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Evidence - Stereotypical Thinking (2). R. v. Hoggard
In R. v. Hoggard (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal of a conviction for 'sexual assault causing bodily harm'.
Here the court revisits stereotypical evidence, and a jury charge remedy to it:[26] It is common ground that myth-based reasoning should be eradicated. As has been recently articulated in R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 42-43:The legislative and jurisprudential treatment of these issues reflects a collective understanding that courts should strive to eradicate myths and stereotypes from their decisions because they threaten the rights of complainants and undermine the truth-seeking function of trials.
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This Court has repeatedly held that “myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function” A trial is a truth-seeking process, and reliance on myths and stereotypes distorts the truth. In Mills, this Court explained that myths and stereotypes about sexual assault victims hamper the search for truth and impose “harsh and irrelevant burdens on complainants in prosecutions of sexual offences”. While the accused’s constitutional rights must remain at the forefront of any criminal trial, this Court has also acknowledged that measures can be taken to avoid reliance on myths and stereotypes without compromising those rights. [Citations omitted]. [27] Yet, myths and stereotypes about how a victim might behave persist, including in the jurisprudence. In R. v. Varghese, 2024 ONCA 555, at para. 35, this court said: “[d]iscredited myths and stereotypes endure about how a sexual assault victim should behave, often masked in ‘common sense’ language”, citing 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. As Varghese demonstrates, judges are not immune to myth-based reasoning.
[28] The issue on appeal is not whether myth-based reasoning should be eradicated. Rather it is how best to do so.
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(a) A jury instruction is sufficient and preferable
[32] The jury instructions tell the jury what the law is and how to apply it. The concept that there is no standard way for a complainant to act in response to a sexual assault is well-entrenched in the law: R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 45; R. v. Kiss, 2018 ONCA 184, at para. 101, citing D.D., at para. 65. Akin to the delayed disclosure considered in D.D. over twenty years ago, there is no basis to refute the “undeniable nature of the proposition”: at para. 66. Expert testimony is not necessary to explain this law to the jury. A jury instruction “would have effectively dispelled the possibility that the jury might engage in stereotypical reasoning, [and] it was not necessary to inject the dangers of expert evidence into the trial”: D.D., at para 64. The Supreme Court also presented additional advantages of a jury instruction at para. 67:A jury instruction, in preference to expert opinion, where practicable, has advantages. It saves time and expense. But of greater importance, it is given by an impartial judicial officer, and any risk of superfluous or prejudicial content is eliminated. [33] The trial judge cautioned the jury against stereotypical reasoning four times during the trial, starting with her opening instructions. She reminded the jury that “[t]here is no single rule or way regarding how people who are the victims of trauma like sexual assault will behave during and afterwards.” For further clarification, the trial judge could have expanded and provided examples in the charge. It was not necessary to admit expert testimony.
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[42] I do not agree that expert evidence is required in order to understand jury instructions. The purpose of jury charges is to instruct the jury on how to approach a legal issue. If expert evidence is found to be necessary to explain certain jury instructions, it will likely be sought in many cases. In sexual assault trials, juries will be presumed to require such evidence to be able to understand and apply the judge’s instruction on myths and stereotypes. This, in turn, will mean that the defence might choose to lead expert evidence as to what constitutes a trauma, the duration of the phenomena, factors that may or may not affect the way a particular victim might be expected to react, and factors such as training, health and the duration of the assault.
[43] Admitting expert evidence risks opening areas of cross-examination of a complainant that are undesirable. As explained by Dr. Haskell, a person responds to trauma by reflex and habit, and that habit comes from the personal experience of a person over a lifetime. In response, the accused could argue that the complainant’s experience and prior traumas are appropriate and relevant areas of cross examination as they go to how the expert evidence can be applied.
[44] The efficient use of court resources requires a well-crafted instruction to the jury regarding myths and stereotypes, combined with vigilance, to ensure that counsel do not seek to rely on or advance stereotypical reasoning. This is a better use of court time than calling expert evidence that seeks to explain the mechanisms behind various myths and stereotypes. This type of expert evidence risks distracting and confusing the jury and lengthens and complicates trials. As explained in D.D., at para. 67: “a jury instruction, in preference to expert opinion, where practicable, has advantages. It saves time and expense.”
[45] For all of these reasons, I conclude that the trial judge erred by admitting Dr. Haskell’s evidence. . 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.
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