Adult witnesses testifying to allegations from when they were children

After a brief hiatus we are back with case summaries. In this post we take a look at a recent Ontario Court of Appeal (R. v. D.D., 2022 ONCA 786) decision which addresses the principles applicable to an assessment of the evidence of an adult witness testifying to events which allegedly occurred when they were a child.

Issue: Did the trial judge err in their consideration of the complainant’s evidence?

Facts: D.D. was charged with the sexual interference of the complainant when she was between the ages of 5 and 11. At the time of trial the complainant was 18. D.D. was in an intimate relationship with the complainant’s mother at the time of the alleged offences.

D.D. testified. He denied the allegations. He, and the complainant’s mother also said he was never left alone with the complainant.

D.D. was convicted by the trial judge. He appealed his conviction.

On appeal various errors were alleged including that the trial judge’s treatment of the complainant’s evidence, given while an adult, about events she allegedly experienced as a child was flawed.

Ruling:  The Court allowed the appeal and ordered a new trial.

The court affirmed the well-established principle that the evidence of children must be approached on a common-sense basis bearing in mind their mental development, understanding and ability to communicate: R. v. W. (R.) [1992] 2 S.C.R. 122.

A child’s inability to recall peripheral details will not detract from their credibility in the same way it might with an adult witness

These considerations remain relevant to adult witnesses testifying to events which occurred when they were children. That said, where an adult is testifying as to events which occurred when they were a child, their credibility should, in general, be assessed according to criteria applicable to them as an adult witness. While the trial judge cited this concept, he failed to apply it. Specifically, he evaluated the credibility of the complainant as if she were a child at the time that she testified.. The court explained:

To be clear, there can be no issue taken with a trial judge finding that details provided by an adult witness about a childhood experience are the kinds of things a child would remember, or that details recounted by the adult witness provide plausibility or coherence to the account. But what a trial judge cannot do is infer that such details, being provided by an adult witness, must be true because a child would not have the intelligence or experience to concoct those details. That is what the trial judge did in this case.  

Reading the credibility analysis undertaken by the trial judge, one would be hard pressed to appreciate that the complainant was 18 years of age when she testified, and not a young child

Given that the complainant was an adult at the time she testified her knowledge of certain acts or use of adult type language could not form the basis to accept her evidence. There was nothing noteworthy about her evidence in this regard given that she was an adult.

As the court put it: “The trial judge did not simply rely on the witness’s immaturity at the time of the event to put flaws in the witness’s evidence into perspective, an entirely appropriate mode of reasoning. He went further and evaluated the credibility of the adult complainant as if she were a child at the time she testified.”