R. v. Kruk

R. v. Kruk
Collection
Supreme Court Judgments
Date
2024-03-08
Neutral citation
2024 SCC 7
Case number
40095, 40447
Judges
Wagner, Richard; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
British Columbia
Subjects
Criminal law
Notes
Case in Brief SCC Case Information: 40095, 40447
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Kruk, 2024 SCC 7
Appeals Heard: May 18, 2023 Judgment Rendered: March 8, 2024 Dockets: 40095, 40447
Between:
His Majesty The King Appellant
and
Christopher James Kruk Respondent
- and -
Independent Criminal Defence Advocacy Society, Criminal Lawyers’ Association (Ontario) and Trial Lawyers Association of British Columbia Interveners
And Between:
His Majesty The King Appellant
and
Edwin Tsang Respondent
- and -
Attorney General of Alberta, Independent Criminal Defence Advocacy Society, Association québécoise des avocats et avocates de la défense, West Coast Legal Education and Action Fund Association, Women’s Legal Education and Action Fund Inc. and Trial Lawyers Association of British Columbia Interveners
Coram: Wagner C.J. and Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 127)
Martin J. (Wagner C.J. and Côté, Kasirer, Jamal and O’Bonsawin JJ.)
Concurring Reasons: (paras. 128 to 249)
Rowe J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
His Majesty The King Appellant
v.
Christopher James Kruk Respondent
and
Independent Criminal Defence Advocacy Society,
Criminal Lawyers’ Association (Ontario) and
Trial Lawyers Association of British Columbia Interveners
‑ and ‑
His Majesty The King Appellant
v.
Edwin Tsang Respondent
and
Attorney General of Alberta,
Independent Criminal Defence Advocacy Society,
Association québécoise des avocats et avocates de la défense,
West Coast Legal Education and Action Fund Association,
Women’s Legal Education and Action Fund Inc. and
Trial Lawyers Association of British Columbia Interveners
Indexed as: R. v. Kruk
2024 SCC 7
File Nos.: 40095, 40447.
2023: May 18; 2024: March 8.
Present: Wagner C.J. and Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
on appeal from the court of appeal for british columbia
Criminal law — Appeals — Standard for appellate intervention — Credibility and reliability assessment — Common-sense assumptions — Accused both convicted of sexual assault at trial — Court of Appeal finding that trial judges’ credibility and reliability assessments were based on common-sense assumptions not grounded in evidence — Court of Appeal overturning convictions on basis that trial judges erred in law by failing to abide by rule against ungrounded common-sense assumptions — Whether error of law based on rule against ungrounded common-sense assumptions should be recognized.
K and T were convicted of sexual assault in separate and unrelated matters. In both cases, the Court of Appeal overturned the convictions on the basis of alleged errors of law in the trial judges’ credibility and reliability assessments. Using the rule against ungrounded common‑sense assumptions, which originated in a series of appellate cases, the Court of Appeal found that the trial judges erred in law by making assumptions about human behaviour not grounded in the evidence. In K’s appeal, the court held that the trial judge’s conclusion that it was unlikely that a woman would be mistaken about the feeling of penile‑vaginal penetration relied on speculative reasoning and was not the proper subject of judicial notice. In T’s appeal, the court held that the trial judge had made three assumptions about human behaviour that had impacted her assessment of the evidence: (1) a person would not ask to be spanked while engaging in sexual foreplay out of the blue; (2) a controlling person would not refrain from engaging in vaginal intercourse because they could not find a condom; and (3) a person would not abruptly and unceremoniously drive away from the person with whom they had engaged in consensual sex. The court found that these generalizations were not based in the evidence and engaged in speculative reasoning, and that these errors were material. New trials were ordered for K and T.
Held: The appeals should be allowed and the convictions restored.
Per Wagner C.J. and Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.: The rule against ungrounded common‑sense assumptions should not be recognized as giving rise to an error of law. Such an error of law would represent a radical departure from how appellate courts have typically approached credibility and reliability assessments, especially in the context of sexual assault. The proposed 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. The faulty use of common‑sense assumptions in criminal trials should 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. In the instant cases, assessing the trial judges’ credibility and reliability findings using the proper standard of palpable and overriding error, no such errors were made.
First, the proposed rule against ungrounded common‑sense assumptions is not a logical extension of the prohibition against myths and stereotypes about sexual assault complainants. It reflects a misunderstanding of the distinct body of law associated with myths and stereotypes in sexual assault cases, which has a unique history and a specific remedial purpose: to remove discriminatory legal rules that contributed to the view that women, as a group, were less worthy of belief and did not deserve legal protection against sexual violence. Several myths and stereotypes have been jurisprudentially condemned as errors of law and significant legislative changes were made with a view to protecting the rights of women and children given their particular vulnerability to sexual violence. This history puts into perspective the distinct reasons why relying on myths and stereotypes to discredit sexual assault complainants amounts to an error of law, as opposed to being an ordinary factual finding reviewable for palpable and overriding error. Conversely, the proposed rule does not relate to specific, identified, erroneous generalizations about a specific category of witness, nor does it protect elements of an offence from taking on a distorted meaning. It instead lumps together the sorts of pernicious, discriminatory stereotypes that both the courts and Parliament have worked to condemn and correct with more benign generalizations that, while they may be factually wrong, have nothing to do with inequality of treatment.
The rule would also drastically expand the scope of permissible questioning into a complainant’s sexual history, effectively requiring both parties to apply to adduce other sexual activity evidence that may not otherwise be relevant or permitted, opening a back door to prohibited twin‑myth reasoning. Although framed in terms of ensuring equal treatment for the accused, this approach in fact risks resurrecting the very prejudice against sexual assault complainants that the law on myths and stereotypes was designed to eliminate. Recognizing an identical rule mirroring the treatment of myths and stereotypes between complainants and accused is not necessary and would be misguided. The accused’s rights remain safeguarded by crucial legal protections explicitly designed to ensure fairness to the accused that find their source in their own robust body of law flowing from principles such as the presumption of innocence, the right to silence, and reasonable doubt. Such protections ensure fairness to the accused and must guide trial judges in assessing testimony.
Furthermore, the proposed rule is counterproductive to proper testimonial assessment and incompatible with the often inextricable role common‑sense assumptions play in credibility and reliability assessments. By prohibiting ungrounded common‑sense assumptions, the rule interferes with the necessary recourse to common sense as a part of testimonial analysis. 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). The rule invites appellate courts to substitute their opinions about what generalizations are appropriate or instructive for those of trial judges, improperly transforming their strong opposition to a trial judge’s factual inferences into supposed legal errors, thus creating uncertainty and unfairness on appeal.
The rule also runs contrary to established standards of review and would unduly increase the scope of appellate intervention into the credibility and reliability assessments of trial judges. These assessments can be the most important and difficult judicial determinations in a criminal trial, especially in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. Although credibility and reliability findings may be overturned on correctness if errors of law are disclosed, in most cases it is preferable to review them using the nuanced and holistic standard of palpable and overriding error — which defers to the conclusions of trial judges who have had direct exposure to the witnesses themselves and have expertise in assessing and weighing the facts. The reasons for the deference accorded to a trial judge’s factual and credibility findings include: (1) limiting the cost, number, and length of appeals; (2) promoting the autonomy and integrity of trial proceedings; and (3) recognizing the expertise and advantageous position of the trial judge. Appellate courts are comparatively ill‑suited to credibility and reliability assessment, being restricted to reviewing written transcripts of testimony and often focusing narrowly on particular issues as opposed to seeing the case and the evidence as a whole. Invoking the proposed rule, appellate courts have been invited to parse trial reasons, attack generic statements made in the course of credibility assessments, and frame any credibility findings based on human behaviour as impermissible stereotype or common‑sense assumptions untethered to evidence. The jurisprudence in this area is variable, even volatile, and evinces the need for a more consistent approach to appellate review.
In view of the rejection of the proposed rule, appellate courts should continue to rely on the existing and well‑established law on assessing a trial judge’s credibility or reliability assessments. First, where an appellant alleges that a trial judge erroneously relied on a common‑sense assumption in their testimonial assessment, the reviewing court should consider whether what is being impugned is, in fact, an assumption. What might appear to be an assumption may actually be a judge’s particular finding about the witness based on the evidence. Second, if the trial judge did 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. The standard of review will be correctness if the error alleged is a recognized error of law, such as reliance on myths and stereotypes about sexual assault complainants, or improper and incorrect assumptions about accused persons contrary to fundamental principles such as the right to silence and the presumption of innocence. Stereotypes based in other forms of inequality of treatment that are analogous to myths and stereotypes about sexual assault complainants may also be recognized as errors of law in future cases. Testimonial assessments may also become vulnerable to correctness review for reasonable apprehension of bias, making a finding of fact for which there is no evidence, and improperly taking judicial notice.
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, such as 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. Once a palpable error has been identified, the reviewing court must also find that the erroneous reliance on the assumption was overriding, where it has affected the result or goes to the very core of the outcome of the case. 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.
In K and T’s cases, the Court of Appeal erred in using the rule against ungrounded common‑sense assumptions and reviewing the alleged improper generalizations on a correctness standard. The trial decisions in both cases should have been reviewed for palpable and overriding error. In K’s case, the Court of Appeal erred in concluding that the trial judge relied on speculative reasoning in accepting the complainant’s evidence based on his observation that it is extremely unlikely that a woman would be mistaken about the feeling of penile‑vaginal penetration. Viewing the reasons as a whole and in context, the trial judge did not reject the defence theory because of an assumption that no woman would be mistaken, but rather because he accepted the complainant’s testimony that she, herself, was not mistaken. The trial judge’s conclusion was grounded in his assessment of the complainant’s testimony and no palpable and overriding errors were made. In T’s case, the Court of Appeal erred in concluding that the trial judge’s assessment of the accused and the complainant’s credibility was fatally affected by three material unfounded assumptions about normal behaviour. The first two assumptions were not assumptions but statements that reflected the trial judge’s reasoning process and findings of fact. The third assumption was truly an assumption and one that was palpably incorrect. However, it was not overriding, as it did not affect the core of the trial judge’s finding of guilt.
Per Rowe J.: Generalized expectations based on common sense and human experience play a necessary role in the judicial fact‑finding process; however, reliance on generalized expectations in a criminal proceeding is not without limits, as some expectations may not be accurate or reliable predictors of general human behaviour. The proliferation of appellate jurisprudence identifying concerns about the limits of this exercise points to the need for guidance in the form of a clear and consistent framework for appellate review. This framework is composed of three questions that an appellate court should ask when reviewing for potential legal error in a trial judge’s reliance on generalized expectations in the fact‑finding process: (1) Did the trial judge rely on a generalized expectation in their reasoning process? (2) If the trial judge relied on a generalized expectation, was the expectation reasonable? (3) Did the trial judge rely on a generalized expectation as itself a conclusive and indisputable fact?
The first question asks whether the trial judge relied on a generalized expectation in their reasoning process. If the appellate court determines that the judge relied on a generalized expectation, the analysis will proceed to the second question. Where a judge has not relied on any generalized expectation, for example where the judge assessed the evidence with reference to other accepted evidence or facts from the trial, the review for potential error under the framework ends. At this stage of the analysis, the appellate court is not identifying any error. It is not an error of law per se for a judge to rely on a generalized expectation as a logical benchmark to assess the evidence; rather, it is a well‑recognized and necessary part of the judicial fact‑finding process. In answering this first question, the appellate court is simply determining what the trial judge really decided, why the judge decided that way, and whether there is a basis for further scrutiny. This is a highly case‑dependent inquiry — an appellate court must assess whether the reasons, read as a whole and in context of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. Appellate courts must not finely parse the trial judge’s reasons in search for error.
If the trial judge relied on a generalized expectation, the second question then asks whether the expectation was reasonable. It is an error of law for a judge to rely on an unreasonable generalized expectation to assess the evidence. Unreasonable generalized expectations masquerading as common sense or collective human experience are not a legitimate basis on which to assess and understand the evidence in a criminal trial. A standard of reasonableness imparts a measure of objectivity and community consensus in shaping the boundaries of a judge’s reliance on common sense and human experience to make decisions, ensuring that triers of fact do not rely on generalized expectations that are inaccurate or unreliable. It also recognizes that as society evolves, its understanding of what is reasonable may change. Public confidence in the administration of justice and the judicial fact‑finding process require that appellate courts be able to intervene where trial judges employ generalized expectations that are not a reasonably accurate reflection of what is true in most circumstances and are not a reliable benchmark to assess the evidence. However, where a trial judge relies on a reasonable generalized expectation, an appellate court may not interfere with the judge’s assessment of the evidence based on that expectation just because it would have come to a different conclusion.
Appellate review for legal error should extend to the reasonableness of any generalized expectation relied on by the trial judge. The categories of generalized expectations that may not, as a matter of law, be relied on should not be limited to what might be considered myths or stereotypes or to the context of sexual assault trials. Such a narrow approach creates artificial distinctions in the law, unduly limits the important role of appellate courts in the criminal justice system, and risks undermining public confidence in the administration of justice. On a conceptual level, the underlying rationale for reliance on a generalized expectation is the same, regardless of whether the generalized expectation can be considered a myth, a stereotype, or something else. There is no principled basis to separate particular categories of generalized expectations for distinct treatment. Such an exercise invites artificial distinctions in the law with no clear boundaries and fails to account for generalized expectations that cannot accurately be classified as myths or stereotypes about complainants in sexual assault cases yet would nonetheless be unacceptable to rely on in a criminal trial.
All reliance on unreasonable generalized expectations should be recognized as an error or law. Support for this is found in the relevant policy reasons for why appellate courts defer to trial judges’ factual findings on one hand, and the wide discretion for appellate intervention on questions of law on the other hand. Appellate courts defer to trial judges on factual matters for at least three overarching policy reasons: (1) to limit the number, length, and cost of appeals; (2) to promote the autonomy and integrity of trial proceedings; and (3) to recognize the expertise of the trial judge and the judge’s advantageous position to assess the evidence. Reviewing unreasonable expectations on a standard of correctness would have a limited impact on those policy considerations. Concerns about preserving public resources or promoting the autonomy and integrity of trials are secondary to the rights of the accused in a criminal proceeding, in light of the interests at stake and Parliament’s decision to provide broad access to a first level of appeal. It is the recognition of the trial judge’s expertise and advantageous position that forms the central basis for appellate deference on factual matters in the context of criminal proceedings; however, trial judges are not more experienced or in a more advantageous position than appellate judges in identifying a reasonable generalized expectation based on common sense or human experience, as the basis for the general reliability of such expectations is that they are common or the shared experience of the entire community.
The primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. They therefore maintain a broad scope of review on questions of law, which require clear and consistent answers in order to maintain public confidence in the administration of justice. Any approach to appellate review that dilutes the important role of appellate courts would do significant damage to the criminal justice system. The characterization of an issue as a question of law is also significant to the grounds for appellate jurisdiction in criminal matters, especially the limited grounds for Crown appeals from acquittals. If the reasonableness of a generalized expectation were treated as a question of fact, then the Crown would not be able to appeal from acquittals that rest on generalized expectations that do not amount to myths or stereotypes, no matter how unreasonable or contrary to society’s collective expectations. The need to preserve public confidence in the administration of justice mandates that verdicts in criminal cases not be founded on assumptions that are not reasonably accurate reflections of what is true in most circumstances. The correctness standard requires setting out expressly an alternative line of reasoning and demonstrating why it should be followed. Properly applied, correctness demands greater conceptual clarity and analytical rigour. By contrast, the palpable and overriding standard of review can be misused to generate a decision‑making black box that facilitates ad hoc decision‑making, whereby if the Court of Appeal agrees with what the trial judge has done, it shows deference, but if it prefers another outcome, it labels the trial judge’s decision as a palpable and overriding error and substitutes its preferred outcome.
Finally, the third question asks whether the judge relied on a generalized expectation as itself a conclusive and indisputable fact. Trial judges have considerable latitude to rely on reasonable general expectations as a logical benchmark in assessing the evidence, and an appellate court may not interfere with the judge’s assessment of the evidence just because it would have come to a different conclusion. However, there is an important limit on the use of even a reasonable generalized expectation: the trial judge cannot treat the generalized expectation as itself a conclusive and indisputable fact, such that the judge ignores or forecloses their mind to the evidence. This is because people may always act contrary to a generalized expectation of what common sense or human experience would ordinarily anticipate, and therefore it is the trial judge’s duty to determine on the evidence what really happened. Generalized expectations based on human experience and common sense are only one consideration, which assist with interpreting the evidence, but the focus must remain on the evidence. It is an error of law for a judge to fail to consider all of the evidence on the ultimate issue of guilt or innocence, or to make a factual conclusion in the absence of evidence. Where a judge relies on a generalized expectation as itself a factual conclusion, what the judge is really doing is taking judicial notice, which is subject to a stringent test — a standard that will rarely, if ever, be met by a generalized expectation about people due to the variability of human experience and behaviour. And where a factual conclusion is based neither on the evidence, nor on judicial notice, then it is speculation, which is an error of law.
Applying these principles to the cases at hand, the appeals should be allowed and the convictions restored. In K’s case, under the framework’s first question, the trial judge relied on a generalized expectation about the likelihood of a woman being mistaken about the feeling of vaginal penetration. Under the framework’s second question, it is a reasonable generalized expectation about general human perception that a woman is unlikely to be mistaken about the feeling of vaginal penetration, as a sexual act of this nature would have a profound and traumatic impact on the bodily integrity of an individual, and ordinary people would not generally require special knowledge to assess this sort of evidence. Under the framework’s third question, the trial judge did not treat this as an indisputable fact but instead used it as a benchmark to assess the complainant’s evidence in light of the totality of the evidence. There was therefore no basis for the Court of Appeal to intervene.
In T’s case, the Court of Appeal wrongly identified the trial judge as having relied on a generalized expectation regarding the first two assumptions, where the latter was actually assessing the whole of the evidence; this led the Court of Appeal to move beyond its role and reweigh the evidence. In respect of the third assumption, the trial judge did err by relying on an unreasonable expectation about how people ordinarily behave after a consensual sexual encounter. Under the framework’s second question, it is unreasonable to expect any logical connection between an individual waiting for their sexual partner to enter a home and the consensual or non‑consensual nature of the preceding encounter. Nevertheless, this error of law was so harmless or minor that it could not have had any impact on the verdict, because the judge’s verdict clearly turned on her favourable assessment of the complainant’s credibility, as well as her complete rejection of T’s testimony as inconsistent with the events and contrived to explain away the complainant’s injuries.
Cases Cited
By Martin J.
Overruled: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107; R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289; R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286; R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433; referred to: R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639; R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Mills, [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; R. v. A. (A.B.), 2019 ONCA 124, 145 O.R. (3d) 634; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. C.M.M., 2020 BCCA 56; R. v. Kodwat, 2017 YKCA 11; R. v. Thompson, 2019 BCCA 1, 370 C.C.C. (3d) 354; R. v. T.L., 2020 NUCA 10, 393 C.C.C. (3d) 195; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; Kribs v. The Queen, [1960] S.C.R. 400; Timm v. The Queen, [1981] 2 S.C.R. 315; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439; R. v. McCraw, [1991] 3 S.C.R. 72; R. v. Esau, [1997] 2 S.C.R. 777; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Kirkpatrick, 2022 SCC 33; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. M. (M.L.), [1994] 2 S.C.R. 3; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. G. (C.M.), 2016 ABQB 368, 41 Alta. L.R. (6th) 374; R. v. F. (W.J.), [1999] 3 S.C.R. 569; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Noble, [1997] 1 S.C.R. 874; R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152; R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146; R. v. S. (W.D.), [1994] 3 S.C.R. 521; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; R. v. Esquivel‑Benitez, 2020 ONCA 160, 61 C.R. (7th) 326; Wild v. The Queen, [1971] S.C.R. 101; Rousseau v. The Queen, [1985] 2 S.C.R. 38; R. v. B. (G.), [1990] 2 S.C.R. 57; R. v. Clark, 2015 BCCA 488, 407 D.L.R. (4th) 610, aff’d 2017 SCC 3, [2017] 1 S.C.R. 86; R. v. Drydgen, 2021 BCCA 125; R. v. Petrolo, 2021 ONCA 498, 156 O.R. (3d) 321; J.P. v. R., 2022 QCCA 104; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Munoz (2006), 86 O.R. (3d) 134; R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780; R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293; R. v. S. (R.D.), [1997] 3 S.C.R. 484; R. v. Kiss, 2018 ONCA 184; R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187; R. v. Kontzamanis, 2011 BCCA 184; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; Maxwell v. The Queen, [1979] 2 S.C.R. 1072; R. v. Norman (1993), 16 O.R. (3d) 295; Faryna v. Chorny, [1952] 2 D.L.R. 354; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362; R. v. Pelletier (1995), 165 A.R. 138; R. v. Virk, 2015 BCSC 981; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; Schwartz v. Canada, [1996] 1 S.C.R. 254; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405; R. v. Morrissey (1995), 22 O.R. (3d) 514; R. v. Pastro, 2021 BCCA 149, 71 C.R. (7th) 296; R. v. Greif, 2021 BCCA 187; R. v. Al‑Rawi, 2021 NSCA 86, 410 C.C.C. (3d) 385; R. v. K.B.W., 2022 SKCA 8; R. v. L.L., 2022 ONCA 50; R. v. Lapierre, 2022 NSCA 12; Kritik‑Langer v. R., 2022 QCCA 657; R. v. Kavanagh, 2022 BCCA 225; R. v. D.B., 2022 SKCA 76, 415 C.C.C. (3d) 455; R. v. S.A., 2022 ONCA 642; R. v. S.M., 2023 ONCA 417; South Yukon Forest Corp. v. Canada, 2012 FCA 165, 431 N.R. 286; Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352; Salomon v. Matte‑Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; Schuldt v. The Queen, [1985] 2 S.C.R. 592; R. v. Poperechny, 2020 MBCA 81, 396 C.C.C. (3d) 478; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433.
By Rowe J.
Overruled: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433; considered: R. v. Quartey, 2018 ABCA 12, 430 D.L.R. (4th) 381, aff’d 2018 SCC 59, [2018] 3 S.C.R. 687; R. v. L. (J.), 2018 ONCA 756, 143 O.R. (3d) 170; R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107; referred to: R. v. Kodwat, 2017 YKCA 11; R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. Kiss, 2018 ONCA 184; R. v. Paulos, 2018 ABCA 433, 79 Alta. L.R. (6th) 33; R. v. A. (A.B.), 2019 ONCA 124, 145 O.R. (3d) 634; R. v. F.B.P., 2019 ONCA 157; R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286; R. v. Pilkington, 2019 BCCA 374; R. v. Percy, 2020 NSCA 11, 61 C.R. (7th) 7; R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780; R. v. Pastro, 2021 BCCA 149, 71 C.R. (7th) 296; R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. François, [1994] 2 S.C.R. 827; R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149; R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597; R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578; Lampard v. The Queen, [1969] S.C.R. 373; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; Graat v. The Queen, [1982] 2 S.C.R. 819; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Morrissey (1995), 22 O.R. (3d) 514; Canadian Pacific Railway Co. v. Murray, [1932] S.C.R. 112; R. v. Béland, [1987] 2 S.C.R. 398; R. v. S. (R.D.), [1997] 3 S.C.R. 484; R. v. Marquard, [1993] 4 S.C.R. 223; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. O’Brien, [1978] 1 S.C.R. 591; R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Samaniego, 2022 SCC 9; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. J.C., 2018 ONSC 5547; Schuldt v. The Queen, [1985] 2 S.C.R. 592; R. v. Morin, [1992] 3 S.C.R. 286; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245.
Statutes and Regulations Cited
Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125, ss. 5, 19.
Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38, preamble.
Canadian Charter of Rights and Freedoms , s. 11(c) , (d).
Criminal Code , R.S.C. 1985, c. C‑46, ss. 273.1(1) “consent”, (2), 273.2, 274, 275, 276, 278.1 to 278.91, 686(1)(a), (b)(iii).
Criminal Code, S.C. 1953‑54, c. 51, s. 131(1).
Authors Cited
Benedet, Janine. “Judicial Misconduct in the Sexual Assault Trial” (2019), 52 U.B.C. L. Rev. 1.
Benedet, Janine, and Isabel Grant. “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues” (2007), 52 McGill L.J. 515.
Cochran, Patricia. Common Sense and Legal Judgment: Community Knowledge, Political Power, and Rhetorical Practice. Montréal: McGill‑Queen’s University Press, 2017.
Coughlan, Steve. Criminal Procedure, 4th ed. Toronto: Irwin Law, 2020.
Dufraimont, Lisa. “Current Complications in the Law on Myths and Stereotypes” (2021), 99 Can. Bar Rev. 536.
Dufraimont, Lisa. “Myth, Inference and Evidence in Sexual Assault Trials” (2019), 44 Queen’s L.J. 316.
Ehrlich, Susan. “Perpetuating — and Resisting — Rape Myths in Trial Discourse”, in Elizabeth A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women’s Activism. Ottawa: University of Ottawa Press, 2012, 389.
Hill, S. Casey, David M. Tanovich and Louis P. Strezos. McWilliams’ Canadian Criminal Evidence, 5th ed. Toronto: Thomson Reuters, 2013 (loose‑leaf updated December 2023, release 5).
Oxford English Dictionary (online: www.oed.com), “myth”.
Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.
Koshan, Jennifer. “Marriage and Advance Consent to Sex: A Feminist Judgment in R v JA” (2016), 6 Oñati Socio‑legal Series 1377.
Lederman, Sidney N., Michelle K. Fuerst and Hamish C. Stewart. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. Toronto: LexisNexis, 2022.
Randall, Melanie. “Sexual Assault Law, Credibility, and ‘Ideal Victims’: Consent, Resistance, and Victim Blaming” (2010), 22 C.J.W.L. 397.
Tanovich, David M. “Regulating Inductive Reasoning in Sexual Assault Cases”, in Benjamin L. Berger, Emma Cunliffe and James Stribopoulos, eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg. Toronto: Thomson Reuters, 2017, 73.
Watt, David. Watt’s Manual of Criminal Evidence. Toronto: Thomson Reuters, 2023.
APPEAL from a judgment of the British Columbia Court of Appeal (Tysoe, Stromberg‑Stein and Marchand JJ.A.), 2022 BCCA 18, [2022] B.C.J. No. 90 (Lexis), 2022 CarswellBC 102 (WL), setting aside the conviction entered by Tammen J., 2020 BCSC 1480, [2020] B.C.J. No. 2418 (Lexis), 2020 CarswellBC 3779 (WL), and ordering a new trial. Appeal allowed.
APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Willcock and Voith JJ.A.), 2022 BCCA 345, 419 C.C.C. (3d) 187, 84 C.R. (7th) 314, [2022] B.C.J. No. 1943 (Lexis), 2022 CarswellBC 2858 (WL), setting aside the conviction entered by Phillips Prov. Ct. J., 2020 BCPC 306, [2020] B.C.J. No. 2446 (Lexis), 2020 CarswellBC 3826 (WL), and ordering a new trial. Appeal allowed.
Susanne Elliott, Christie Lusk and Lauren Chu, for the appellant.
Brent R. Anderson and Christopher Johnson, K.C., for the respondent Christopher James Kruk.
Richard S. Fowler, K.C., and Eric Purtzki, for the respondent Edwin Tsang.
Sarah Clive, for the intervener the Attorney General of Alberta.
Gregory P. DelBigio, K.C., and Daniel J. Song, K.C., for the intervener the Independent Criminal Defence Advocacy Society.
Breana Vandebeek, for the intervener the Criminal Lawyers’ Association (Ontario).
Mark Iyengar and Benjamin Reedijk, for the intervener the Trial Lawyers Association of British Columbia.
Hugo Caissy and Myralie Roussin, for the intervener Association québécoise des avocats et avocates de la défense.
Megan Stephens, Humera Jabir and Roxana Parsa, for the interveners the West Coast Legal Education and Action Fund Association and the Women’s Legal Education and Action Fund Inc.
The judgment of Wagner C.J. and Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ. was delivered by
Martin J. —
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 t