R. v D.R, 2022 NLCA 2
[17] Stereotypical reasoning in sexual assault cases is well known to the law. It generally rests on assumptions or preconceived notions about how victims of sexual assault are expected to act. Reliance on stereotypes about how victims of sexual assault are expected to act in the assessment of a complainant’s credibility is an error of law (R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2).
[18] In R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 (S.C.C.), L’Heureux-Dubé J., in her concurring decision, discussed stereotypes or myths that arise in sexual assault cases respecting how victims of sexual abuse are expected to behave or react to abuse. Justice L’Heureux-Dubé explained that reasoning based on stereotypes or myths negatively impacts the truth-seeking function of the courts, and added that such stereotypes are often simply illogical or untrue (Seaboyer, at 693).
[19] The negative impact of stereotypical reasoning was further addressed by the Supreme Court of Canada in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 (S.C.C.), wherein McLachlin and Iacobucci JJ. said:
[119] As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims and classes of records have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences…
[20] L’Heureux-Dubé J. again addressed reasoning based on stereotypes in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 (S.C.C.). In concurring with the majority to allow the Crown’s appeal, she analyzed the lower courts’ reasoning that women who engaged in prior sexual activity were less worthy of belief or more likely to have consented to the sexual activity in issue than women who had not engaged in prior sexual activity, described the assumptions behind the reasoning, now known as the twin myths, as stereotypes, and declared reasoning based on them to be impermissible.
[21] The Supreme Court of Canada considered assumptions about how victims of sexual assault react in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. In D.D., the trial judge acquitted a stepfather of sexually abusing his 15-year- old stepdaughter because of her delay in disclosing the abuse. The judge reasoned that the delay suggested that the abuse did not occur. In debunking the stereotype that delayed disclosure of sexual abuse suggests that it did not occur, Major J. stated that a complainant’s failure to exhibit avoidant behavior or make timely complaint “must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse” (para. 63). Justice Major explained that people react differently to trauma, saying:
[65] A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. …
[22] In R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, the Supreme Court of Canada considered whether jurors would be able to be impartial in a case involving an accused charged with multiple sexual offences against children. In deciding that the offences charged did not give rise to a strain of bias capable of eluding the cleansing effect of trial safeguards (Find, at para. 107), the Court addressed the negative effects of myths and stereotypes that pervade public perceptions of sexual assault, noting that some favour the accused and others favour the Crown. In referencing myths and stereotypes involving the actions of complainants, McLachlin C.J.C. said:
[103] These myths and stereotypes about child and adult complainants are particularly invidious because they comprise part of the fabric of social “common sense” in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors.
[23] More recently, stereotypical reasoning was the issue on appeal in R. v. A.R.D., 2017 ABCA 237, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. The stereotype in play was the notion that a complainant would display avoidant behavior or react negatively in the presence of her abuser if she had truly been abused. The complainant alleged that she had been sexually abused by her stepfather. She testified that she did not react negatively around him in the presence of others because she was embarrassed and “didn’t really want anyone to know about it” (A.R.D., at para. 16). In assessing the complainant’s credibility the trial judge stated his expectation that “a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change of behavior such as avoiding the perpetrator” (A.R.D., at para. 4), and because there was no evidence of the complainant exhibiting avoidant behavior, the judge found that the relationship between the complainant and her stepfather was normal and therefore inconsistent with the complainant’s evidence that she had been abused. He acquitted the stepfather on that basis.
[24] The Alberta Court of Appeal allowed the Crown’s appeal, ruling that:
[47] There is no juridical foundation upon which a trial judge could correctly conclude that, as a matter of sound legal principle, child sexual assault survivors will demonstrate avoidant behavior in relation to their sexual assault perpetrators…
And went on to explain that:
[58] …absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt – because we know that all sexual assault victims behave differently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behavior for any number of reasons. This record speaks to those reasons – the complainant resided in the home of the alleged perpetrator and in her words, it “changes everything…[w]hen people know”. While it might appear logical to suggest that a victim of sexual assault will choose to run away or distance themselves from an assailant, relying on failure to do so, particularly when dealing with a child complainant, is simply incorrect.
The Court reiterated Justice Major’s words from D.D. that “there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave” and that a complainant’s failure to exhibit avoidant behavior or to make a timely complaint “must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse” (D.D., at paras. 65 and 63, respectively).
[25] The appellate Court’s decision was affirmed by the Supreme Court of Canada, which ruled that the trial judge had erred by judging “the complainant’s credibility based solely on the correspondence between her behavior and the expected behavior of the stereotypical victim of sexual assault” (A.R.J.D., at para. 2).
[26] The Ontario Court of Appeal addressed stereotypical reasoning in R. v. Lacombe, 2019 ONCA 938. In Lacombe, the trial judge had acquitted the defendant of sexual assault, reasoning that the complainant’s dress, her absence of immediate reporting, and her overall conduct was not what he would expect (paras. 36-45). He did this without giving any consideration to the complainant’s evidence of her fear of the defendant (paras. 43-45).
[27] The Crown’s appeal to the Summary Conviction Appeal Court was dismissed, but its appeal of the Summary Conviction Appeal Court’s decision to the Ontario Court of Appeal was allowed, and a new trial was ordered. The Court of Appeal ruled that the stereotypes relied on by the judge were anchored in assumptions that failed to reveal anything about the complainant’s credibility and reliability. The Court rejected the trial judge’s professed reliance on common sense and life experience to justify his findings, saying:
[52] The trial judge’s ultimate reliance on “common sense and life experiences” [to justify his stereotypical reasoning] did not cleanse his assessment as his common-sense inferences reflected stereotypical sexual and myth-based reasoning. They infected his consideration of the complainant’s evidence and his assessment of reasonable doubt. His conclusions were the product of legally flawed reasoning. Again, “reasonable doubt is not a shield for appellate review if that doubt is informed by stereotypical and therefore prejudicial reasoning”: A.R.D., at para. 9.
[28] Professor Janine Benedet from the Allard School of Law, University of British Columbia wrote a case comment on Lacombe, found at 2019 Carswell-Ont 19397. The following words from Professor Benedet’s comment are worth repeating:
The conclusion that genuine victims always attempt to avoid all further contact with their abusers is not accurate. The reality is more complex and varied than this blanket “common sense” statement would admit. It can take some time for a person who has been victimized to understand what has happened to them and admit it to themselves.
[29] The Ontario Court of Appeal also ordered a new trial in R. v. L.M., 2019 ONCA 945, where the trial judge had relied on the teenage complainant’s interest in and knowledge of sexual matters in assessing her credibility (the alleged assault took place when the complainant was 11 years old and she was 15 when she testified at trial). The appellate court was critical of the judge’s reliance on his assumption that the complainant’s interest and knowledge of sexual matters (four years after the offence) made her less worthy of belief.
[30] The Ontario Court of Appeal again addressed stereotypical reasoning in R. v. Steele, 2021 ONCA 186. In Steele, the trial judge assessed the complainant’s credibility according to his expectations of how she should have reacted to a telephone call she received from her father in the course of the assault. The judge said that her response to her father was “not the response of someone who had just been sexually assaulted and has been kept in the trailer against her wishes” (para. 11). The appellate court found this reasoning stereotypical, and that it, along with another instance of stereotypical reasoning, had materially affected the judge’s acquittal of the accused. A new trial was ordered.
[31] In summary, stereotypical reasoning in judicial decision-making rests on preconceived notions, assumptions or expectations, in other words, stereotypes or myths, about how people behave or ought to behave in given situations. The stereotype is essentially used as a standard against which a complainant’s behavior is measured and judged, and if the behavior does not conform to the stereotype, the complainant’s evidence can then be regarded as suspect, incredible, unreliable, or cause for reasonable doubt.
[32] Many factors influence how judges and courts reach their conclusions. Fundamental to our judicial system is that decisions in any given case are to be made by applying the relevant law to the admissible relevant evidence. When judges and courts measure or judge a complainant’s actions or inactions in relation to a stereotype in the course of a credibility analysis, they are measuring or judging a complainant’s behaviour against their preconceived assumptions about human behavior based on speculation (Mills, at para. 119). These preconceived assumptions may be simply untrue (Seaboyer, at 693), or have no basis in fact or experience (D.D., at paras. 63-65). Moreover, such reasoning is often logically irrelevant to the matter at hand (A.R.D., at para. 58). Also, reliance on them in assessing a complainant’s credibility generally causes decision-makers to be diverted away from consideration of the actual evidence in the case (A.R.D., at para. 43, and L.M., at paras. 50-56).
[33] While judges and courts must be able to take a broad view of the evidence in their search for the truth in any given case, they must take care to ensure that the inferences they draw from the evidence are rooted in the evidence, and not in stereotypes or myths about how victims should or should not act. They must also make sure that their reasoning logically relates to the issues in the case. Professor Lisa Dufraiment explained these challenges in her article entitled “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s LJ 316, saying that judges and courts must remove reasoning based on myths and stereotypes from their adjudication of sexual assault cases while ensuring that all relevant evidence respecting an alleged sexual assault is able to be considered. This approach is consistent with Justice L’Hereaux-Dubé’s oft-quoted statement from Ewanchuk that “Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions” (para. 95).
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