Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. A.J.K., 2022 ONCA 487, June 24, 2022, the accused was convicted of the offence of sexual assault.  At his trial, the Crown called the complainant’s mother as a witness. She testified that “following upon the alleged incident, the complainant was very distraught for a long time. The complainant’s emotional distress manifested itself in her need for therapy and various accommodations when she returned to school. The trial judge relied upon this evidence as one of the many reasons for why he had ‘strong concerns’ about the credibility of the appellant’s account” (see paragraph 37).

The accused appealed from conviction, arguing, in part, that the trial judge erred in using this evidence as a basis to reject the accused’s evidence.

The appeal was dismissed. The Ontario Court of Appeal concluded that the “trial judge did not err in using evidence of the complainant’s emotional devastation” (at paragraphs 42 to 44):

…it is important to place the trial judge’s use of the complainant’s reaction to the alleged offence within its proper context. It is clear from the trial judge’s reasons that the convictions did not stand or fall on evidence of the complainant’s demeanour following the alleged events. This was the trial judge’s fifth and final reason for why he rejected the appellant’s evidence as a fabrication. The trial judge prefaced his comments with the observation that it was his “final reason” for having “strong concerns” about the appellant’s evidence. Suffice to say, standing on their own and collectively, the other 4 reasons that span the previous 24 paragraphs of analysis into why the trial judge rejected the appellant’s evidence as a fabrication are compelling.

In any event, I disagree with the appellant that the relevance of this evidence rested in impermissible myths about how sexual assault complainants behave after being attacked. To the contrary, a complainant’s emotional disintegration after an alleged offence may well be relevant to whether, as a matter of common sense and human experience, the events occurred as described by the complainant. While it would be wrong to say that all sexual assault victims would experience what the complainant experienced in this case, or that all sexual assault victims would behave as the complainant behaved in this case – an impermissible generalization about victims of sexual assault – the undisputed fact is that the complainant did behave in this way in this case. The inference to be taken from the evidence elicited at trial was that the complainant was emotionally devastated because something emotionally devastating happened to her: see R. v. J.A.,2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 16-18, rev’d on other grounds, 2011 SCC 17, [2011] 1 S.C.R. 628.

This was simply part of the factual matrix that the trial judge was permitted to consider in resolving issues of credibility.