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The Role of “Common Sense” in Sexual Assault Trials

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Joseph A. Neuberger, Neuberger & Partners LLP

Criminal Lawyers Toronto


In a March 3, 2021 Ontario Court of Appeal decision, Justice Paciocco addressed the growing complexity in defining what comprises a stereotype in sexual assault trials. R. v. J.C., 2021 ONCA 131 offered a number of opportunities to examine how the accused are being blocked from adducing properly relevant evidence.

The first issue of stereotypes arose in relation to the suggested motive that the defence put into play during trial. The Crown position was that it was a stereotype that “women with boyfriends” are prone to lying about sexual assault. The defence suggestion, however, had an evidentiary basis which showed this particular boyfriend was instrumental in how the allegation was disclosed and acted upon.

Justice Paciocco outlined how to differentiate “untethered generalizations about human behaviour” from evidence that is a factual conclusion that is based on the evidence at trial. Additionally, the decision addresses the use and misuse of “common sense” with examples of how inferences can properly be drawn from the factual matrix of the evidence.

Justice Paciocco breaks down the issue into two categories: “The Rule Against Ungrounded Common-Sense Assumptions” and “The Rule Against Stereotypical Inferences.” He then examines each of these errors in more detail.

The approach takes into consideration that “it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility.” He cites a number of recent cases which have highlighted how these generalizations are sometimes misapplied to the accused as well.

He notes a “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.”

This differentiation is often central to pre-trial applications which focus on determining admissibility of evidence and areas of cross-examination prior to trial. The onus is on the defence to show in advance that they will not be engaging in stereotypes or “twin myth” reasoning.

Another area of concern in this case was the improper consideration of why an untruthful complainant would submit herself to cross-examination. Justice Paciocco wrote:

“The primary concern with using a complainant’s readiness to advance a criminal prosecution is that doing so cannot be reconciled with the presumption of innocence. The trial is to begin on the rebuttable premise that the accused is not guilty, not on the basis that the mere making of a criminal sexual assault allegation favours a finding of guilt.”

The final consideration, aside from rejecting the curative proviso, was the trial judge’s rejection of the accused’s testimony that he obtained consent for each and every sexual act on the grounds that it was “not in accord with common sense and experience about how sexual encounters unfold.”

Justice Paciocco pointed out that a presupposition “that no-one would be this careful about consent” undermines the law of consent. He summarizes this conundrum saying, “Simply put, the behaviour the trial judge rejected as too perfect to be true is to be encouraged, not disbelieved ab initio.”

Most certainly, it would be a problem in our legal system if men were required to engage in sexual behaviour which, if followed, would render their testimony to be unbelievable and contrived.

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