Case: R. v D.R, 2022 NLCA 2 (CanLII)

Keywords: stereotypical reasoning; credibility; Crown appeal; Criminal Code, RSC 1985, c. C-46, s. 676(1)(a)

Synopsis:

The Respondent is acquitted of sexual touching, invitation to sexual touching and sexual assault respecting his three granddaughters – all persons under the age of 16. The Respondent’s youngest granddaughter, ABR, alleges she was sexually assaulted by the Respondent when she was between 7 and 10 years old. The Trial Judge finds her to be “the most credible of the three complainants” and that “[h]er evidence causes me to strongly suspect the [Respondent] had inappropriate contact of a sexual nature with ABR”. However, in acquitting the Respondent, the Trial Judge places significant weight on evidence suggesting ABR has a “strong and normal relationship with the Respondent…up to the time [her sisters] first came forward with their allegations…” (See para. 5).

The Crown appeals, arguing the Trial Judge erred by engaging in “impermissible stereotypical reasoning”. The Majority of the Court of Appeal allows the appeal and orders a new trial. White J.A. dissents, finding no error of law to displace “the deference afforded to a trial judge’s credibility assessment and warrant appellate intervention”. (See para. 82).

Importance:

The Majority affirmed that “[r]eliance on stereotypes about how victims of sexual assault are expected to act” when assessing credibility is an error of law. (See para. 17; citing R. v. A.R.J.D., 2018 SCC 6 at para. 2). Summarizing the applicable jurisprudence, the Majority stated:

When judges and courts measure or judge a complainant’s actions or inactions in relation to a stereotype in the course of a credibility analysis, they are measuring or judging a complainant’s behaviour against their preconceived assumptions about human behavior [sic] based on speculation (Mills, at para. 119). These preconceived assumptions may be simply untrue (Seaboyer, at 693), or have no basis in fact or experience (D.D., at paras. 63-65). Moreover, such reasoning is often logically irrelevant to the matter at hand (A.R.D., at para. 58). Also, reliance on them in assessing a complainant’s credibility generally causes decision-makers to be diverted away from consideration of the actual evidence in the case (A.R.D., at para. 43, and L.M., at paras. 50-56). (See para. 32).

Fundamentally, the Majority expressed the view that Canadian courts must take care to ensure that the inferences drawn in a criminal matter are “rooted in the evidence” rather than stereotypes or myths about how the victims of crime should act. (See para. 33).

Importantly for White J.A. in dissent, the Trial Judge qualified his remarks. For example, the Trial Judge indicated that, based on “…the entirety of the evidence, including the evidence of the [Respondent] and the foregoing issues I have identified, I am left with a lingering uncertainty about exactly what happened…” (See para. 76). For White J.A., these comments reflect the Trial Judge’s appropriate consideration for the entirety of the evidence, as well as the burden of proof on the Crown:

The trial judge stated that he considered the entirety of the evidence leading to his ultimate conclusion that the burden of proof had not been met. While troubled by the case, he did not allow mere suspicion to displace his essential role of upholding the imperative that underpins our system of criminal law – guilt beyond a reasonable doubt.  The trial judge thoroughly assessed credibility and expressed and applied the proper standard. (See para. 77).

Ultimately, in this case the Majority concluded that the Trial Judge rested reasonable doubt on the conclusion that the “strong and normal relationship” between ABR and the Respondent meant he “could not have been sexually abusing her”. (See para. 34). For the Majority, this was stereotypical thinking – the stereotype being that a victim cannot be happy to see her abuser if she is being abused by him; that a victim is “unable to have any kind of ‘normal’ relationship with her abuser”. (See para. 39). Although a Trial Judge’s assessment of credibility is “always entitled to deference”, the Majority concluded that, where such an assessment is based on impermissible stereotypical reasoning, it is “wrong in law” and must be set aside. (See para. 61).

It remains to be seen whether the Respondent will bring a further appeal of this decision to the Supreme Court of Canada. However, doing so may provide an opportunity for the Court to clarify the degree of deference afforded to Trial Judges with respect to the assessment of credibility.

Counsel for the Appellant: Shawn Patten (Crown Attorney’s Office, St. John’s)

Counsel for the Respondent: Derek Hogan (Newfoundland and Labrador Legal Aid Commission, St. John’s)

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