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Joseph Neuberger and Diana Davison
In the recent decision R. v. Kruk, 2024 SCC 7, the Supreme Court refused to recognize a proposed “rule against ungrounded common-sense assumptions” as an error of law giving rise to overturning a conviction. Such assumptions, the Court said, are not “errors of law” subject to the standard of correctness on appeal. They are mere possible missteps subject to the stricter standard of palpable and overriding error. The decision creates a higher hurdle for appealing criminal convictions on grounds of generalizations made by a trial judge and narrows a once-popular route to successful appellate intervention. By implication, the Supreme Court decision overrules the attempt by the Ontario Court of Appeal in its decision in J.C. where the Court sought to balance the use of inappropriate stereotypes for complainants with improper inferences from stereotypes about the way accused persons are expected to act.
The Supreme Court specifically stated that to do so would create a false symmetry between complainants and the circumstances of the accused.
The Supreme Court found that the use of common-sense assumptions, even when ungrounded in the evidence, did not equate to the improper use of myths and stereotypes as an error of law.
Kruk was heard in tangent with another case, R. v. Tsang, and in both cases the BC Court of Appeal had unanimously granted retrials. The Supreme Court restored the convictions in both cases, specifically stating that it would be a “new rule” to say that common sense assumptions, in themselves, are barred in general unless there is a clear error material to the resulting decision.
The Supreme Court found that the growing jurisprudence from the lower courts was a novel and improperly formulated approach.
After reviewing the history of recognizing myths and stereotypes about complainants, the Court then went on to say that the principles identifying these errors of law should not be expanded to include all uses of common sense or experience employed by a judge in making their credibility assessments.
The decision attempts to clarify the proper uses of “common sense” and the difference between “reasonable” general assumptions that are rooted in common experience rather than an error that is “an inaccurate generalized expectation about ordinary human behaviour.” Mindful that myths and stereotypes against sexual assault complainants give rise to an error of law, courts must ensure these myths and stereotypes are not extended beyond their permissible scope. The Court clarified with use of an example:
“… just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial. While it is a myth that women regularly fabricate allegations of sexual assault, it is not an error to consider whether the circumstances of a particular case support the existence of a motive to fabricate (see, e.g., R. v. Esquivel-Benitez, 2020 ONCA 160, 61 C.R. (7th) 326, at paras. 9-15) — indeed, where the defence adduces evidence on this point, a trial judge is obliged to consider it to give full effect to the presumption of innocence, and a failure to do so constitutes reversible error. Furthermore, while s. 276 of the Code prohibits the use of prior sexual history to support either twin myth, it clearly does not prohibit such evidence point-blank and for all purposes. So long as it is properly screened by s. 276, such evidence may be used, for instance, to resolve inconsistencies between the complainant and the accused’s testimony as to their relationship.”
The Court also disagreed with the Crown that improper assumptions should be limited to only discredited myths or stereotypes about complainants. Instead, the assumption should be assessed in terms of “reasonableness.” But whether the improper assumption that a conviction is founded upon can be a basis to overturn a conviction, the Court must engage the standard of review of palpable and overriding error. The reviewing Court must first determine whether the erroneous reliance on the assumption is palpable – in that it is “plainly seen”, “plainly identified” or “obvious”. Palpable errors will include assumptions that are obviously untrue on its face or where it is untrue or inappropriate in light of the other accepted evidence or findings of fact. If the appeal court finds that there was a palpable error, the court must still find that the erroneous reliance on the assumption was overriding, in that it is “shown to have affected the result” or “goes to the very core of the outcome of the case. If it cannot be shown that the error was palpable and overriding, a trial judge’s assessment of credibility or reliability will be entitled to deference and there will be no basis for overturning the conviction.
In regard to cited precedent cases that were under scrutiny in this appeal, J.C., Cepic and Roth, the Supreme Court agreed that those cases were rightly decided by the Courts of Appeal. All three cases involved assumptions about human behaviour that were not reasonably grounded in the evidence about the individuals in those cases but rejected the extension of ungrounded assumptions as being an error of law.
Overall, the Supreme Court found that common sense was essential in the fact-finding process in order to assess the evidence at trial. To extend the bar on the use of common-sense assumptions as a whole would cause mischief within the trial system.
In separate but concurring reasons, Justice Rowe offered a more concise framing of the issues, including a flowchart for decision making when trying to determine if a line of reasoning amounted to an error of law.
The decision clarified that “myths” are different than “stereotypes” and that, though there is a particular vulnerability for complainants in sexual assault cases, there are also instances in which this type of fallacious reasoning can improperly prejudice the accused.
The process to determine if the reasoning is a reversible error should continue to give deference to the trial judge and should assess the reasons as a whole before assuming that an impugned comment amounted to an error.
Justice Rowe commented specifically that the “concerns about preserving public resources or promoting the autonomy and integrity of trials, while important, are secondary to the rights of the accused in a criminal proceeding” in order to guard against wrongful convictions.
The move towards seeing normative use of common sense as being improper in and of itself is overbroad and undermines the need for common sense when assessing evidence that was properly admitted at trial.
Although the decision maintains crucial protections to be applied to the assessment of accused evidence at trial, the use of ungrounded assumptions about male accused persons is also fraught with discriminatory beliefs about how male accused persons will or do behave. The removal of the emergence of ungrounded assumptions as an error of law has shifted the scales against the accused to reach a far higher standard to overturn flawed convictions based on improper assumptions. This underscores just how important it is in a sexual assault case to be extremely careful about cross-examination to the lay the foundation for the accused’s narrative and how to write closing submissions to protect against the use of these not only ungrounded assumptions but discriminatory assumptions about male accused persons.
