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Criminal - Evidence of Sexual Activity [CCC 276] (3). R. v. A.M. [summary]
In R. v. A.M. (Ont CA, 2024) the Divisional Court allowed a criminal appeal, here that focussed on CCC 276 which addresses "to what extent evidence may be led by an accused with respect to a complainant’s sexual activities other than the offence charged" with respect to one or more of 14 listed offences. Here the specific issue was "the test for applying s. 276 to offences that are not specifically listed in the section, which I refer to as “non-enumerated offences”".
Here the court summarizes the case reasons:[3] The focal point of the conviction appeals is s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. Broadly speaking, s. 276 requires that, for proceedings “in respect of” one or more of 14 listed offences, the court, in a pre-trial screening application, must determine whether and to what extent evidence may be led by an accused with respect to a complainant’s sexual activities other than the offence charged. None of the offences with which the appellants were charged are listed in s. 276.
[4] Accordingly, the main issue in the conviction appeals is the test for applying s. 276 to offences that are not specifically listed in the section, which I refer to as “non-enumerated offences”, and in particular to proceedings involving sexual services or human trafficking offences. The appellants assert that the trial judge erred in applying s. 276 to these proceedings, with the result that their cross-examination of A.K. was improperly restricted and that evidence material to their defences was redacted from A.K.’s preliminary inquiry testimony (which was ultimately admitted in evidence at the trial). If successful on this ground of appeal, they seek a new trial.
[5] The jurisprudence to date is unsettled on the application of s. 276 to cases in which the accused is charged with a sexual services or human trafficking offence, but not with a listed offence. In R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, the Supreme Court described a “broad relational test” for determining when a proceeding involving only non-enumerated offences can nevertheless be considered as being “in respect of” a listed offence, stating that the question is whether any of the charged offences have “some connection to” a listed offence, and “whether, in substance, a listed offence is implicated in the proceeding”: at paras. 75-76. The post-Barton case law at the trial level in Ontario is divided. Some decisions have taken a categorical approach and held that s. 276 applies whenever an accused is charged with a sexual services or human trafficking offence, as these offences invariably have “some connection” to a listed offence. Other decisions have declined to apply s. 276 after undertaking a fact-specific analysis to determine whether there was “some connection” between the charged offences and a listed offence.
[6] For the reasons that follow, I have concluded that s. 276 does not apply categorically to all proceedings where the accused is charged with a human trafficking or sexual services offence, but not with a listed offence, and that the application of s. 276 to such proceedings must be determined on a case-by-case basis having regard to the charges, the evidence the Crown proposes to lead, and whether the defence proposes to elicit or lead evidence of a listed offence, to assess whether a listed offence, although not charged, is implicated in the proceeding. . R. v. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal s.276 ['Evidence of complainant’s sexual activity'] appeal.
Here the court canvasses appropriate evidentiary inferences in sex offences [under CCC 276]:The Relevant Lines of Inquiry Are Not Prohibited Inferences
[75] The trial judge also erred in concluding that the relevance of the sexualized texts depended upon the twin myth relating to consent, codified in s. 276(1)(a). The twin myth relating to consent prohibits “the inference that the complainant’s prior sexual activities, by reason of their sexual nature, make it more likely that she consented to the sexual activity in question” (emphasis added): Barton, at para. 100. The relevance of the sexualized texts I have described above does not derive from the sexual nature of the complainant’s activity of sexting. It derives instead from the fact that those texts communicated the complainant’s intentions about what she would do and agree to at the upcoming meeting. The inference that follows – that she may have acted consistently with her stated intention – does not depend upon judgments about her sexual character, disposition or propensity, or assumptions that she is more likely to consent to sex with Mr. Reimer because in the past she agreed to sext with him. Relevance does not derive from the sexual nature of the activity of sexting. It derives from her stated intentions relating to the specific occasion in question. In my view, the trial judge misunderstood the prohibited inference, thereby making a mistake of law.
[76] There are passages to be found in jurisprudence, including appellate jurisprudence, that if read in isolation from the body of authority on point can be misunderstood as suggesting that s. 276 prevents using previous sexual behaviour from drawing any inferences about consent or credibility. This is not the law. As I will explain, not only does the text of s. 276 say otherwise but the Supreme Court of Canada has made it plain, in jurisprudence that has never been overruled, that in some, albeit rare, cases the constitutional right of the accused to make full answer and defence will require the admission of such evidence.
[77] I will begin with the statutory language. Section 276(1) provides in material part (emphasis added):[E]vidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge, or
(b) is less worthy of belief. [78] The text of the provision does not bar the use of sexual activity evidence absolutely. Indeed, nowhere does it suggest that sexual activity evidence is prohibited in all cases on the issue of consent or credibility. Section 276(1) prohibits using sexual activity evidence to advance only certain kinds of inferences relating to consent and credibility, namely, those that arise “by reason of the sexual nature of that activity”. Not all inferences that arise from events involving sexual activity derive from the “sexual nature of [the] activity”, including on the issue of consent and credibility. Proceeding on the assumption that they do would render the limiting phrase “by reason of the sexual activity” meaningless yet it is this limiting phrase that saved s. 276 from being struck down because of unconstitutional overreach.
[79] R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, was the second and most recent case in which the Supreme Court of Canada was called upon to adjudicate the constitutional validity of s. 276. The version of s. 276 that was before the Darrach court, which has not been subject to material amendment since that decision, was enacted in response to the Supreme Court’s earlier decision in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, where the majority struck down a prior version of s. 276 because of its unconstitutional overreach. The prior version of s. 276 was so broad that it purported to exclude evidence of a complainant’s prior sexual activity, even in circumstances where it was relevant and bore significant probative value that was not substantially outweighed by the risks of prejudice it presented. One of the illustrations that McLachlin J. (as she then was) provided of sexual activity evidence that would be unconstitutional to exclude involved evidence relevant to the issue of consent. The hypothetical example was a highly specific pattern of previous conduct by a complainant who engaged in consensual sex in order to extort money from her sexual partners by later threatening to claim that she was sexually assaulted if they did not pay: Seaboyer, at pp. 615-16. By using this illustration to demonstrate that former s. 276 went farther than the Charter allows, McLachlin J. necessarily recognized that an accused person, charged under similar factual circumstances, would have a constitutional right to such evidence, even on the issue of consent.
[80] In Darrach, Mr. Darrach argued that current s. 276(1) contravened the Charter because, contrary to the constitutional balance identified in Seaboyer, it purported to impose a blanket prohibition, including on the issues of consent and belief in consent, the issues in his case. Gonthier J., for the Court, found that this was not so. After noting at para. 1, that s. 276 “essentially codifies” Seaboyer, he said, at para. 32:Far from being a ‘blanket exclusion’, s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences… namely that a complainant is more likely to have consented or that she is less worthy of belief ‘by reason of the sexual nature of [the] activity’ she once engaged in. [81] In describing the inferences that are caught by s. 276(1), Gonthier J. focused on the limiting phrase, “by reason of the sexual nature of that activity”. He explained that this “is a clarification by Parliament that it is inferences from the sexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited” (emphasis added): Darrach, at para. 35; see also R. v. T.W.W., at para. 26, where this passage is reproduced. Of tremendous significance, in Darrach, at para. 58, Gonthier J. explicitly recognised that there are rare cases where other sexual activity will be relevant to consent without engaging twin myth reasoning.
[82] Gonthier J.’s description of the prohibited inferences in Darrach, at para. 32 - “that a complainant is more likely to have consented or that she is less worthy of belief ‘by reason of the sexual nature of [the] activity’ she once engaged in” – is also instructive. This is essentially the same articulation of the prohibited inferences that was repeated in Barton, and that I rely upon in para. 75 above. Because its constitutional validity was directly in issue in Darrach, Gonthier J. went on to explain the operation of the legislation in detail. He said its function is to remove “discriminatory generalizations about a complainant’s disposition”: Darrach, at para. 34. This is in keeping with the fact that the prohibited inferences were historically based upon judgmental and sexist inferences about the character of “unchaste” women arising from the sexual nature of their past activity: Seaboyer, at p. 604.
[83] The following are illustrations of prohibited lines of reasoning that flow from the sexual nature of the activity: (1) that “unchaste” women are more likely to have consented (R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 670-71, quoting Seaboyer, at p. 604; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 101; Barton, at para. 56); (2) that by reason of her past sexual activity a complainant has a “disposition to consent” (Darrach, at para. 34) or a general “propensity to consent” (Barton, at para. 55); (3) that “because the complainant had consented to sex with [the accused] in the past, in similar circumstances, it was more likely she had consented on the [occasion] in question” (Goldfinch, at para. 47); and (4) “because the complainant had ‘typically’ consented to sex … in the past, she was more likely to have done so on this… occasion” (Goldfinch, at para. 72). I am not suggesting that this is an exhaustive list. I provide it to illustrate that the relevance of the sexualized texts that communicated the kind of activity the complainant intended to engage in during her pending date with Mr. Reimer does not derive its relevance from twin-myth reasons. Mr. Reimer was not relying on the sexual nature of the complainant’s act of engaging in sexting as proof that she likely consented in the motel. Nor was he relying on the fact that the complainant had consented in the past to engage in the sexual act of sexting with him. To put it in the terms used by Gonthier J. to describe permissible inferences, he was relying on other “relevant features of the activity”, namely, the statements that she had made in those texts about what she intended to do in the future, during the pending meeting from which the charges ultimately arose: Darrach, at para. 35. In my view, there is nothing discriminatory in inferring that her stated intention to engage in consensual sexual activity on that future occasion has a logical tendency to increase the likelihood that she consented in the motel room. This inference does not trade on sexism, and it is not built on myths about female sexuality. The evidence yielded a logical, permissive inference, and the trial judge erred in finding otherwise. . R. v. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal s.276 ['Evidence of complainant’s sexual activity'] appeal.
Here the court reviews the s.276 sexual evidence admissibility regime:The s. 276 Admissibility Regime
[27] The first two grounds of appeal raise s. 276 issues. I will begin my analysis by setting out the material statutory provisions. Section 276 provides, in relevant part:(1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge … determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
(3) In determining whether evidence is admissible under subsection (2), the judge… shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature. [28] It can be seen that s. 276 does not operate in all criminal prosecutions. First, s. 276(2) applies solely to “sexual activity” evidence relating to a complainant that is called by the accused.[2] There is no controversy that the sexualized texts that Mr. Reimer attempted to have admitted constitute sexual activity as defined in s. 276(4).
[29] Second, s. 276 does not apply unless the accused is being tried for one of the offences enumerated in s. 276 (such as the s. 272(2) charge), or one of those enumerated offences could have been particularized in the charging document because that offence is implicated in a charge that has been laid (such as the s. 279(2) charge, where the unlawful confinement allegation entailed being held during an alleged sexual assault): R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 70-78.
[30] Third, s. 276 does not apply to “sexual activity that forms the subject-matter of the charge”. For s. 276 to be engaged, the complainant’s alleged sexual activity must be “other sexual activity”: R. v. McKnight, 2022 ABCA 251, 416 C.C.C. (3d) 248, at para. 231, leave to appeal refused, [2022] S.C.C.A. No. 341. In R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 43, 48, Karakatsanis J. referred to such evidence as “previous sexual activity” evidence.
[31] In simple terms, in the trials to which s. 276 applies, s. 276(1) absolutely prohibits evidence from being used to draw what are commonly referred to as “twin-myth” inferences: Goldfinch, at para. 40; R. v. T.W.W., 2024 SCC 19, at para. 25. “The accused must propose a use of the evidence that does not invoke twin-myth reasoning”: Goldfinch, at para. 51. Below, I will describe in some detail the prohibited inference related to consent, identified in s. 276(1)(a).
[32] Section 276(2) makes other sexual activity evidence prima facie inadmissible if called by an accused person: Goldfinch, at para. 40. It sets out cumulative preconditions to admission that the accused must satisfy, effectively creating two distinct hurdles to admission. First, s. 276(2) reaffirms that if the sexual activity evidence is proposed to be called for a purpose prohibited by subsection (1) it cannot be admitted. This is the first hurdle: the accused must offer the other sexual activity evidence for a permissible purpose. Second, even if offered for “other relevant purposes [other sexual activity evidence] must satisfy rigorous criteria”: R v. R.V., [2019] 2 S.C.R. 237, 2019 SCC 41, at para. 2. It must: (1) be relevant to an issue at trial; (2) be of specific instances of sexual activity (as opposed to the complainant’s general character or reputation, for example); and (3) have significant probative value that is not substantially outweighed by the danger of prejudice it poses to the administration of justice, in light of the considerations enumerated in s. 276(3).
[33] In order to discharge the onus of overcoming the prima facie inadmissibility of sexual activity evidence, the accused must apply to the judge[3] for a hearing where they can attempt to meet those two hurdles: s. 278.93. Admissibility therefore requires a two-part process: (1) an application for a hearing into whether the s. 276(2) application is capable of succeeding; and (2) if that application succeeds, an evidentiary hearing to determine whether, based on the evidence presented, the proposed evidence meets the statutory criteria set in s. 276(2): R. v Choudhary, 2023 ONCA 467, 428 C.C.C. (3d) 380, at para. 20; McKnight, at para. 229.
[34] In this case the trial judge blended the two-part process, as is not uncommonly done. In my view, this practice should be discouraged. The stage one application for a hearing is meant to winnow out applications that, on their face, have no realistic prospect of succeeding, not only to avoid wasteful hearings but to spare complainants from the unnecessary embarrassment and indignity of a s. 276 hearing. The stages of the two-stage process should be kept distinct.
[35] Subsection 278.93(2) sets out the statutory foundation needed to succeed in a stage one application for a hearing:An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court. [36] Subsection 278.93(4) directs judges when to grant a s. 276(2) hearing:If the judge … is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge … may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge … shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2). [37] No issues arise in this appeal relating to the hearing itself, so I will not canvas the hearing procedure other than to note that the trial judge in this case did not have the benefit of the majority’s holding in R. v. J.J., 2022 SCC 28, 415 C.C.C. (3d) 285, at para. 100, that complainants do not have right to cross-examine or lead evidence at stage two of the hearing.
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[63] In order to be admissible under s. 276, sexual activity evidence must be “relevant to an issue at trial”: s. 276(2)(b). In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 47, Rothstein J. explained the theory of narrative: “Evidence that is not adduced to prove a live issue, or support the prosecution’s [or defence’s] case, but that is merely provided to complete the narrative may be admitted even if it does not satisfy the strict requirements of relevance.” Put otherwise, “narrative” evidence is simply background information that is received even though it is not relevant to an issue at trial, because it enables testimony to unfold in a natural and comprehensible fashion. Therefore s. 276 applications should not be granted on the theory that the sexual experience evidence is relevant to “narrative”. The accused must show that the sexual experience evidence is relevant to an identified live issue in the case. . R. v. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal dismisses a Crown motion that the successful sexual assault appeal ruling be subject to a publication ban:[2] Publication bans compromise the open court principle, therefore the discretion to impose publication bans should not be exercised lightly: T.W.W., at para. 69. Publication bans at the appeal level should therefore be “exceptional”: T.W.W., at para. 73, quoting Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 63. The evaluation of publication ban motions begins with the presumption that courts will be open and that their decisions will be available for publication: T.W.W., at para. 71. The test articulated in Sherman Estate is to be applied, drawing on the legislative context and objectives of the s. 276 regime and the complainant’s right of privacy and the interests of justice, to determine whether that presumption has been overcome, and the onus of doing so rests with the moving party: T.W.W., at paras. 71-72. This Sherman Estate test, at para. 38, provides that the moving party must establish three things:(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects. [3] The first component of the test is met. Publication of the other sexual activity evidence in this case poses a serious risk to the complainant’s personal privacy and dignity, and these are important public interests: T.W.W., at para. 74.
[4] However, the second component of the test is not met. In the particular circumstances of this case, the risks that the publication of the decision poses to the complainant’s dignity and privacy have been materially mitigated by the fact that the complainant’s name has been anonymized in the decision, unnecessary biographical information has been eliminated, the complainant had no prior or subsequent relationship with Mr. Reimer other than through private communications, and Mr. Reimer does not live in the same city as the complainant. Moreover, the s. 276 application before trial was conducted in camera, and the contents of the application as well as the evidence, the argument and the decision on the application were all subject to a publication ban below. In the circumstances, although evidence of other sexual activity involving the complainant will be published, there is little risk that this evidence will be linked to her. We recognize that the low risk that the complainant will be linked to this evidence may not entirely alleviate the complainant’s anxiety over the publication of the decision. However, we are not satisfied that the requested publication ban is necessary. The serious risk to privacy and dignity has been addressed sufficiently by the alternative measures described.
[5] The third component of the test is decisive against the requested publication ban since the benefits of the ban would not outweigh its negative effects. We have already described the mitigated negative effects of publication on the complainant’s privacy and dignity. In contrast, the negative effects that the requested publication ban would have on the open court principle are not mitigated, but significant.
[6] First, a number of the grounds of appeal addressed in this decision turn on relevance determinations, which, by their very nature, are based on the specific facts of the case. Unless the select factual details of the other sexual activity evidence identified in the decision are made available to the public, public scrutiny of this court’s decision will not be possible. The open court principle exists to ensure that justice can be seen to be done. The justness of this decision will remain opaque if the requested publication ban is imposed, and justice will not be seen to be done.
[7] Second, this decision addresses complex issues about the reach of the prohibited inference relating to consent, an issue on which lower courts require guidance. Once again, this court’s assessment of the nature of the inferences being drawn is based on a close examination of the other sexual activity evidence. The illustrative and precedential value of the decision on this point will be largely undermined if the requested publication ban is granted. The comments made by O’Bonsawin J. for the majority in T.W.W., at para. 79, relating to the role of the Supreme Court of Canada apply without modification to the decisions of this court: “Reasons from, and hearings before, this Court provide not only an explanation of an appeal’s resolution to the parties but also give meaning to the judgment’s precedential value which, through the principle of stare decisis, binds and guides lower courts in the consistent application of the law.” We do not suggest that this consideration will always trump the privacy interests of a complainant in s. 276 cases, but this particular decision addresses issues of conceptual difficulty that require appellate guidance. Given that its resolution turns so closely on the facts, the benefit of that guidance will be diminished, if not lost, by the order requested.
[8] In our view, the measures taken to protect the identity of the complainant so that she is not linked to the other sexual activity evidence contained in the decision appropriately balance the competing interests, whereas the publication ban would not be proportional.
[9] The motion is dismissed. Since our reasons on the motion do not refer to the nature of the other sexual activity evidence, they will be published in the normal course. The court’s decision on the appeal, R. v. Reimer, 2024 ONCA 519, which does refer to the nature of the other sexual activity evidence, will be published in full 10 days after the release of these reasons unless the Crown notifies us beforehand of its intention to appeal this motion decision. . R. v. Varghese
In R. v. Varghese (Ont CA, 2024) the Ontario Court of Appeal allows a Crown criminal appeal from a dismissal.
Here the court considers the rule that stereotypical evidence of the behaviour of complainants is to be avoided in trying sexual offences:The trial judge erred in law in assessing the complainant’s credibility
[33] In explaining why she had trouble accepting the complainant’s account, the trial judge stated that it “defies common sense that the complainant would have run to the washroom to rinse her mouth after forced fellatio at knife point, rather than running out of the hotel room altogether”. In doing so, the trial judge relied on stereotypical reasoning about how a victim of sexual assault should behave, without regard to the complainant’s testimony explaining her actions. This error affected a central issue in the trial judge’s decision, the complainant’s credibility, and was therefore material to it.
[34] The Supreme Court of Canada and other Canadian appellate courts have repeatedly affirmed that “myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function”: R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2; R. v. Kruk, 2024 SCC 7, at para. 43. As stated in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 95:Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. … It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law. [35] A persistent myth is that a victim of sexual assault will necessarily resist, fight, or attempt to get away from their assailant. We now recognize that these are false assumptions. As the trial judge acknowledged elsewhere in her reasons, there is no right way for a victim of sexual violence to behave after the fact: Lacombe, at para. 45; R. v. Kiss, 2018 ONCA 184, at para. 101, citing R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65. Despite this, discredited myths and stereotypes endure about how a sexual assault victim should behave, often masked in “common sense” language: R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 9, cited by this court in Lacombe, at para. 33, and R. v. Donnelly, 2023 ONCA 243, at para. 40.
[36] Reliance on discredited stereotypes and prejudicial reasoning in assessing a complainant’s credibility is an error of law: Kruk, at paras. 29, 44 and 50; Lacombe, at para. 33, citing A.R.D., at para. 9; R. v. Steele, 2021 ONCA 186, 154 O.R. (3d) 721, at para. 17, citing R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2. In concurring reasons in Hodgson, at para. 86, Rowe J. affirmed that such an error would constitute a reviewable error under s. 676(1)(a) of the Criminal Code.
[37] A credibility assessment tainted by a legal error may displace the deference usually given to a trial judge’s credibility assessment and merit appellate intervention: Lacombe, at para. 32, citing R. v. Luceno, 2015 ONCA 759, 331 C.C.C. (3d) 51, at para. 34. In Lacombe, at para. 45, this court found that the trial judge committed a reversible error in comparing a complainant’s conduct “to conduct [expected] of a sexual assault complainant without giving any consideration to her evidence of fear”.
[38] The trial judge in this case made the same error. Her “common sense” reasoning presupposes that a person who has been the victim of a violent sexual assault would attempt, possibly at the risk of injury, to flee at the first opportunity from her assailant. This is the very sort of stereotypical reasoning that courts have been instructed not to rely on. If the trial judge had instructed jurors that, based on common sense, they could infer that the complainant lacked credibility because she did not behave in the way that they might imagine a victim of sexual violence would behave immediately after the alleged assault, this would have been an error of law. It is no less an error of law when the trial judge herself engaged in such reasoning.
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