Simon's Megalomaniacal Legal Resources

Evidence - Stereotypical Thinking

. 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.