Appeal Court offers roadmap for dealing with stereotypical reasoning

By John L. Hill

Law360 Canada (September 20, 2023, 2:02 PM EDT) --
John Hill
John L. Hill
A review of many Court of Appeal decisions in sexual assault cases recently shows a surprising similarity in the grounds advanced for appeal. These oft-repeated grounds include (1) a reliance by the judge on myths and stereotypes in assessing the credibility of an appellant’s evidence, (2) improper assessment of reasonable doubt due to uneven scrutiny of the witnesses’ evidence; and (3) ineffective assistance of counsel.

Brent William Diehl was convicted of sexual assault with a weapon in January 2022. He appealed. The Ontario Court of Appeal rendered its decision on Sept. 14 (R. v. Diehl 2023 ONCA 596). He represented himself before the appellate court. Not surprisingly, he listed his grounds of appeal as listed above, although he abandoned ineffective assistance of counsel as a third ground for his perceived wrongful conviction.

The facts of the case do not allow one to classify it as a “he said/she said” case.” The complainant admits that for much of the time she spent with the appellant, the sexual activity was consensual. She objected when the intimacy turned violent. She was bruised and later sought medical assistance. She was sober throughout the experience and had a nurse who had treated her give evidence at trial that her injuries were consistent with an assault. She took photos of her injuries and was visibly upset when the complaint was made to police.

According to the appellant, his session with the complainant was consensual. However, the complainant became upset when Diehl could not perform to the complainant’s satisfaction. She left him and administered cuts and bruising to herself to substantiate her allegations to the police.

The Court of Appeal took 16 paragraphs to dismiss the appeal. However, it used those paragraphs to ensure that litigants who use these traditional grounds know the care the Appeal Court expects when they are raised. The Appeal Court laid out a roadmap for arguing these grounds.

When stereotypical reasoning is alleged, the court will look to the evidence as a whole and rely on “logic, common sense, and experience” in making credibility assessments (R. v. Calnen 2019 SCC 6 and a number of similar decisions). However, a court must avoid speculative reasoning that invokes common sense assumptions not grounded in evidence (R. v. Roth 2020 BCCA 240).

Even though uneven scrutiny is difficult to prove (R. v. G.F. 2021 SCC 20), it is necessary that the appellant identify specifics in the trial judge’s reasons or the record at trial to show that a different standard of scrutiny was applied in adjudicating some significant evidence at trial.

In this case, the rejection of Diehl’s evidence conformed with the principles set out in R. v. W. (D.)  [1991]1 S.C.R. 742. The unanimous three-judge panel of the Appeal Court agreed with the trial judge that the complainant’s evidence was credible but that Diehl’s testimony lacked believability and defied common sense.

The Court of Appeal concluded the decision by saying, “In sum, the trial judge articulated the correct test, he conducted a careful scrutiny of the evidence, and his assessment of the evidence was neither uneven nor based on myths and stereotypes.”

Diehl, in arguing his case before the panel, likely thought he was using all the right words in attacking the reasons for judgment set out by the trial judge. However, he could not do so when it came time to place evidential meat on the bones of the argument he was advancing.

People who follow such cases will not be surprised by the outcome. Even though the reasons enunciated by the Appeal Court were brief, there was an expenditure of precious court time and resources that could have been avoided if prospective appellants like Diehl had been able to be advised what legitimate arguments could be advanced in his situation or even advise him that he should not waste his time pursuing a lost cause.

With the cutbacks to legal aid in Ontario, it is unlikely that sort of intervention will become available. We will continue to see unrepresented appellants using all the right words but being unable to satisfy the evidential requirement to substantiate the grounds they advance.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at

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