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Evidence - Stereotypical Thinking
MORE CASES
Part 2
. R. v. Kruk
In R. v. Kruk (SCC, 2024) the Supreme Court of Canada denied an appeal that sought to establish a new evidentiary rule against "ungrounded common sense assumptions". This would-be rule was born in an analogy to the already-accepted rule against sexual behaviour stereotypes that which barred prejudicial presumptions about a woman complainant's behaviour, eg.: that 'by wearing those clothes she was looking for it'. In this latter 'complainant' situation the law holds the use of stereotypes to be an 'error of law', such that an appellate court examines the trial judge's findings on a non-deferential 'correctness' standard of review. The court's conclusion here is that in any other context [ie. non-complainant sexual behaviour, and (apparently) entirely non-sexual as well] the use of 'ungrounded common-sense assumptions' could either be a finding of fact or law as assessed by the appeal court. While the courts haven't been clear here on what is meant by 'ungrounded', it appears to me as though they mean some form of 'corroboration' (either factual or circumstantial) of the 'common sense assumption':I. Introduction
[1] 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.
[2] 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.
[3] 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.
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III. Analysis
[16] In both Mr. Kruk and Mr. Tsang’s cases, the British Columbia Court of Appeal reviewed the trial judges’ credibility and reliability findings on a standard of correctness. In line with this approach, the respondents now ask this Court to recognize the proposed rule against ungrounded common-sense assumptions as grounding an error of law.
[17] These appeals are part of a broader pattern in which special rules have been proposed for the assessment of credibility and reliability in sexual assault cases.[1] The rule against ungrounded common-sense assumptions is before this Court for the first time, and the question of whether it should be adopted should be approached based on first principles relating to credibility and reliability assessments and existing standards of review. When the rule comes into play in sexual assault cases in particular, constitutional imperatives call for the consideration of the Charter rights of both accused persons and complainants as well as the interests of society at large (R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. J.J., 2022 SCC 28). This approach is part of the obligation to strive towards “the fair, ethical and non-discriminatory adjudication of sexual assault cases” (D. M. Tanovich, “Regulating Inductive Reasoning in Sexual Assault Cases”, in B. L. Berger, E. Cunliffe and J. Stribopoulos, eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg (2017), 73, at p. 95).
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A. The Proposed Rule Against Ungrounded Common-Sense Assumptions
[19] The proposed rule against ungrounded common-sense assumptions originated in a trio of key cases — R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289; R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286; and Roth — and has been most clearly and recently articulated in R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433. The Court of Appeal in Mr. Kruk’s case cited to the trio of cases and specifically quoted the rule as stated by the British Columbia Court of Appeal in Roth, while the Court of Appeal in Mr. Tsang’s case relied on the rule as stated in J.C.
[20] In Perkins, the Ontario Court of Appeal held that the trial judge’s finding that a “virile young man with a full erection bound on having a climax would not lose his erection” was not the use of acceptable common sense, but was instead a conclusion reached outside the evidence and beyond the proper scope of judicial notice (paras. 35-36; see also para. 40). In Cepic, the Ontario Court of Appeal held that the trial judge’s characterization of the accused’s testimony as “implausible” and “nonsensical” was untethered to the evidence and reflected erroneous assumptions about what a young woman would do and stereotypes about male aggression (paras. 19-27). Both Perkins and Cepic were subsequently invoked in Roth, at para. 65, in which the British Columbia Court of Appeal articulated the following rule: “. . . although judges are entitled to rely on their human experience in assessing the plausibility of a witness’s testimony, they must avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence . . . .” The court went on to find that the trial judge had erred in relying on the speculative assumption that the accused, “a fit and healthy young man who regularly worked out and trained as a power lifter” (para. 56), would not fall asleep during a cab ride, erroneously leading the trial judge to reject the accused’s narrative.
[21] In J.C., the trial judge had found the accused guilty of sexual assault and extortion, accepting the complainant’s testimony that the accused had threatened to post a sexual video recording of her online if she did not continue her sexual relationship with him. On appeal, the accused alleged that the trial judge made two errors in his credibility assessment. First, the accused alleged that the trial judge impermissibly used stereotype to reject his testimony about expressly seeking the complainant’s consent before engaging in specific sexual acts — the trial judge had held that the accused’s testimony on this point was “too perfect, too mechanical, too rehearsed, and too politically correct to be believed” (para. 4). Second, the accused alleged that the trial judge had erred in characterizing the defence’s theory that the complainant had fabricated the allegations to conceal cheating from her boyfriend as relying on stereotype, when in fact it had been grounded in the evidence.
[22] The Ontario Court of Appeal unanimously allowed the appeal, set aside the convictions, and ordered a new trial. The court theorized a new approach to credibility and reliability assessments in sexual assault cases that consisted of two separate but interrelated rules: the new “rule against ungrounded common-sense assumptions”, and the modification of an existing “rule against stereotypical inferences”, the latter of which prevents judges from relying on stereotypes about how sexual assault complainants or accused persons are expected to act in assessing their credibility (J.C., at para. 63, citing Roth, at para. 129; R. v. A. (A.B.), 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5; Cepic, at paras. 14 and 24). The court considered that failing to abide by either rule was an error of law reviewable on a standard of correctness where the error played a material role in the impugned conclusion.
[23] The appeals before this Court are therefore part of a body of recent jurisprudence that seeks to transform how credibility and reliability findings in sexual assault cases are reviewed on appeal. This jurisprudence undertakes three significant legal innovations. First, it introduces a novel general rule against ungrounded common-sense assumptions. Second, it classifies any breach of this rule as an error of law. Third, it takes the existing error of law barring the use of myths and stereotypes about sexual assault complainants and transposes it into a separate, parallel error of law relating to all factual assumptions about all witnesses, including the accused.
[24] Mindful of the context in which many of these cases have been argued, at the core of this novel approach is an explicit analogy between the historic treatment of myths and stereotypes undermining the credibility of sexual assault complainants and the principles to be applied when assessing the testimony of accused persons in sexual assault cases. In J.C., the court considered that because reliance on myths and stereotypes against sexual assault complainants is an error of law, it would be “equally wrong to draw inferences from stereotypes about the way accused persons are expected to act” (paras. 63; see paras. 72-74, citing R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218; A. (A.B.)). Embracing the proposed rule, other courts have agreed that this established error of law pertaining to myths and stereotypes about sexual assault complainants must also extend to other types of stereotypes or factual assumptions that can work to undermine an accused’s testimony. Collectively, these cases advance the notion that, although myths and stereotypes have traditionally operated to prejudice complainants, these same myths and stereotypes can simultaneously prejudice the accused (R. v. C.M.M., 2020 BCCA 56, at para. 139 (CanLII); R. v. Kodwat, 2017 YKCA 11, at para. 41 (CanLII); R. v. Thompson, 2019 BCCA 1, 370 C.C.C. (3d) 354, at paras. 56-57; R. v. T.L., 2020 NUCA 10, 393 C.C.C. (3d) 195, at para. 35).
[25] The parallel treatment proffered in this line of cases is at the forefront of the cases on appeal. At para. 25, the Court of Appeal in Mr. Tsang’s case relied upon a lengthy extract from J.C. that included the idea that it is “equally wrong” to invoke this historical set of myths and stereotypes about complainants in assessing the testimony of accused persons. Going further, in Mr. Kruk’s case, the Court of Appeal expressly drew a parallel between the historic use of myths and stereotypes as applied against sexual assault complainants, and the use of improper assumptions more generally:Historically, the issue of improper assumptions typically arose in the context of trial judges drawing adverse inferences about the credibility of sexual assault complainants based on discredited myths and stereotypes. The authorities are clear, however, that trial judges must not rely on assumptions and stereotypes in their assessment of testimony given by both sexual assault complainants and accused persons. [Emphasis added; para. 42.] [26] The proposed rule against ungrounded common-sense assumptions thus represents a radical departure from how appellate courts have typically approached credibility and reliability assessments, especially in the context of sexual assault. Crucially, the rule transformed all factual findings that could be said to constitute “assumptions” — which, in the ordinary course, were previously subject to review for palpable and overriding error — into errors of law reviewable on a standard of correctness. The rule also enlarged the well-established prohibition against myths and stereotypes about complainants — a relatively narrow error of law targeted at the fair assessment of a discrete category of witness testimony in a particular subset of criminal trials — well beyond its original scope, presenting it as the doctrinal basis for the creation of a far broader error that applies to credibility assessments of any witness in all criminal trials. The court continues [at paras 27-66] to reason and conclude that this proposed new rule would be pernicious from a number of perspectives - including that it disregards the unique (and Charter-unique) situation of the sex assault complainant in terms of historical prejudice ('myths and stereotypes') regarding credibility, and the treatment of credibility and reliability findings generally.
. R. v. E.D.J-C.
In R. v. E.D.J-C. (Ont CA, 2023) the Court of Appeal considers the related evidence rules against admitting 'ungrounded common-sense assumptions' and 'stereotypical inferences':THE GOVERNING LEGAL PRINCIPLES
[3] The relevant law is not in dispute. The “rule against ungrounded common-sense assumptions” requires judges to avoid speculative reasoning by invoking “common-sense” assumptions, including about human behaviour, that are not grounded in the evidence or appropriately supported by judicial notice: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 58, 61.
[4] The overlapping “rule against stereotypical inferences” prohibits credibility reasoning based on stereotypical inferences or “prejudicial generalizations” about human behaviour: J.C., at paras 63, 65. This rule prohibits inferences and not the admission of kinds of evidence. It is not an error to admit evidence that could be used to draw stereotypical inferences where that evidence is offered in support of permissible inferences: J.C., at paras. 68-69.
[5] Drawing common sense inferences not grounded in the evidence or stereotypical inferences will not constitute a reversible error unless the impugned inference plays a material or important role in reaching a material conclusion: J.C., at para. 71. . R. v. A.J.
In R. v. A.J. (Ont CA, 2023) the Court of Appeal considers an argument of stereotypical reasoning:[12] The appellant asserts that the use of the words “implausible” and “unusual” suggests that the trial judge relied on stereotypical generalizations about the “usual” way a sexual encounter should unfold and how the parties should behave. He improperly used those generalizations to repeatedly undermine the appellant’s credibility rather than relying on the evidence before the court. The appellant relies on R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286, at para. 23, where this court found that the trial judge’s repeated use of words like “implausible” and “nonsensical” to characterize various aspects of the appellant’s testimony reflected stereotypical reasoning, and R. v. Kodwat, 2017 YKCA 11, where the Yukon Court of Appeal characterized the trial judge’s statement that it was “inconceivable” that any 17 year old woman would have engaged in consensual sex with an unfamiliar man of the appellant’s age, as a stereotypical assumption or generalization.
[13] We do not give effect to this ground of appeal. The trial judge, in using the terms “implausible” and “unusual” was not engaging in prohibited reasoning based on stereotypes or unsupported generalizations. Rather, he properly assessed the credibility and reliability of the appellant’s account based on the entirety of his evidence. This is unlike Cepic, where the trial judge’s statements about the appellant’s evidence being implausible and nonsensical was “untethered to an evidentiary base”, and Kodwat, where the trial judge’s characterization of the appellant’s evidence as “inconceivable” was “lacking in an evidentiary foundation”.
[14] In the present case, by contrast, the trial judge’s observations about the implausibility of key aspects of the appellant’s account were firmly rooted in the evidence. Indeed, he instructed himself on the need to avoid improper stereotypical inferences based on expected human behaviour, and he referred to relevant authorities, including Cepic. He explained that “in the present matter, the concerns raised by the [appellant’s] testimony are found to be grounded on his own evidence and not general assumptions of human behaviour in a given situation”, and that it was “the cumulative effect of all these factual indicators which renders his version implausible”.
[15] The trial judge then identified nine suspicious indicators that he stated collectively rendered the appellant’s version implausible, including that, on his account, the complainant had declined a foot massage, refused to take off her jacket, and had left the living room to re-strap her bra before having consensual sexual intercourse. It was in this context that the trial judge described aspects of the appellant’s account as “unusual”.
[16] The appellant contends that, as in J.C., the trial judge engaged in stereotypical reasoning when he rejected the appellant’s evidence that he asked the complainant several times whether she was consenting to sexual intercourse. As Paciocco J.A. said in that case, “the behaviour the trial judge rejected as too perfect to be true is to be encouraged, not disbelieved ab initio”: at para. 98.
[17] In J.C. the trial judge had rejected the appellant’s evidence about asking for consent at each stage of the sexual encounter as “too perfect, too mechanical, too rehearsed, and too politically correct”. This court concluded that, rather than being an observation that was grounded in the evidence, it was a generalization that invoked a stereotype: it purported to be a universal truth that presupposed that no-one would be that careful about consent.
[18] By contrast in this case, the trial judge found the appellant’s evidence about repeatedly seeking the complainant’s consent to be incompatible with other aspects of his account about the sexual intercourse. He observed that “it [was] somewhat unusual that [the appellant] would have asked [the complainant] many times, at least 3 times, whether she was consenting to the intercourse if she was such an openly, willing participant” and that “his explanation that he did so because this was their second time at having intercourse [was] not compelling if his true belief was that she was consenting and, in fact, initiated this part of the sexual encounter by asking if he was horny, removing her clothes, bending over and going to the bedroom where [she] laid down on the bed”. The trial judge was engaging with, and evaluating the appellant’s overall account of what took place, not relying on generalized assumptions about how people would act when engaging in sexual intercourse.
[19] The appellant also asserts that the trial judge used prohibited stereotypical reasoning when he characterized as “unusual” the appellant’s testimony that, during the sexual intercourse, the complainant brought up how long it had been since she had texted her boyfriend. The appellant contends that, as in Cepic, the trial judge relied on the generalized assumption that a woman would not say she had a boyfriend in the middle of sex, to undermine his credibility.
[20] We disagree. According to the appellant, the complainant did not simply say she had a boyfriend (which the appellant already knew); rather, after having sexual intercourse for 10 or 15 minutes, the only thing she said was that it had been a while since she texted her boyfriend, as a result of which the appellant sped up. In characterizing this as “unusual”, the trial judge was evaluating the logical consistency of the appellant’s evidence. The evidence about what the complainant said was at odds with the appellant’s testimony that the complainant was an active participant who had initiated the sexual intercourse. Similarly, the trial judge’s characterization as “somewhat unusual” that the appellant claimed that he was not at least slightly upset when the complainant brought up texting her boyfriend does not reflect stereotypical reasoning. The appellant’s evidence on this point was inconsistent with his testimony that he wanted to be the complainant’s boyfriend.
[21] These instances where the trial judge referred to the appellant’s account as “implausible” and aspects of his evidence as “unusual” were not indicative of the trial judge applying a stereotype to assess the plausibility of human behaviour. Rather, the concerns raised by the appellant’s testimony were, as the trial judge noted, “grounded on his own evidence, and not general assumptions of human behaviour in a given situation.” As such, there is no merit to this ground of appeal. . R. v. Diehl
In R. v. Diehl (Ont CA, 2023) the Court of Appeal considered "stereotypical reasoning and uneven scrutiny":[3] We begin with an outline of the law regarding the dangers of stereotypical reasoning and uneven scrutiny.
[4] When stereotypical reasoning is alleged, the evidence must be looked at as a whole: R. v. Donnelly, 2023 ONCA 243.
[5] Triers of fact are permitted to rely on “logic, common sense, and experience” in making credibility assessments: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112; R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, 452 D.L.R. (4th) 371; and R. v. Cowan, 2021 ONCA 729, at para. 15; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 39 and 129.
[6] However, they must “avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence”: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 65, relying on R. v. Cepic, 2019 ONCA 541, 57 C.R. (7th) 166, at paras. 19-27; and R. v. Perkins, 2007 ONCA 585, 51 C.R. (6th) 116, at paras. 30-42.
[7] Uneven scrutiny is a “notoriously difficult argument to prove”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. In order to displace the deference due to a trial judge’s credibility assessments, the party making this allegation must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied to something significant (such as rejecting the appellant’s testimony for speculative reasons): G.F., at para. 99. . R. v. S.M.
In R. v. S.M. (Ont CA, 2023) the Court of Appeal considered the evidentiary issue of 'stereotypical reasoning':[18] The appellant argues that the trial judge misapprehended evidence in rejecting the appellant’s explanation as to why the forensic examination of his cell phone revealed regular emails to and from escort sites posting advertisements offering the sale of sexual services by the complainant, as well as numerous calendar entries tracking the scheduling of her clients. He argues that the trial judge’s conclusion that it defied common sense that the appellant would give the complainant “control over” his cell phone because it also contained personal and intimate exchanges between the appellant and another woman failed to acknowledge evidence from the complainant that she sometimes used the appellant’s phone. The appellant also argues that the trial judge relied on stereotypical reasoning in making this finding.
[19] We do not agree. The trial judge’s finding was not based on stereotypical reasoning. The prohibition in engaging in stereotypical reasoning is concerned with trial judges engaging in reasoning not grounded in the evidence on the basis of stereotypes masquerading as common sense inferences: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 59, 70. In this case, the inference drawn by the trial judge that the appellant would not give control over his phone to the complainant because he would not want the complainant to see intimate exchanges he engaged in with another woman was grounded in the trial evidence. The appellant agreed in cross-examination that he would not want the complainant to see his private conversations with other women on his phone. Thus, the trial judge’s conclusion was based on inconsistency in the appellant’s evidence, not on stereotypes. . R. v. Donnelly
In R. v. Donnelly (Ont CA, 2023) the Court of Appeal considered stereotypical/speculative versus common sense evidence findings, which to me are very much akin to the issue of 'judicial notice':[38] That the trial judge had recourse to “a common sense proposition” is not, by itself, an error. Triers of fact are permitted to rely on “logic, common sense, and experience” in making credibility assessments: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112; R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, 452 D.L.R. (4th) 371; R. v. Safieh, 2021 ONCA 644, at para. 7; R. v. Cowan, 2021 ONCA 729, at para. 15; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 39, 129. What constitutes common sense and how common sense applies are determinations for the trier of fact: R. v. Radita, 2019 ABCA 77, 374 C.C.C. (3d) 223, at para. 52, leave to appeal refused, [2019] S.C.C.A. No. 407.
[39] Error arises where common sense and human experience become a substitute for evidence: United States of America v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.), at para. 7; and where common sense inferences are “pulled out of thin air at the whim of the trier of fact” and lack “a reliable factual foundation”: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 56. As a result, trial judges must “avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 65, relying on R. v. Cepic, 2019 ONCA 541, 57 C.R. (7th) 166), at paras. 19-27, and R. v. Perkins, 2007 ONCA 585, 51 C.R. (6th) 116, at paras. 30-42.
[40] While not all assumptions about ordinary human behaviour rest on impermissible stereotypes, caution must be exercised lest the “common sense approach” that purports to rely on common sense assumptions “mask[s] reliance on stereotypical assumptions”: R. v. Steele, 2021 ONCA 186, 154 O.R. (3d) 721, at para. 19; R. v. A.R.D., 2017 ABCA 237, 353 C.C.C. (3d) 1, at paras. 8-9, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218.
[41] On appellate review, courts must “carefully scrutinize reasons to ensure that findings said to be based on ‘common sense or logic’ are reliably just that, and are not, in fact, unfair and inaccurate external viewpoints that find no foundation in the record”: A.R.D., at para. 71.
[42] In R.D.S., at para. 129, in concurring reasons, Cory J. contrasted the difference between the permissible common sense approach and the impermissible speculative approach:On one hand, the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. On the other hand, the judge must avoid judging the credibility of the witness on the basis of generalizations or upon matters that were not in evidence. . R. v. Myles
In R. v. Myles (Ont CA, 2023) the Court of Appeal discusses an issue of 'stereotypical thinking':(1) Stereotypical reasoning
[12] It is an error of law for a trial judge to use stereotypical thinking in order to cross an evidentiary gap, as this court found in R. v. JC, 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 63. The appellant argues that the trial judge used the stereotype that men are interested in sex and more aggressive in pursuing it, in order to find that, by sleeping on the couch with the complainant, the appellant showed his interest in having sex with her. The appellant cites JC, para 70, in support of this argument. This authority does not support the appellant. In JC, at para. 70, Paciocco J.A. held:[I]t is not an error to arrive at a factual conclusion that may logically reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence. For example, although it is a stereotype that men are interested in sex, it was not an error to infer that the accused male was interested in sex at the time of the alleged assault where that inference was based on evidence. [13] Indeed, the trial judge’s finding is rooted in the evidence, as she explains in para. 130 of her reasons:Mr. Myles’ explanation as to how and why the complainant came to be at his home for the night was, for me, illogical and contrived. On N.C.’s evidence, she had not been feeling well. Mr. Myles seemed to agree that she was feeling poorly as they left the club. She told him she had vomited in the car, although he seemed to have been at pains in his evidence to distance himself from knowing that she had been sick. Their plan had been for him to drive her home. She lived two minutes away. He had an early morning with his son the next day. She had never before slept over at his home. Yet, for reasons that were very unclear to me, on the drive home, he asked her whether she was alright and whether she wanted to go home or go to his place. He agreed that he wanted her to come over even though she was not feeling well. I cannot accept that he would have asked her to come to his home for the night unless he wanted to pursue his sexual interest in her. I conclude that he used this opportunity to take her to his home for the night with the intention of pursuing some sexual activity with her. [14] We do not agree that the trial judge impermissibly relied on myths and stereotypes about human sexual behaviour in concluding that the appellant would not have slept on the couch unless he wanted to engage in sexual activity with the complainant. Her reasoning was rooted in the evidence, which was noted in para. 130, and elsewhere in her reasons.
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