Testing the Evidence: A Defence Perspective on Civil Sexual Abuse Claims

By Isha Sharma

Civil sexual abuse claims in Ontario present a distinct evidentiary challenge. Unlike most civil cases, which rely on documents or independent witnesses, these claims often turn primarily on the testimony of the plaintiff. The difficulty is compounded by the fact that many allegations surface years, sometimes decades, after the events in question.

The removal of limitation periods for civil sexual abuse claims acknowledges that disclosure may be delayed for complex reasons. (Section 16 of the Limitation Act, 2002.) There can be prejudice to the defendants in such cases that arises from delays attributable to the plaintiff, which may hinder the defendant’s ability to mount a proper defense. (Slota v. Kenora-Rainy River Districts Child and Family Services, 2019 ONSC 126). However, defendants cannot create prejudice by failing to take steps to defend or to do something they reasonably could or ought to have done. (Id.) Regardless, the passage of time creates practical challenges for defendants. Memories fade, records may no longer exist, and witnesses are often unavailable. In many cases, the trier of fact is left to assess competing accounts with little objective evidence.

Credibility and reliability are frequently determinative in these cases. Appellate courts afford deference to credibility findings in sexual assault cases and should only interfere if there is a clear error. (Joseph v. Debs, 2022 ONSC 837). In civil cases, it may come down to whether the plaintiff or defendant is to be believed to determine if an alleged sexual assault occurred. (Vanderkooy v. Vanderkooy et al, 2013 ONSC 4796).

The lack of physical evidence of abuse does not undermine the credibility and reliability of a victim’s evidence or make it inherently improbable. (Id.)However, courts require clear and cogent evidence to substantiate claims of sexual abuse. (Id.) For defence counsel, this places significant importance on the ability to test the evidence through cross-examination.

The task of cross-examination in such cases is not straightforward. Plaintiffs may present evidence that includes gaps, inconsistencies, or evolving recollections over time. While identifying inconsistencies remains a legitimate aspect of advocacy, not all discrepancies are equally significant. The focus must remain on whether they meaningfully affect the reliability of the evidence. Defence counsel must also avoid improper credibility assessments grounded in stereotype or assumption, ensuring that the analysis remains tied to the evidence relevant to the allegations.

Cross-examination, as the central tool for testing evidence, must be approached with care. The manner in which questions are asked can significantly influence how the evidence is received. An overly aggressive or confrontational approach, including unnecessary repetition, overly complex phrasing, or an unduly adversarial tone, risks shifting attention away from the substance of the testimony and may undermine the credibility of the defence, particularly in jury trials where tone and perception are closely observed.

A significant concern raised in this context is that many survivors of sexual abuse experience the civil litigation process itself as re-victimizing or retraumatizing, particularly during adversarial cross-examination. Maintaining a controlled and neutral style of questioning allows counsel to keep the focus on the substance of the evidence. It also assists in ensuring that the cross-examination remains fair, proportionate, and effective.

A more effective approach is focused, controlled, and responsive to context. There is increasing recognition within Ontario litigation that trauma can affect how individuals recall and communicate events. Evidence may be delivered in a manner that is non-linear, hesitant, or lacking in detail. While this does not diminish the role of cross-examination, it does inform how that process should be carried out. In S.Y. v. F.G.C. 1996 CanLII 6597 (BC CA) the court stated that “To assess damages for the psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water. The possible consequences of such abuse presently are not capable of critical measurement.”

Trauma-informed practice is increasingly recognized in Ontario litigation. A proposed trauma-informed claims process, which departs from conventional adversarial litigation, can provide claimants with agency to choose a suitable claims track, including one without cross-examination, as was the case in the class action settlement in McKay v. Rowe et al, 2024 ONSC 1378. Such processes, administered by trauma-informed psychologists, allow claimants to access compensation without needing to demonstrate specific harm or undergo cross-examination (Id.).

A trauma-informed approach emphasizes precision over confrontation. Properly applied, a trauma-informed approach does not weaken advocacy; it strengthens it by aligning the manner of questioning with the realities of how evidence may be presented in these cases.