R. v. C.R.J., 2024 BCCA 308, August 29, 2024, at paragraphs 64 to 69:

It is now well-accepted that by itself, the fact of non-disclosure or delayed disclosure cannot support an inference that the alleged sexual violation must not have occurred, or, specific to adult complainants, that the sexual contact must have been consensual…To allow this form of reasoning would give credence to “… now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse …”

However, the law also recognizes that there may be cases in which the fact of non-reporting or delayed disclosure is relevant to assessing the credibility and reliability of a complainant’s testimonial narrative because there is evidence that supports a non-stereotypical nexus between that narrative and a live issue in the case. In other words, there may be cases in which the evidentiary record allows for inferences to be drawn from the fact of non-reporting or delay that are not grounded in myths or stereotypes of how a victim of sexual violence is or is not expected to behave.

As noted by Professor Lisa Dufraimont in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.J. 316 at 346:

… Suggestions that … delayed disclosure [is] always irrelevant or inadmissible, in general or in relation to particular issues like credibility or consent, have been rejected. Instead, the law prohibits stereotypical or discriminatory lines of reasoning flowing from these forms of evidence, but acknowledges that they may be relevant for other, legitimate inferential purposes.

Whether there is a “legitimate inferential purpose” to evidence of delayed disclosure is necessarily assessed on an individualized basis and contextually informed by the factual mosaic of the case. In this case, the defence asserted motive to fabricate (recognized to render delayed disclosure relevant), and it is on this basis that the appellant says the jury required proper instruction about permissible use of the evidence surrounding [the complainant’s] disclosures between 2013 and 2020.

In R. v. Greif, 2021 BCCA 187, leave to appeal to SCC ref’d 39689 (4 November 2021), this Court explained how evidence surrounding the timing of disclosure may be relevant where the defence alleges motive to fabricate:

It would be impermissible for a trier of fact to draw an adverse inference against a complainant’s credibility by relying on the stereotype that a true victim of sexual abuse would not delay in reporting, so a complainant who delayed reporting is less likely to be telling the truth. However, in the appropriate circumstance, it would not be improper for the trier of fact to consider whether the timing of disclosure supports a defence argument that the complainant had a motive to fabricate the events, which would be relevant to their credibility.

The Supreme Court of Canada approved of this same use in Kruk:

… just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial. While it is a myth that women regularly fabricate allegations of sexual assault, it is not an error to consider whether the circumstances of a particular case support the existence of a motive to fabricate (see, e.g., R. v. Esquivel-Benitez, 2020 ONCA 160, 61 C.R. (7th) 326, at paras. 9-15) — indeed, where the defence adduces evidence on this point, a trial judge is obliged to consider it to give full effect to the presumption of innocence, and a failure to do so constitutes reversible error.