Joseph A. Neuberger
Neuberger & Partners LLP
Toronto/Brampton Criminal Defence Lawyers
It is not an error in law to make determinations grounded in the evidence about the specific individuals who have testified. Myths and stereotypes are engaged when comparisons are made to imagined “real victims” or conclusions about what a “type” of person would do.
As the Court of Appeal wrote in R. v. J.C., 2021 ONCA 131 at paras 68-69:
- The second critical point in understanding the rule against stereotypical inferences is that this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence. Professor Lisa Dufraimont makes this point admirably in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L. J. 316, at pp. 345-46, 350; and it is reinforced in A.R.D., at paras. 6-8, 62; and Roth, at para. 73.
- For this reason, it is not an error to admit and rely upon evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype: Roth, at paras. 130-38. For example, in R. v. Kiss, 2018 ONCA 184, at paras. 101-2, evidence that the complainant did not scream for help was admitted, not to support the impermissible stereotypical inference that her failure to do so undermined the credibility of her claim that she was not consenting, but for the permissible purpose of contradicting her testimony that she had screamed to attract attention. (emphasis in original).
Evidence is not a myth or stereotype in or of itself, it is the inferences drawn from the evidence that must be tethered to evidence about the actual people involved in the case. We may look at testimony given by a witness about who they were, what they were thinking and how they say they felt at the time to assess the reasonableness of their actions.
As the Court of Appeal explained in R. v. Kiss, 2018 ONCA 184 at para 30, evidence can make one version of events more or less plausible:
- In isolation, this passage may appear to be problematic. The phrase “in harmony with the preponderance of probabilities” comes, however, from Faryna v. Chorny, 1951 CanLII 252 (BC CA),  2 D.L.R. 354,  B.C.J. No. 152 (B.C.C.A.), a case the trial judge had cited earlier in his reasons. The Faryna decision is widely regarded as offering guidance in the evaluation of credibility and reliability, whether in criminal or civil cases. The relevant passage from the Faryna decision, at para. 10, is not about weighing the evidence to see whether it is more likely true than not, as the balance of probabilities standard requires. Instead, the passage offers advice on the importance of considering the probability or improbability of an account:
- The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such cases must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
Demeanour, as said in “Doubt About Doubt” supra, states that “before relying on demeanour, trial fact-finders should think critically about how and why they are struck by the performance of the witness, and they should be humble in their ability to draw appropriate significance from how testimony is presented.”
The Ontario Superior Court Justice Quigley wrote in R. v. J. (D.), 2021 ONSC 1300 at para 111:
- That said, I also accept defence counsel’s observation that there is a difference between arguing that a complainant would have or should have behaved in a certain way based on a comparison to an imaginary “real” victim, as opposed to talking about the plausibility of how this particular person behaved in the actual circumstances described. Assessing the coherency of a narrative based on testimony provided by the complainant herself and other evidence regarding the actual sequence of events or circumstances is a proper consideration when evaluating testimony. Stereotypes become a concern only when conclusions are not grounded in the evidence.
This emphasizes how vital it is to elicit in cross-examination of a complainant particular traits and factors that ground the behaviours in the evidence in order to challenge the veracity of the allegations.
Male Aggression Stereotypes:
Just as there are stereotypes about complainants there are stereotypes about men. Because men tend to be taller and weigh more than a female complainant they are sometimes assumed to be sexually aggressive. Men are often assumed to be sexually aggressive or suffer from a theoretical concept of “toxic masculinity.” Conclusions about a male accused should, as with female complainants, be based on the actual evidence at trial about those individuals.
Examples of important recent decisions calling out improper reasoning based on male aggression stereotypes are:
v. Ururyar, 2017 ONSC 4428 at para 60:
- I understand the trial judge to be saying that the appellant’s evidence is not credible because it conforms to a pattern of behaviour that might not be seen as predatory by the uninformed but can be recognized as predatory by those who are informed, presumably by rape literature. If this is his reasoning, it is not permissible. It is one thing for a trier of fact to recognize that a friend of a complainant may have raped her. It is another thing to reason backwards that friendship, or niceness, properly understood, can be a badge of rape. That appears to be what the trial judge did here. I agree with the trial judge that we must be vigilant to reject pernicious stereotypical thinking about the behaviour of women. At the same time, we must not adopt pernicious assumptions about men and their tendency to rape.
R. v. Roth, 2020 BCCA 240 at para 71:
- In my view, the credibility of the appellant’s evidence about the events in the cab, including his explanation for why he may have fallen asleep, was discounted on the basis of an unfounded (and therefore speculative) assumption about his physical stamina arising from his training as a powerlifter. The assumption was developed in cross‑examination; regrettably, it then made its way into the judge’s credibility analysis.
R. v. Cepic, 2019 ONCA 541 at paras 23-24:
- Here, the trial judge’s repeated use of words like “implausible” and “nonsensical” to characterize various aspects of the appellant’s testimony is untethered to an evidentiary base. It reflects a conclusion based almost entirely on an assumption about what a young woman would do in this context. And the context was significant: a women’s only party in a highly sexualized environment involving alcohol and male dancers.
- On this basis alone I would allow the appeal. But the trial judge also seems to have utilized stereotypes about male aggression. When discussing the appellant’s evidence, the trial judge said at p. 31:
- [He] tried to paint [the complainant] as the sexual aggressor, in a way that did not accord with common sense.
R. v. A.V., 2020 ONCJ 315 at para 174:
- A.V. did not deny that he had numerous chances to be alone with B.B. However, a wealth of opportunity does not imply that as a young, sexually inexperienced male, he must have wanted to force himself upon B.B. with aggressive, unbridled lust on at least two occasions. To allow oneself to think along that vein would be as intolerable, as a matter of law and logic, as to allow oneself to believe in many other stereotypical myths, which unfortunately have arisen regarding how sexual assault victims are supposed to act.
Hence, there is a real danger when the prosecution seeks to rely upon evidence about how men behave for character and propensity evidence that would lead to reasoning based on a stereotype about male sexual aggression. There is a growing body of case law supporting that these lines of reasoning are equally as impermissible as myth bases reasoning about female complainants.
 Isabel Grant and Debra Parkes, Equality and the Defence of Provocation: Irreconcilable Differences, 2017 40-2 Dalhousie Law Journal 455, 2017 CanLIIDocs 3501 page 477