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Evidence - Assumptions (2). R. v. E.R.
In R. v. E.R. (Ont CA, 2024) the Ontario Court of Appeal considered an evidentiary argument regarding 'assumptions' [Kruk]:[17] Where an appellant asserts that in assessing credibility (or reliability) a trial judge erroneously relied on an assumption that is beyond the bounds of common sense and experience, the reviewing court must first consider the reasons as a whole in the context of the record to assess whether the trial judge’s finding is based on the evidence in the record or relies on an assumption. In the context of the reasons as a whole and the record, what at first may appear to be based on an assumption may turn out to be grounded in the evidence: Kruk, at para. 94.
[18] Trial judges are entitled to rely on common sense and experience in assessing evidence. Absent an error of law, reliance on common sense and experience in the process of drawing inferences is reviewable only if it discloses palpable and overriding error. Palpable errors include, for example, assumptions that are obviously untrue on their face or untrue or inapplicable in light of other accepted evidence or findings of fact. If a palpable error is shown, the reviewing court must also consider whether the error is overriding, in the sense that it could have affected the result or goes to the core outcome of the case: Kruk, at paras. 71-75 and 95-98. . R. v. G.H.
In R. v. G.H. (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown criminal appeal, here involving 'stereotypical reasoning', and the common-sense assumption doctrine set down recently in Kruk (SSS, 2024) regarding sexual assault victims:[15] The Crown argues that the trial judge’s assessment of the complainant’s credibility was influenced by impermissible stereotypical reasoning.
[16] According to the Crown, the trial judge was fixated on the reasons why the complainant would continue to nap with the respondent, or go on scrap runs with him, despite “knowing what would happen”. The trial judge came back to this same point six times in her reasons and then emphasized it again in her conclusions about the complainant’s credibility.
[17] The Crown argues that the complainant did not need to provide any explanation for going on scrap runs. The fact that she continued to go on scrap runs with the respondent was logically irrelevant to deciding whether she was sexually abused. The Crown highlights that these passages in the trial judge’s reasons suggest that the trial judge found it was inconsistent that the complainant would know that a sexual assault would likely occur, yet go on the scrap runs anyway. In doing so, the trial judge presumed that a victim of sexual abuse would not continue to engage with her abuser.
[18] The Crown relies on R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 63, where Paciocco J.A. held that, “it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility.” The Crown asserts that, in particular, it is a stereotype that a complainant would avoid their assailant or change their behaviour towards their assailant, and it is an error to employ such reasoning.
[19] The respondent argues that this approach to common sense assumptions has been overtaken by R. v. Kruk, 2024 SCC 7, 433 C.C.C. (3d) 301, and in any event, the trial judge was not employing stereotypes about how a potential victim of sexual assault might behave, but rather assessing the explanations offered by the complainant and whether they were credible. As the respondent put it in his factum, “Her Honour was not generalizing, but evaluating the evidence of this particular complainant, and finding it lacking, due to numerous inconsistencies that could not be reconciled.”
[20] We accept the Crown’s position that the trial judge’s reasons, and her repeated focus on concerns with the complainant’s explanation of why she continued to engage in certain activities with the respondent notwithstanding the risk of further assault, give rise to an inference that she engaged in stereotypical reasoning. As the Supreme Court has emphasized on many occasions, there is no expected or proper way for a victim of abuse to act, particularly a victim of childhood abuse: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2; Kruk, at para. 192, per Rowe J. (concurring).
[21] Kruk does not provide assistance to the respondent. The Supreme Court clarified that its rejection of a rule against ungrounded common-sense assumptions did not alter or erode in any way the existing rules which do not permit stereotypical reasoning in relation to the expected or appropriate conduct of a victim of sexual assault: Kruk, at paras. 41-45, 54, 57, and 96.
[22] We also do not accept the distinction drawn by the respondent between stereotypical reasoning being limited to how a victim of an assault might act or respond, as opposed to the evaluation of a complainant’s explanation for why they did respond in a particular way. Stereotypical reasoning can apply in both types of assessments. In this case, the trial judge’s assessment of the complainant’s credibility gives rise to an inference that she did not accept the complainant’s testimony because it was inconsistent with how the trial judge believed a victim of assault would or should act in the face of future risk of assaults. . 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. . R. v. Kruk
In R. v. Kruk (SCC, 2024) the Supreme Court of Canada considers the role of common sense assumptions in assessing testimony, here in a case which forecloses the creation of a rule against 'ungrounded common sense assumptions' as an error of law in evidence law:(a) The Role of Common Sense in Evaluating a Witness’s Testimony
[71] First, the proposed rule is incompatible with the often inextricable role common-sense assumptions play in credibility and reliability assessments. Testimonial assessment is largely based on inductive reasoning and the particular circumstances of the case: it requires the trier of fact to make assessments based on probable interpretations of the evidence (R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 111; R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134 (S.C.J.), at para. 23). Testimonial assessment therefore necessarily depends on the life experience a trial judge brings to their task, which, in turn, informs the common-sense inferences they draw from what they see before them.
[72] It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293, the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.
[73] In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” (R. v. Kiss, 2018 ONCA 184, at para. 31 (CanLII); R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38 (CanLII)). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).
[74] Even the proponents of the rule against ungrounded common-sense assumptions accept that common sense is necessary and, to some extent, inevitable, to the task of testimonial assessment. The Court of Appeal in Mr. Kruk’s case acknowledged that in “working through the minefield of legal and evidentiary issues, trial judges apply their common sense to the evidence to reach sound verdicts” (para. 2), and indeed, “[r]elying on their life experience to assess the credibility of witnesses is a daily and appropriate exercise for trial judges” (para. 41). In J.C., the court held that there is no bar on relying on common sense or human experience to identify inferences arising from the evidence — otherwise, circumstantial evidence, which depends on bridging gaps between the evidence and the inference drawn using human experience, would not be admissible at all. The court also correctly observed that there is no bar on using human experience to draw inferences from evidence. Otherwise, many other well-established principles of evidence — such as the idea that fleeing the scene or destroying evidence after a criminal offence is generally proof of concealment of guilt — would also be put at risk.
[75] By prohibiting ungrounded common-sense assumptions, the proposed rule interferes with the necessary recourse to common sense as a part of testimonial analysis. Trial judges are uniquely tasked with assessing the testimony they hear and interpreting the range of possible inferences arising from the evidence. They must be able to rely not only on their judicial experience as fact-finders, but also on their common sense and the generalized expectations it generates about human behaviour. Trial judges will naturally rely on “ungrounded” assumptions about human behaviour in their testimonial assessments and thereby draw on factors that lie outside the immediate record. The judicial function entitles them to do so without requiring extrinsic evidence to support each and every one of their conclusions.
[76] The proposed rule’s rationale is belied by a contradiction inherent in its own logic. It prohibits relying on common sense to introduce new considerations not arising from evidence — while simultaneously acknowledging that common sense can be used as an interpretive aid, which necessarily involves importing considerations arising not from the evidence itself but from a judge’s accumulated life experience. It is effectively impossible to draw a clear boundary between using human experience to interpret evidence or draw inferences (which is permissible under the rule) and introducing new considerations into the evidence (which is not).
[77] According to the rule as described by the majority of the Court of Appeal below in Mr. Tsang’s case, impermissible reasoning is: “affected by implicit, unsupported assumptions about ‘normal behaviour’” (para. 53); “unsubstantiated, untethered to the evidence and a prejudicial stereotype” (para. 65); “assumptions with respect to human behaviour” (para. 73); “generalizations about normative behaviour [that] did not rest on the evidence” (para. 74); “unfounded” assumptions or “generalizations” (paras. 84 and 112); and “unsupported inferences” (para. 115). On the other hand, permissible reasoning includes: “. . . a conclusion about what this complainant is likely to have done in these circumstances” (para. 39 (emphasis deleted)); and “the class of inferences relating to behaviour that may fairly be drawn” and “not used to draw an inference that is ‘unfair and inaccurate’” (para. 40). Curiously, the Court of Appeal in Mr. Tsang’s case considered it permissible to infer that people who have recently met are unlikely to want to share drinking glasses, because such an inference is “based on common sense and [is] not prejudicial” (para. 40). Yet this inference is undeniably a generalization about human behaviour that was not grounded in any evidence.
[78] Given that a trial judge is inevitably bound to rely on a common-sense assumption at some point when assessing a witness’s testimony, the ill-defined requirement that such assumptions must be “grounded in evidence” would also compel counsel in criminal cases to lead direct evidence to establish a wide range of notions that are generally true. To return to the example from Mr. Tsang’s case, to properly be able to find that people who have just met are unlikely to share drinking glasses at a bar — putting aside whether this is actually the case — the court would require direct evidence, presumably from the witnesses themselves. This evidence might include how closely each witness typically interacts with strangers in bars, their personal hygiene habits, and any inclinations or aversions they may have to sharing drinks with people they do not know, as well as presumably the underlying reasons for all of these propositions. Such matters are mundane, take up inordinate amounts of trial time, and are often of minimal, if any, relevance to the alleged offence. Particularly in sexual assault cases, which are already fraught with complexities, the incredible complications this type of evidentiary obligation would occasion cannot be understated.
[79] 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.
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