What is the test for a plaintiff to prove that he was sexually assaulted at the time of an assault?

As noted by Fisher J. in Otter v. MacDougall, 2006 BCSC 1536, para. 15, cases of this nature are challenging. The detail of memory of those who might corroborate or contradict the allegations is often faded or lost and there is usually no available objective evidence that might assist in determining the truth. Fisher J. went on in para. 16 to comment that: It is not necessary for the court to conclude that the plaintiff has consciously lied before his evidence is not accepted; it may simply be unreliable. The test is not whether the plaintiff has an honest belief that the assault took place; rather, it is whether he has proven to the requisite standard that the event in fact occurred. The passage of time hampers the plaintiff’s ability to prove his claim, and also affects a defendant’s ability to locate and present evidence.

Similar comments have been made in other cases where historic sexual assaults have been alleged. No doubt long delay poses difficulties to a plaintiff in obtaining and presenting evidence to support his claim, but it places a defendant at a disadvantage as well: Blackwater v. Plint, 2001 BCSC 997; at paras. 337 - 343, varied, 2003 BCCA 671, aff’d 2005 SCC 58; E.(R.E.) v. T.(W.O.), [2000] B.C.J. No. 342 (S.C.) at para. 12.