R. v. Kruk, 2022 BCCA 182022 BCCA 3452024 SCC 7 (40095) (40447)

“K and T were convicted of sexual assault in separate and unrelated matters. In both cases, the Court of Appeal overturned the convictions on the basis of alleged errors of law in the trial judges’ credibility and reliability assessments. Using the rule against ungrounded common‑sense assumptions, which originated in a series of appellate cases, the Court of Appeal found that the trial judges erred in law by making assumptions about human behaviour not grounded in the evidence. In K’s appeal, the court held that the trial judge’s conclusion that it was unlikely that a woman would be mistaken about the feeling of penile‑vaginal penetration relied on speculative reasoning and was not the proper subject of judicial notice. In T’s appeal, the court held that the trial judge had made three assumptions about human behaviour that had impacted her assessment of the evidence: (1) a person would not ask to be spanked while engaging in sexual foreplay out of the blue; (2) a controlling person would not refrain from engaging in vaginal intercourse because they could not find a condom a condom; and (3) a person would not abruptly and unceremoniously drive away from the person with whom they had engaged in consensual sex. The court found that these generalizations were not based in the evidence and engaged in speculative reasoning, and that these errors were material. New trials were ordered for K and T.”

The SCC (7:0) allowed the appeals and restored the convictions.

Justice Martin wrote as follows (at paras. 1-4, 36-39, 50-51, 57, 64, 66, 79, 82-83, 85, 91-98):

“These appeals in two sexual assault matters concern the standard for appellate intervention with respect to a trial judge’s credibility and reliability findings in a criminal trial and the appropriate role of common sense when assessing the evidence of witnesses. The respondents ask this Court to recognize a novel rule referred to as the “rule against ungrounded common-sense assumptions”. A breach of this proposed rule would provide a new, stand-alone basis for correctness review of credibility and reliability assessments whenever an appellate court determines that a trial judge has relied on a common-sense assumption that was not grounded in the evidence. This significant departure from established standards of review in respect of credibility and reliability assessments in criminal cases has been applied by some appellate courts — often in sexual assault cases that turn on the competing accounts of the accused and the complainant.

For the reasons provided below, no such change to the law is warranted, and I decline to recognize the rule against ungrounded common-sense assumptions as giving rise to an error of law. The current standards under which appellate courts review trial judgments are well-designed, long-established, and promote the fair assessment of testimony. There is no need to fashion a new rule of law against any assumption not supported by particular evidence in the record to strive for what existing rules already accomplish. Furthermore, the proposed rule is not a coherent extension of existing errors of law pertaining to myths and stereotypes against sexual assault complainants. Adopting it would undercut the functional and flexible approach to appellate intervention and create mischief across the entire criminal law.

The faulty use of common-sense assumptions in criminal trials will continue to be controlled by existing standards of review and rules of evidence. In some cases, a trial judge’s use of common sense will be vulnerable to appellate review because it discloses recognized errors of law. Otherwise, like with other factual findings, credibility and reliability assessments — and any reliance on the common-sense assumptions inherent within them — will be reviewable only for palpable and overriding error. This standard is better equipped to the task than the new error of law the respondents propose.

In both cases before us, the Court of Appeal for British Columbia overturned the sexual assault convictions on the basis of alleged errors of law in the trial judges’ credibility and reliability assessments. Using the rule against ungrounded common-sense assumptions, the Court of Appeal found that the trial judges erred in law by making assumptions about human behaviour not grounded in the evidence. Having rejected this new error of law, I would assess the trial judges’ findings using the proper standard of palpable and overriding error. I conclude that they made no such errors in their credibility and reliability findings. In the result, I would allow both appeals and restore the convictions.



This Court has repeatedly recognized the prevalence of myths and stereotypes about sexual assault complainants, some of which include the following:

  • Genuine sexual assaults are perpetrated by strangers to the victim (Seaboyer, at p. 659, per L’Heureux-Dubé J., dissenting in part; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 130, per Wagner C.J. and Rowe J.).
     
  • False allegations of sexual assault based on ulterior motives are more common than false allegations of other offences (Seaboyer, at p. 669, per L’Heureux-Dubé J., dissenting in part; R. v. Osolin, [1993] 4 S.C.R. 595, at p. 625, per L’Heureux-Dubé J., dissenting; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 3, per L’Heureux-Dubé J., concurring).
     
  • Real victims of sexual assault should have visible physical injuries (Seaboyer, at pp. 650 and 660, per L’Heureux-Dubé J., dissenting in part; R. v. McCraw, [1991] 3 S.C.R. 72, at pp. 83-84, per Cory J. for the Court).
     
  • A complainant who said “no” did not necessarily mean “no”, and may have meant “yes” (Seaboyer, at p. 659, per L’Heureux-Dubé J., dissenting in part; R. v. Esau, [1997] 2 S.C.R. 777, at para. 82, per McLachlin J. (as she then was), dissenting; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 87 and 89, per L’Heureux-Dubé J., concurring; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 167, per Arbour J., dissenting; R. v. Kirkpatrick, 2022 SCC 33, at para. 54, per Martin J. for the majority; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 44 and 74, per Karakatsanis J. for the majority).
     
  •  If a complainant remained passive or failed to resist the accused’s advances, either physically or verbally by saying “no”, she must have consented — a myth that has historically distorted the definition of consent and rendered rape “the only crime that has required the victim to resist physically in order to establish nonconsent” (Ewanchuk, at paras. 93, 97 and 99, per L’Heureux-Dubé J., concurring, quoting S. Estrich, “Rape” (1986), 95 Yale L.J. 1087, at p. 1090; see also para. 103, per McLachlin J., concurring, and para. 51, per Major J. for the majority; see further R. v. M. (M.L.), [1994] 2 S.C.R. 3, at p. 4, per Sopinka J. for the Court; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 101, per McLachlin C.J. for the Court; Cinous, at para. 167, per Arbour J., dissenting; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 98, 105, 107, 109 and 118, per Moldaver J. for the majority; Friesen, at para. 151, per Wagner C.J. and Rowe J. for the Court).
     
  • A sexually active woman (1) is more likely to have consented to the sexual activity that formed the subject matter of the charge, and (2) is less worthy of belief — otherwise known as the “twin myths”, which allowed for regular canvassing of the complainant’s prior sexual history at trial, regardless of relevance, thereby shifting the inquiry away from the alleged conduct of the accused and towards the perceived moral worth of the complainant (SeaboyerEwanchuk).

Myths and stereotypes about sexual assault complainants capture widely held ideas and beliefs that are not empirically true — such as the now-discredited notions that sexual offences are usually committed by strangers to the victim or that false allegations for such crimes are more likely than for other offences. Myths, in particular, convey traditional stories and worldviews about what, in the eyes of some, constitutes “real” sexual violence and what does not. Some myths involve the wholesale discrediting of women’s truthfulness and reliability, while others conceptualize an idealized victim and her features and actions before, during, and after an assault. Historically, all such myths and stereotypes were reflected in evidentiary rules that only governed the testimony of sexual assault complainants and invariably worked to demean and diminish their status in court.

Overall, this legal backdrop reflected a time in which less was known about the prevalence of sexual violence and its lifelong harms. Eventually, Parliament, the courts, academics, and the public came to understand that the previous legal rules and the inaccurate, outdated, and inequitable social attitudes they represented impeded the equal treatment of sexual assault complainants and, hence, the overall fairness of trials.

New Criminal Code provisions were drafted replacing the former offence of rape with a new offence of sexual assault, and the marital rape exemption was repealed — reflecting the reality that while women continue to make up the vast majority of sexual assault complainants, the offence of sexual assault can be perpetrated by and against people of all genders. Consent was expressly defined in s. 273.1(1) of the Code as the voluntary agreement of the complainant to engage in the sexual activity in question, and ss. 273.1(2) and 273.2 clearly circumscribed when no consent is obtained and the scope of mistaken belief in consent. The corroboration requirement was abolished and the doctrine of recent complaint was abrogated, pursuant to ss. 274 and 275 of the Code, respectively. Finally, ss. 276 and 278.1 to 278.91 now govern the admissibility of a complainant’s prior sexual activity and the production and admission of records containing the complainant’s highly sensitive personal information that is either held by a third party or comes into the hands of the accused.


 

The discriminatory character of stereotypes is made plain from our jurisprudence’s understanding of stereotypes about sexual assault complainants. Reliance on such stereotypes was recognized as an error of law for the very purpose of eliminating discrimination against women and promoting their dignity and equality within the justice system. For example, the requirement that a woman raise a “hue and cry” was based on the now-discredited assumption that, because rape was the worst thing that could happen to a woman, any credible victim would immediately disclose what happened to the first person she encountered. Accordingly, it is now an error of law to draw an adverse inference from the mere fact that the complainant did not report the assault immediately (D.D., at para. 65). The historical requirement that a complainant’s testimony be corroborated, now abolished, was based on the discriminatory assumption that the testimony of a woman was not, in law, equal to that of a man. The twin myths, now prohibited by s. 276 of the Code, were again based on the discriminatory notion that women who had sex were less trustworthy and did not deserve equal respect and treatment under the law (Seaboyer). The negative stereotypes about sexual assault complainants were recognized as errors of law because they often originated in law, took statutory form, and were founded on the misinterpretation of the now-clear definition of consent as the voluntary, communicated agreement to the sexual activity in question — a misinterpretation that undermined the core principle of equal justice for all.

The problem with the proposed rule against ungrounded common-sense assumptions is that it fails to appreciate this crucial dimension. It instead lumps together the sorts of pernicious, discriminatory stereotypes that both the courts and Parliament have worked to condemn and correct with more benign generalizations that, while they may be factually wrong, have nothing to do with inequality of treatment.



In sum, the proposed rule against ungrounded common-sense assumptions cannot be understood as a logical extension of legal rules against stereotyping. To the extent it conflates stereotyping with all assumptions about human behaviour, it runs off course. The concept of a stereotype is not closed and no doubt will continue to evolve in future cases: the closer an error is to the types of myths and stereotypes pertaining to sexual assault complainants that have been recognized in the jurisprudence, the more likely it is that it will amount to an error of law. However, all other mere assumptions drawn in the course of credibility and reliability assessments, like other findings of fact, must remain reviewable for palpable and overriding error.



It must also be emphasized that the concept of myths and stereotypes concerning sexual assault complainants is not unbounded. It has produced a circumscribed set of legal rules that require careful application, close attention to context, and a nuanced understanding of the purpose for which any given piece of evidence is tendered. Some scholars have suggested that the law of myths and stereotypes is presently being overused in contexts where it is inapplicable, or applied without rigour (see, e.g., L. Dufraimont, “Current Complications in the Law on Myths and Stereotypes” (2021), 99 Can. Bar Rev. 536). If this problem exists, the appropriate solution is not to extend parallel errors of law that apply to accused persons as well as complainants. Rather, 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. 



 

Our existing legal framework is sufficient to ensure that the accused’s rights remain protected in sexual assault cases. It is vital that the accused’s Charter rights be carefully respected, that any evidence the accused gives be properly assessed, and that the concept of myths and stereotypes remain appropriately constrained to its proper scope. However, there is no need to adopt the proposed rule against ungrounded common-sense assumptions in order to correct any putative unfairness.



In sum, the proposed rule is fundamentally unfaithful to the necessary and proper use of common sense when assessing the testimony of witnesses. Worse, the rule also fails to establish any discernable boundary between the permissible and impermissible uses of common-sense assumptions. There is no coherent method to determine what assumptions are sufficiently uncontroversial to be “grounded in the evidence”, nor how much evidence is required to “ground” them. Instead, as explained further below, the rule seems to reduce this question to what a particular reviewing court deems to be fair, accurate, or uncontentious. The rule thereby invites appellate courts to substitute their opinions about what generalizations are appropriate or instructive in any given circumstance for those of trial judges, improperly transforming their “strong opposition to [a] trial judge’s factual inferences . . . into supposed legal errors” (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 17; A.F. (Tsang), at para. 74). This dynamic creates uncertainty and unfairness on appeal.


 

The governing standard of review applicable to findings of credibility and reliability is well established: absent a recognized error of law, such findings are entitled to deference unless a palpable and overriding error can be shown (Gagnon, at para. 10, citing Schwartz v. Canada, [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 74). Credibility and reliability findings typically do not engage errors of law, as at their core they relate to the extent to which a judge has relied upon a particular factor and how closely that factor is tied to the evidence. Although such findings may be overturned on correctness if errors of law are disclosed, in most cases it is preferable to review them using the nuanced and holistic standard of palpable and overriding error — which defers to the conclusions of trial judges who have had direct exposure to the witnesses themselves. Trial judges have expertise in assessing and weighing the facts, and their decisions reflect a familiarity that only comes with having sat through the entire case. The reasons for the deference accorded to a trial judge’s factual and credibility findings include: (1) limiting the cost, number, and length of appeals; (2) promoting the autonomy and integrity of trial proceedings; and (3) recognizing the expertise and advantageous position of the trial judge (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 12-18). In light of the practical difficulty of explaining the constellation of impressions that inform them, it is well-established that “particular deference” should be accorded to credibility findings (G.F., at para. 81). Appellate courts are comparatively ill-suited to credibility and reliability assessment, being restricted to reviewing written transcripts of testimony and often focussing narrowly, even telescopically, on particular issues as opposed to seeing the case and the evidence as a whole (Housen, at para. 14, citing R. D. Gibbens, “Appellate Review of Findings of Fact” (1991-92), 13 Advocates’ Q. 445, at p. 446).



The palpable and overriding error standard strikes the appropriate balance between deference to the factual findings of the trial judge and the need for meaningful review of criminal cases on appeal. Although this standard is duly deferential to the trial judge’s unique vantage point and expertise, even under this more deferential standard, appellate courts must determine whether the trial judge’s findings on credibility and reliability are “the product of an evidence-based and context-specific assessment” of the witness’s testimony (R. v. Pastro, 2021 BCCA 149, 71 C.R. (7th) 296, at para. 67). Trial judges must “clearly articulat[e]” the basis for their assessments and point to “a nexus to the facts of the case” as opposed to relying on “assumptions about expected responses or conduct” (Tanovich, at p. 92). Yet, the proposed rule against ungrounded common-sense assumptions undercuts the rationale for the palpable and overriding error standard by inviting appeal courts to examine the specific language of particular common-sense reasoning and scrutinize it on a standard of correctness. The ensuing appellate review exercise quickly becomes highly interventionist, cumbersome, and almost entirely unpredictable.



Overall, the palpable and overriding error standard fosters an appropriately holistic approach to appellate review. As compared to the invasive method associated with the proposed error of law, palpable and overriding error is far better attuned to the deference rightly afforded to trial judges’ factual findings, including with respect to credibility and reliability findings. There is simply no need for this Court to endorse a departure from that established approach — let alone one so substantial — by recognizing a new error whose far-reaching repercussions would reverberate across the entire criminal law.

For the reasons outlined above, the proposed rule against ungrounded common-sense assumptions should not be recognized as giving rise to an error of law. The rule is in no way analogous to the body of law protecting sexual assault complainants from myths and stereotypes, nor can it be justified as necessary to ensure fairness to the accused. It also treats any and all factual assumptions drawn in the course of testimonial assessments as errors of law and thereby represents an unjustified departure from well-established principles governing testimonial assessment and appellate standards of review.

Without the rule in play, appellate courts are left to rely on the existing and well-established law on assessing a trial judge’s credibility or reliability assessments. For the utmost clarity, the applicable framework can be summarized as follows.

First, where an appellant alleges that a trial judge erroneously relied on a “common-sense” assumption in their testimonial assessment, the reviewing court should first consider whether what is being impugned is, in fact, an assumption. Given the nature of how witnesses give evidence and the need to read the trial judge’s reasons as a whole, what might appear to be an assumption on its face may actually be a judge’s particular finding about the witness based on the evidence.

Second, once satisfied that the trial judge did, in fact, rely on an assumption that is beyond the bounds of what common sense and the judicial function support, the reviewing court should identify the appropriate standard of review applicable to the impugned portion of the trial judge’s credibility or reliability assessment.

The standard of review will be correctness if the error alleged is a recognized error of law. Nothing in these reasons should be taken to limit the scope of existing errors of law relating to testimonial assessments that this Court has previously approved. Such errors may include reliance on myths and stereotypes about sexual assault complainants, as well as any improper and incorrect assumptions about accused persons that run contrary to fundamental principles such as the right to silence and the presumption of innocence. Testimonial assessments may also become vulnerable to correctness review for reasonable apprehension of bias (S. (R.D.), at paras. 91-141), making a finding of fact for which there is no evidence (R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25; Schuldt v. The Queen, [1985] 2 S.C.R. 592, at p. 604), and improperly taking judicial notice (see, e.g., R. v. Poperechny, 2020 MBCA 81, 396 C.C.C. (3d) 478). As discussed, reliance on stereotypes other than myths and stereotypes about sexual assault complainants, but which are similarly rooted in inequality of treatment, may also amount to errors of law, and it remains open to all parties to argue as much in future cases. The list of errors of law is not closed — but the rule against ungrounded common-sense assumptions is not on it.

Absent an error of law, the standard of review will be 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” (see Housen, at paras. 5-6; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp., at para. 46). Palpable errors in this context will include, for example, where the assumption in question is obviously untrue on its face, or where it is untrue or inapplicable in light of the other accepted evidence or findings of fact. Although trial judges are clearly best placed to make factual findings and assess the accuracy of generalizations, appellate courts can balance the need for deference to those findings with employing their own common sense to determine whether the presumption was clearly illogical or unwarranted so as to make out a palpable error. Appellate courts are routinely tasked with, for example, considering whether based on “logic and human experience” a particular piece of evidence was relevant or whether an accused’s after-the-fact conduct was consistent with that of a guilty person (R. v. Corbett, [1988] 1 S.C.R. 670, at p. 715; see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 17). In the context of factual generalizations, so long as the assessment remains focused on whether there was any palpable error, such an exercise remains an integral part of the judicial function of a reviewing court.

Once a palpable error has been identified, the reviewing court must also 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” (Clark (2005), at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp., at para. 46). 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 appellate intervention.”