In R. c. Burke, 2021 QCCQ 3626, May 4, 2021, Gagné, J.C.Q., wrote the following under the heading: “Myths and stereotypes about sexual assault” (at paragraphs 284 to 290):
As the Supreme Court of Canada has recognized, there is no inviolable rule on how victims of a trauma like a sexual assault should behave.
As such, the fate of a complaint must not hinge on the fact that it was filed late since various factors may explain why the complainant was reluctant to report the misconduct: fear, confusion, dependency, vulnerability, shame or embarrassment, feelings of guilt, fear of reprisals, a relationship of trust with the aggressor…
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.
The Courts must strive to avoid judging the credibility of a complainant based on myths and stereotypes about how victims react (or should react) to abuse. It is useful to recall that the doctrine of recent complaint has been rightfully relegated to the jurisprudential wasteland.
The analysis of the complainant’s behavior must avoid the following traps:
1) No inference may be drawn regarding a complainant’s credibility that is based upon perceptions of how a complainant should react to a sexual assault.
2) No adverse inference against the credibility of the complainant may be drawn that is based on the timing of disclosure. Credible complainants may or may not report the incident immediately and there are a multitude of reasons for this.
3) No adverse inference against the credibility of the complainant may be drawn that is based solely on the fact that the accused was previously known to the offender on the post offence relationship between the parties. Credible complainants may or may not avoid further contact with the accused and there a number of reasons for this, particularly when the accused is a friend or family member.
4) No adverse inference against the credibility of the complainant may be drawn that is based on a lack of evidence of physical evidence of struggle. Credible complainants may or may not struggle or fight in response to a sexual assault. To draw an adverse inference on the basis of a lack of injury or a lack of evidence of a struggle is to rely on the myth that a complainant cannot be sexually assaulted against their will and must defend their honor.
5) No adverse inference against the credibility of the complainant may be drawn that is based on the post offence demeanor or behavior of the complainant. Credible complainants may or may not be emotionally distraught or exhibit a change in behavior post offence.
6) No adverse inference against the credibility of the complainant may be drawn on the basis of the myth that it is more common for complainants to make false allegations of sexual assault than false allegations of other offences, on the basis of ulterior motives.
7) It is an error of law based upon impermissible reasoning to find that although the complainant is deemed to have consented based on the way they were dressed or behaved.
8) It is an error of law to find that the complainant’s consent on a previous occasion or to some sexual activity can be deemed to be ongoing consent to all sexual activity.
In fact, these principles extend beyond the mere delay in formally reporting a sexual offence to the police. Instead, in R. v. D.(D.), the Supreme Court relates to any stereotypical assumption about how sexual assault victims are apt to behave. Courts must be equally vigilant to avoid stereotype-rooted thinking when asked:
• Why did the victim not scream for help during the sexual assault?
• Why did the victim not seek help from nearby bystanders in the moments following the assault?
• Why did the victim not run out of the room?
• How could a victim of sexual assault possibly continue to speak to her alleged aggressor (by phone or in person), in the days following said assault?)
In many circumstances, a victim’s decision to continue contact with an abuser is understandable. In other cases, the context is such that it would be unrealistic to expect the victim to cry for help or attempt to flee. Each case will be fact-specific.