Historic Sexual Abuse—Corroboration not needed

The Supreme Court of Canada has said that, notwithstanding the absence of corroboration in a case involving historic abuse, a finding of credibility is still possible: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/6211/index.do

In that case, the plaintiff FH had been a resident from 1966 to 1974 of the Sechelt Indian Residential School, an institution operated by the Oblates of Mary Immaculate. Though FH claimed to have been sexually assaulted by M, an Oblate Brother, when he was 10, he told no-one about it until 2000, when he confided in his wife.

Despite inconsistencies in his testimony as to the frequency and gravity of the sexual assaults, the trial judge found him to be credible, concluding that he had been anally raped by M on four occasions during the 1968‑69 school year….

A majority of the Court of Appeal overturned that decision on the grounds that the trial judge had failed to consider the serious inconsistencies in FH’s testimony in determining whether the alleged sexual assaults had been proven to the standard of proof that was “commensurate with the allegation….”

In allowing the appeal, the Supreme Court of Canada said, among other things, that, in serious cases such as this one—where there is little other evidence than that of the plaintiff and the defendant, and the alleged events took place long ago—the judge is required to make a decision.

Sexual assault victims need not provide independent corroborating evidence. Such evidence may not be available, especially where the alleged incidents took place decades earlier. Also, incidents of sexual assault normally occur in private. Hence, trial judges may be required to make a decision on the basis of whether they believe the plaintiff or the defendant. As difficult as that may be, they must assess the evidence and make their determination without imposing a legal requirement for corroboration.

Supreme Court of Canada says Ivan Henry can sue for Charter breach

In a unanimous decision, the Supreme Court of Canada held today that a cause of action will lie where the Crown, in breach of its constitutional obligations (i.e., its obligations under the Charter), causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence.

While the bar remains high, it is nowhere near as high as the “malicious prosecution” bar—one requiring proof of malice on the part of the prosecutor.

A happy day for Ivan Henry, as the decision will doubtless spur settlement discussions. A happy day for the wrongly convicted community, as the decision makes prosecutors materially more accountable than before.