Justice Sheila Martin’s April 8, 2024 judgment on behalf of six judges (Justice Malcolm Rowe wrote a separate concurrence) allows the B.C. Crown’s appeal from two B.C. Court of Appeal decisions that overturned unrelated sexual assault convictions on the basis that the trial judges in both cases erred in law by breaching a purported new “rule against ungrounded common-sense assumptions” that first emerged at Ontario’s appellate level in 2007 and which British Columbia’s appeal court has also applied when reviewing trial judges’ assessment of credibility and reliability, particularly in sexual assault trials: R. v. Kruk, 2024 SCC 7.
Supreme Court of Canada Justice Sheilah Martin
“The respondents ask this court to recognize a novel rule referred to as the ‘rule against ungrounded common-sense assumptions,’” Justice Martin said. “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,” Justice Martin wrote in her judgment, which expressly overrules a leading Ontario Court of Appeal judgment which applied the purported rule against ungrounded common-sense assumptions in a sexual assault case: R. v. J.C., 2021 ONCA 131.
“No such change to the law is warranted, and I decline to recognize the rule against ungrounded common-sense assumptions as giving rise to an error of law,” Justice Martin held.
“The faulty use of common-sense assumptions in criminal trials will continue to be controlled by existing standards of review and rules of evidence,” she ruled. “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. This standard is better equipped to the task than the new error of law the respondents propose.”
Justice Martin stated that the current standards under which appellate courts review trial judgments “are well-designed, long-established, and promote the fair assessment of testimony.”
“There is no need to fashion a new rule of law against any assumption not supported by particular evidence in the record to strive for what existing rules already accomplish,” she wrote. “Furthermore, the proposed rule is not a coherent extension of existing errors of law pertaining to myths and stereotypes against sexual assault complainants. Adopting it would undercut the functional and flexible approach to appellate intervention and create mischief across the entire criminal law.”
The defence’s request that the Supreme Court adopt a rule against ungrounded common sense assumptions attracted interveners for and against the proposal.
In their joint factum, West Coast Legal Education and Action Fund Association and the Women’s Legal Education and Action Fund urged the top court to “put an end to the use of the rule as a standalone basis to review a trial judge’s credibility findings in sexual assault cases. The rule is too amorphous to be applied by appellate courts in a meaningful manner, is at odds with the deference owed to trial judges’ factual findings, and risks both undermining the dignity and equality rights of complainants and resurrecting twin myth reasoning.”
Applying the rule “has significant and concerning implications for the development of sexual assault law and for sexual assault complainants,” the legal groups argued. “This, in turn, could impede access to justice for sexual assault complainants, who are more likely to be women, girls, trans, and non-binary people, including those who experience intersecting axes of marginalization arising from their race, Indigeneity, sexual orientation, gender identity, disability status, and age.”
For its part, the Criminal Lawyers’ Association of Ontario (CLA) warned against wrongful convictions, arguing that “a review of recent jurisprudence demonstrates a growing trend regarding the use of speculative stereotype-based reasoning to convict an accused in sexual assault trials.” The CLA stated “a strict application of evidentiary rules” is required to protect the fact-finding process against the “recent trend in the use of improper judicial notice or speculation against persons charged with sexual offences.”
Megan Stephens, Megan Stephens Law
Had the court ruled the other way, “there was a very real concern that this would require incredibly invasive testimony on behalf of complainants about their past sexual preferences — in order to help ground a judge's findings about the complainant's testimony,” Stephens said. “It risked reviving twin myth reasoning, which has long been prohibited for good reason.”
Stephens said the Supreme Court’s decision “will help clarify for appellate judges that the deference owed to a trial judge's factual findings and credibility assessments do not vary depending on the nature of the offence. As Justice Martin makes clear in her ruling, there are significant procedural safeguards to protect against wrongful convictions already in place within our justice system. These include constitutional protections such as the presumption of innocence and the requirement of proof beyond a reasonable doubt.”
Richard Fowler, Fowler and Blok
“I find it very concerning that we've put so much faith in the reliability of trial judge's decisions,” he told Law360 Canada. “I think limiting the courts of appeals’ powers of review is potentially likely to risk failing to discover or reveal wrongful convictions. And I think we have to acknowledge that courts of appeal, including the Supreme Court of Canada historically, have not been good at detecting or revealing wrongful convictions.”
In Fowler’s view, “the best protection against wrongful convictions is provincial courts of appeal having the tools that they need to carefully scrutinize trial judge's decisions. And in my view, the courts of appeal develop these rules about unfounded common sense assumptions precisely because it was a tool they needed. . . to properly fulfill their responsibilities and jurisdiction under the Criminal Code.”
He added, “in my view the problem is that ‘palpable and overriding’ error. . . hasn't captured the concerns that the courts of appeal have, which is that trial judges’ reliance on their own common sense — which ‘common sense’, by the way, was relied upon generations ago to make negative findings about complainants' credibility. . . . has never been a particularly reliable benchmark for the assessment of something as difficult as credibility, and can often disguise one's own personal biases or one's own personal limited life experiences.”
He noted that judges are of a different generation than the young people before the court in many sexual assault prosecutions, “whose sexual experiences and sexual behavior is so vastly different from what it was a few generations ago, when meeting online was not available, when Tinder was not available and those kinds of things.”
Said Fowler, “I think it's clear from many of the cases where courts of appeal have intervened that oftentimes the reasons why a complainant is found credible, or principally, I should say, an accused is found not credible, is it's often founded in a trial judges own particular assessment of what somebody would have done in a particular set of circumstances as opposed to what actually happened in that particular set of circumstances. So people are being judged against personal standards, as opposed to the evidence itself being carefully scrutinized to determine whether there is in fact a reason to find somebody not credible. . . . And it may be that you can't make a conclusion about why somebody is credible or not credible, in which case, the presumption of innocence should prevail.”
Susanne Elliott, of the criminal appeals and special prosecutions branch of the B.C. Ministry of the Attorney General, who with Christie Lusk argued the companion appeals, was working on a case and could not comment by press time.
However, Damienne Darby, communications counsel with the B.C. prosecution service, told Law360 Canada “we are pleased with the decision as it has clarified a very confusing area of jurisprudence that had developed in recent years, the purported ‘rule against ungrounded common-sense assumptions’ in sexual assault cases, which in practice resulted in provincial appellate courts often overturning sexual assault convictions by essentially reweighing the facts. In its place the Supreme Court of Canada has endorsed the less interventionist, and much more traditional, means of reviewing a trial judge’s factual reasoning on appeal – the palpable and overriding error standard. In our view, Kruk has simplified the law while ensuring that reliable convictions are maintained on appeal.”
Greg DelBigio, Vancouver lawyer
DelBigio highlighted two concerns he sees arising from the top court's latest decision. “First, the Supreme Court of Canada has done nothing to make a very complicated area of law any less complicated."
"More importantly," he said the majority affirmed that: “common sense assumptions” inextricably guide credibility decisions; trial judges will naturally rely on “ungrounded assumptions about human behavior”; judges will rely on their “accumulated life experience”; and credibility and reliability assessments are "more of an art than a science."
“Through this,” DelBigio suggested, “it is inevitable that different judges may see things differently, that the outcome of a case might depend upon the judge, and that a conviction and resulting sentence of jail might be based upon ‘art’, ‘ungrounded assumptions’ and ‘common sense’, somehow understood.”
In the appeals before the Supreme Court, the B.C. Court of Appeal held that the trial judges erred in law by making assumptions about human behaviour not grounded in the evidence.
“Having rejected this new error of law, I would assess the trial judges’ findings using the proper standard of palpable and overriding error,” Justice Martin wrote. “I conclude that they made no such errors in their credibility and reliability findings. In the result, I would allow both appeals and restore the convictions.”
In ordering a new trial for the respondent Christopher Kruk, the B.C. Court of Appeal held that the trial judge erred legally by relying on speculative reasoning to conclude that it was unlikely that a woman would be mistaken about the feeling of penile‑vaginal penetration; moreover this was not the proper subject of judicial notice: R. v. Kruk, 2022 BCCA 18
In ordering a new trial for Tsang, the B.C. Court of Appeal below held that the trial judge erred in law by making material assumptions not based in the evidence about normal behaviour that affected her assessment of the credibility and reliability of evidence from the complainant and accused i.e. that: a person would not ask to be spanked while engaging in sexual foreplay out of the blue; a controlling person (i.e. the accused) would not refrain from engaging in vaginal intercourse because they could not find a condom; and a person would not abruptly and unceremoniously drive away from the person with whom they had engaged in consensual sex: R. v. Tsang, 2022 BCCA 345.
The Supreme Court gave two reasons why the proposed rule against ungrounded common-sense assumptions should not be recognized as giving rise to an error of law.
“First, in the sexual assault context, the rule disregards the distinct nature of myths and stereotypes about complainants, transforming all factual generalizations regardless of their nature into errors of law and imposing a false symmetry to the circumstances of accused persons,” Justice Martin explained.
In the ordinary course, credibility and reliability assessments are reviewable for palpable and overriding error and are otherwise entitled to deference. However, if a trial judge relies on myths or stereotypes about sexual assault complainants in their reasons, this amounts to an error of law, she noted.
“The proponents of the rule against ungrounded common-sense assumptions argue that if reliance on myths and stereotypes about complainants is an error of law, then all unfounded and speculative assumptions about all witnesses, including the accused, should be treated in the same manner," the judge said. "With respect, this impulse towards symmetry and formally identical treatment is unwarranted. It reflects a misunderstanding of the distinct body of law associated with myths and stereotypes in sexual assault cases, which developed in a particular historical context to protect complainants alone.”
Justice Martin said that although arguments in favour of the rule are 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.”
Second, Justice Martin reasoned, the proposed rule runs contrary to long-settled law on credibility and reliability assessments and existing standards of review, “leading to unprecedented and undesirable consequences.”
“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,” she explained. “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.”
Justice Martin said the rule 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,” she explained. “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.”
In his concurring reasons for allowing the Crown’s appeals and restoring the convictions at trial, Justice Rowe said “generalized expectations based on common sense and human experience play a necessary role in the judicial fact-finding process. They serve as a logical benchmark against which to compare the evidence for the purposes of drawing inferences from circumstantial evidence or assessing a witness’s credibility. However, intermediate appellate courts have increasingly identified concerns about the limits of this exercise.”
He went on to propose three questions that an appellate court should ask, as well as principles it should consider, when reviewing for potential legal error in a 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; and did the judge rely on a generalized expectation as itself a conclusive and indisputable fact?
Photo of Justice Sheilah Martin: SCC collection
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