In this recent Ontario Court of Appeal decision, the Court overturned the lower court’s findings relating to allegations of historic physical abuse, and ordered a new trial. The Appellants were three sisters who alleged they suffered physical abuse when they were children living with their Aunt, the Respondent Katherine Cannon. The allegations related to events which occurred more than fifty years ago. They claimed damages from the Respondent Cannon, and also claimed against the Respondent Attorney General of Canada (“Canada”) for breaching its fiduciary duty to protect them from physical abuse perpetrated by their Aunt.
The trial judge found that the Appellants were credible witnesses, but he concluded that the passage of time made it impossible to determine that the Appellants’ evidence was reliable.[1] He dismissed the claim. Because the claim against Canada was predicated on the allegations of physical abuse by the Respondent Cannon, that claim was also dismissed by the lower court.[2]
Background
The Appellants were all born in Saskatchewan between 1959 and 1963, and are members of the Thunderchild First Nation, an independent Cree First Nations Band in Turtleford, Saskatchewan. After their parents separated in the early 1960’s, they moved to Ontario with their father, and lived with their paternal grandmother. However, the grandmother died in 1965, after which the Appellants moved to live with their Aunt, the Respondent Cannon, her husband, and their three children. The allegations of physical abuse spanned many years and involved frequent incidents. The Respondent testified at the trial and denied the allegations, as did her husband, two of her daughters, her son-in-law, and her niece. The Court stated that the testimonies overall revealed very different factual accounts, and as the trial judge had noted, both versions cannot be true.[3]
The Claim Against Canada
The Appellants claimed against Canada for breach of fiduciary duty because the federal department of Indian Affairs (as it existed then) advised the local Children’s Aid Society in 1966 that it believed it was in the best interests of the children to return them to Saskatchewan and their home reserve, but then failed to effect this return or monitor the placement with the Respondent Cannon. Canada’s position was that it had confirmed the Appellants’ maternal relatives in Saskatchewan would provide care for them, and Canada offered to arrange transportation, however the local Children’s Aid Society rejected the idea because the Appellants were not in need of protection and would therefore not be apprehended and returned to Saskatchewan. Canada argued the authority to decide what was in the best interests of the children belonged to the provincial Children’s Aid Society.[4] The agreement between Canada and Ontario at the relevant time regarding the provision of child welfare services concerned services on reserve. Therefore Canada argued it did not have the legal authority to make any decision with regard to the Appellants’ care while in the Respondent Cannon’s home, as it was not situated on reserve.[5]
Analysis of the Passage of Time and Credibility
The Appellants were self-represented at the appeal, and argued the trial judge improperly determined they were not reliable witnesses due to the passage of time. The Court noted that the presumption on appeal is that the trial judge correctly applied the law, particularly with respect to the relationship between reliability and credibility, and that on a “functional and contextual reading of the trial reasons the focus is on whether the trial judge turned his mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns”.[6]
Further the Court stated that it is “undisputed that when adult witnesses testify about events that occurred when they were children, in general their evidence should be assessed by the criteria applicable to adult witnesses”, however “inconsistences and lack of memory in that testimony must be considered in the context of the age of the witness at the time of the events”.[7] The trial judge acknowledged the events had occurred over fifty years ago, when the Appellants were very young. The Court opined that the trial judge’s “approach to the Appellants’ testimony reveals that he allowed the passage of time to overwhelm his analysis, and his criticisms of the Appellants’ testimony indicate that he was not alive to the principles for assessing adult testimony of childhood abuse”.[8]
The Court noted that the trial judge referenced the Court’s previous appeal decision in R. v Sanichar,[9] that stated particular scrutiny is called for in approaching the reliability of evidence in cases involving historic abuse. The trier of fact “must be mindful of serious inconsistencies in a witness’s account as well as the subtle influences that may have distorted memory over time”.[10] However, the Court stated that while the trial judge “was clearly alive to this caution”, Sanichar “does not, however, instruct a trial judge to reject witness testimony as unreliable because time has passed”.[11] The trial judge had concluded that “in this case, the passage of several decades makes it impossible for me to determine that the [Appellants’] evidence is reliable”,[12] however the Court stated those reasons “reveal that he treated the passage of time as nearly determinative of the Appellants’ unreliability”.[13] The passage of time “cannot overwhelm a trier of fact’s assessment of evidence”, as to do so would be “akin to imposing a limitation period on the Appellants’ claim”.[14]
The Court stated that while triers of fact must be “mindful of time, and appropriately cautious when assessing testimony of events from a distant past”, they “must also be mindful of the context when addressing inconsistencies and a lack of memory” when assessing the testimony of adults trying to recount childhood abuse.[15] When adult witnesses give evidence about events which occurred in childhood, “inconsistencies and lack of memory have to be considered in the context of the age of the witness at the time of the events”,[16] and the presence of inconsistencies “particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events”.[17]
The Court noted that trial judge criticized the Appellants’ evidence as “lacking detail” and “framed in generalizations” because they used the phrases “sometimes”, “I believe”, and “as I recall”.[18] The Appellants were children at the time the abuse allegedly occurred, and the “mere fact that they prefaced many of their answers with these qualifications did not, by itself, mean their evidence was unreliable”.[19] It is “hardly surprising that a witness who is testifying to things that occurred decades ago would use these words.”[20] Further, the Court stated, the “record does not support the trial judge’s finding that their evidence lacked detail”.[21] Where there were inconsistencies between the Appellants’ accounts, it was “unclear” why those inconsistencies “disqualified the Appellants’ testimony about events which occurred when they were all children”,[22] and further, it was unclear why the trial judge did not consider those inconsistencies as “peripheral”.[23]
New Trial Warranted
The Court concluded that it “goes without saying that inconsistencies can be a significant factor in determining the credibility and reliability of the evidence, however, the analysis here is too sparse”.[24] The passage of time was treated as “nearly determinative” and the Appellants’ testimony was “criticized without sufficient explanation or acknowledgement of context” and therefore the trial judge’s finding that the Appellants’ evidence was unreliable was “arrived at by an error in principle” and thus a new trial was warranted.[25]
A new trial was the appropriate remedy because the witnesses’ evidence had not been heard firsthand, and there had been no specific trial court findings with respect to the Respondent Cannon’s witnesses. Also, the trial judge’s reasons with respect to the Respondent Canada were “practically silent” as to that claim.[26] It was therefore not in the interests of justice or “feasible on a practical level” to decide the case on the record filed.[27]
Commentary
This case is an important decision for historic abuse claimants. The passage of time alone cannot render survivors’ evidence unreliable. A careful and nuanced analysis must be carried out by the trier of fact, and any inconsistencies or lack of memory must be considered in the context of the age of the witness at the time of the events. To do otherwise, as the Court of Appeal stated, would be to impose a limitation period on historic abuse claims.
[1] Paddy-Cannon v Canada (Attorney General), 2022 ONCA 110 [Paddy-Cannon] at 4
[2] Ibid
[3] Ibid at 22
[4] Ibid at 25
[5] Ibid at 30
[6] Ibid at 32, relying on R v. G.F., 2021 SCC 20
[7] Ibid at 33
[8] Ibid at 34-35
[9] R. v. Sanichar, 2012 ONCA 117 (overturned on appeal but not as to the reliability of witness evidence)
[10] Ibid at 70
[11] Paddy-Cannon, supra note 1 at 38
[12] Ibid at 38
[13] Ibid
[14] Ibid
[15] Ibid at 39
[16] Ibid at 41 quoting R. v. Pindus, ONCA 55 at 37
[17] Ibid at 40 quoting R. v. W.(R.), [1992] 2 SCR 122 at p 134
[18] Ibid at 43
[19] Ibid
[20] Ibid
[21] Ibid at 44
[22] Ibid at 49
[23] Ibid and quoting W. (R.) at p 134
[24] Ibid at 50
[25] Ibid at 51
[26] Ibid at 52
[27] Ibid
