaries, by cases from R. v. Ewanchuk, 1999 CanLII 711 (SCC) to R. v. Hutchinson, 2014 SCC 19 and by the Criminal Code in ss. 265(3) and 273.1.
[12] This is an unusual case with an unusual complainant who it is, by turns, compelling and baffling. Her testimony is consistent with a good deal of objective information. It may well be accepted by the jury in whole or in significant part. Even a jury that doubts the allegation of intercourse – even one that thinks it was wilfully fabricated – could find from the balance of her testimony and the other established facts, that guilt of sexual assault has been proven beyond a reasonable doubt. I am convinced that the truth recognized in D.D. is best communicated in the context of a review of the entire body of evidence in my final charge.
[13] Accordingly, I will not at this stage issue a mid-trial instruction focused on the treatment of delayed disclosure.
Mr. Justice P. Campbell
Superior Court of Justice
Released: June 3, 2022
COURT FILE NO.: CR-21-70000083-0000
DATE: 20220603
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M.A.
RULING ON MID-TRIAL INSTRUCTION RESPECTING INCREMENTAL DISCLOSURE
Mr. Justice P. Campbell
Released: June 3, 2022