Court of Appeal Recognizes Passage of Time Alone No Bar to Historic Abuse Claims

Survivors of childhood sexual or physical abuse understand its effects can last a lifetime. It can take survivors many decades to come forward with a civil claim. The passage of time may have discouraged survivors from seeking a civil remedy, but the Ontario Court of Appeal recently stated that the passage of time does not act as a de facto limitation period on historic abuse claims.

The February 2022 Ontario Court of Appeal decision, Paddy-Cannon v Canada (Attorney General),[1] is an important decision for survivors of historic abuse. The allegations in this case related to incidents of physical abuse which occurred more than fifty years ago. The Appellants were three sisters who alleged they suffered physical abuse when they were children living with their Aunt. They claimed damages from their Aunt, and also claimed against the Attorney General of Canada for breaching its fiduciary duty to protect them from physical abuse perpetrated by their Aunt.

The trial judge found that the three sisters were credible witnesses, but he concluded that the passage of time made it impossible to determine that their evidence was reliable.[2] He dismissed the claim. The Court of Appeal overturned the lower court’s findings, and ordered a new trial.

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. The grandmother died in 1965, after which the Appellants moved to live with their Aunt, her husband, and their three children. The allegations of physical abuse spanned many years and involved frequent incidents. The Respondent Aunt testified at the trial and denied the allegations, as did her husband, two of her daughters, her son-in-law, and her niece. The testimonies overall revealed very different factual accounts, with the Court noting, both versions cannot be true.[3]

Passage of Time and Reliability of Evidence

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 trial judge had referenced the Court of Appeal’s previous decision in R. v Sanichar,[4] 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”.[5] 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”.[6] 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”.[7]

Triers of fact must be “mindful of time, and appropriately cautious when assessing testimony of events from a distant past”, but 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.[8] 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”,[9]  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”.[10]

Commentary

In Ontario, there is no time limit to bring a civil claim for damages as a result of a sexual assault or sexual abuse, or as a result of physical abuse if the survivor was a minor at the time of the incident, or if they were involved in an intimate relationship with the perpetrator, or were dependent on them financially, emotionally, physically, or otherwise.[11]

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.

This article was written by member of the Personal Injury Team at McKenzie Lake. If you require assistance with a personal injury matter or wish to speak to a personal injury lawyer at McKenzie Lake Lawyers LLP, please call (519) 672-5666.

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[1] Paddy-Cannon v Canada (Attorney General), 2022 ONCA 110 [Paddy-Cannon]

[2] Ibid at 4

[3] Ibid at 22

[4] R. v Sanichar, 2012 ONCA 117 (overturned on appeal but not as to the reliability of witness evidence)

[5] Ibid at 70

[6] Paddy-Cannon, supra note 1 at 38

[7] Ibid

[8] Ibid at 39

[9] Ibid at 41 quoting R. v Pindus, ONCA 55 at 37

[10] Ibid at 40 quoting R. v W.(R.), [1992] 2 SCR 122 at p 134

[11] Limitations Act 2002, SO 2002, c 24, Sch B at ss 16(1)(h),(h.1),(h.2), 16(1.1), 16(1.2), 16(1.3)