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“Common sense” is often treated as a virtue in everyday life, but in a courtroom, it can become a trap. Judges and juries are encouraged to use their life experience to evaluate credibility and evidence, but when common sense is based on stereotypes or unproven assumptions, it can quickly undermine a fair trial.
This issue was front and centre in the Saskatchewan Court of Appeal’s decision in R. v. C.L., 2025 SKCA 9. The case involved serious sexual assault allegations, with credibility being the key issue at trial. The complainant was young and emotionally fragile, and the trial judge accepted her version of events largely because it seemed “unimaginable” that someone would fabricate such a painful allegation. The judge also appeared to place weight on the complainant’s youth as a marker of honesty, and on the assumption that certain behaviours were consistent with trauma, even though no expert evidence was presented.
The result? A conviction that the Court of Appeal later found to be unsound.
In overturning the verdict, the appellate court cited the Supreme Court of Canada’s decision in R. v. Kruk, 2024 SCC 7, which reminded trial judges that credibility assessments must be rooted in evidence, not assumptions or intuition. While courts are allowed to draw inferences from the facts, they must be based on logical reasoning supported by the record, not on what a judge “expects” a victim to do or how they “should” behave.
The danger of relying on common sense is that it opens the door to confirmation bias. Judges, like all people, carry with them unconscious ideas about how people act, how trauma looks, and what truth sounds like. But criminal trials are not a forum for gut feelings, they’re about testing the evidence under scrutiny.
In R. v. C.L., 2025 SKCA 9, the complainant’s testimony had inconsistencies, yet the trial judge dismissed them without much analysis. The defence argued that these contradictions cast reasonable doubt on the allegations. Instead of grappling with those inconsistencies, the trial judge appeared to rely on generalizations about youth, trauma, and believability.
The appeal court made it clear: a judge’s belief in what is “common sense” cannot take the place of legal analysis. Especially in cases that turn solely on credibility, such reasoning risks leading to wrongful convictions, something that strikes at the very heart of our justice system.
This case is a reminder that even well-intentioned judges can make errors when their assumptions go unchecked. For those facing serious allegations, particularly in cases with little or no physical evidence, ensuring that your credibility is judged fairly is critical.
At Neuberger & Partners, we understand how to expose flawed reasoning, challenge improper assumptions, and make sure your side of the story is heard.
Have you been falsely accused? Don’t let bias or generalization determine your future. Contact Neuberger & Partners at 416-364-3111 to speak with our experienced criminal defence lawyers.
