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Appeal - Standard of Review - Credibility/Reliability. R. v. Kruk
In R. v. Kruk (SCC, 2024) the Supreme Court of Canada - after making a fundamental connection between 'credibility and reliability' findings on the one hand and 'common sense assumptions' on the other - addresses a framework for determining the appellate standard of review for "credibility or reliability assessments":(3) Summary
[92] 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.
[93] 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.
[94] 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.
[95] 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.
[96] 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 CanLII 20 (SCC), [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.
[97] 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 CanLII 80 (SCC), [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.
[98] 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.
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