R. v. KRUK, 2024 SCC 7, MARCH 8, 2024.
FACTS: The accused were convicted of the offence of sexual assault. Both convictions were set aside by the British Columbia Court of Appeal. The Crown was granted leave to appeal in both matters.
The Supreme Court of Canada indicated that “[t]hese 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” (at paragraph 1).
HELD: The appeals were allowed and the convictions reinstated. The Supreme Court rejected adopting the rule referred to as the “rule against ungrounded common-sense assumptions” as a “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” (at paragraph 1). It held that “credibility and reliability assessments — and any reliance on the common-sense assumptions inherent within them — will be reviewable only for palpable and overriding error” (at paragraph 3).
The Supreme Court noted that “[i]f a trial judge relies on myths or stereotypes about sexual assault complainants in their reasons, this amounts to an error of law… 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” (at paragraphs 29 and 30).
The Supreme Court pointed out that it “has repeatedly recognized the prevalence of myths and stereotypes about sexual assault complainants, some of which include the following”: (at paragraph 36):
• Genuine sexual assaults are perpetrated by strangers to the victim.
• False allegations of sexual assault based on ulterior motives are more common than false allegations of other offences.
• Real victims of sexual assault should have visible physical injuries.
• A complainant who said “no” did not necessarily mean “no”, and may have meant “yes”.
• If a complainant remained passive or failed to resist the accused’s advances, either physically or verbally by saying “no”, she must have consented — a myth that has historically distorted the definition of consent and rendered rape “the only crime that has required the victim to resist physically in order to establish nonconsent”.
• A sexually active woman (1) is more likely to have consented to the sexual activity that formed the subject matter of the charge, and (2) is less worthy of belief — otherwise known as the “twin myths”, which allowed for regular canvassing of the complainant’s prior sexual history at trial, regardless of relevance, thereby shifting the inquiry away from the alleged conduct of the accused and towards the perceived moral worth of the complainant.
Assessing Evidence:
The Supreme Court indicated that Testimonial assessment is largely based on inductive reasoning and the particular circumstances of the case: it requires the trier of fact to make assessments based on probable interpretations of the evidence..It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence…In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of ‘the way things can and do happen’; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or ‘inherently improbable’…Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as ‘hmm . . . let me see’, long pauses, or failure to provide much detail” (at paragraphs 71 to 73).
Conclusion:
R. v. Kruk (at paragraph 102):
In Mr. Kruk’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 that feeling [of having a penis inside her]” (trial reasons, at para. 68 (emphasis added)). In context, it is clear that the impugned statement, while perhaps unfortunately worded, was in fact not a generalization at all, but a specific articulation of the judge’s response to a theory advocated by the defence.
R. v. Tsang (at paragraph 110):
In Mr. Tsang’s case, the Court of Appeal erred in concluding that the judge’s assessment of the accused and the complainant’s credibility was fatally affected by three material unfounded assumptions about normal behaviour: a person would not ask to be spanked “out of the blue”; a controlling person would not refrain from engaging in vaginal intercourse because they could not find a condom; and a person would not abruptly drive away from someone with whom they had just had consensual sex. Again, these first two assumptions were, in fact, not assumptions but statements that reflected the trial judge’s reasoning process and findings of fact. The third assumption, though truly an assumption and one that was palpably incorrect, was not overriding, as it did not affect the core of the trial judge’s finding of guilt.
