R. v. E.D.J-C., 2024 ONCA 48, JANUARY 24, 2024

FACTS: The accused was convicted of the offences of sexual assault.  It involved a complainant with whom he worked. On appeal, he argued that the trial judge engaged in stereotypical thinking.

HELD: The appeal was allowed and a new trial ordered.  The Ontario Court of Appeal concluded that the “trial judge relied materially on stereotypical inferences in finding that the appellant’s evidence was not plausible, and in rejecting his exculpatory testimony on this basis” (at paragraph 2).

The Complaints:

The accused argued that there were two instances in which the trial judge resorted to stereotypical reasoning.  

In the first one, the trial judge made the following comments:

I do not accept that [the complainant], an established employee at the bar was willing to engage in high-risk sexual activity in a car on a busy street in full view of the public. It would make no sense for [the complainant] to engage in this activity and risk being seen by the public or worse, law enforcement, particularly when any consensual sex could be safely conducted in the privacy [of the appellant’s] residence which was only three houses away.

The Court of Appeal concluded that the trial judge’s reference to only a “fetish freak would engage in public sexual activity”, revealed “stereotypical reasoning” (at paragraphs 22 and 23):

Contrary to the appellant’s submissions, the inference that the complainant would not have engaged in the sexual act described by the appellant in a public vehicle is grounded in the evidence. This inference is based on the complainant’s testimony that she did not want a relationship with a co- worker, coupled with evidence that the appellant’s residence was nearby.

An inference that the complainant would not engage in such “high-risk” sexual activity in the car given her employment concerns would not have been predicated on myth or stereotype. However, the trial judge appears to have gone beyond this line of reasoning, based on related comments he made in the colloquy with defence counsel that reveal his belief that only a “fetish freak” would engage in public sexual activity. This is unquestionably stereotypical reasoning. The trial judge’s description of his thinking is made even more concerning by his comments that the complainant is not the type of person who would engage in such conduct – there is simply no other way to understand his remarks about how the complainant presented, or his evident assumption that a woman who would engage in such conduct would not have been uncomfortable testifying, as the complainant was. If this reasoning contributed to the trial judge’s conclusion that the complainant would not have engaged in consensual sexual activity in a vehicle parked on a public street, it not only violated the rule against stereotypical inferences, but it was also impermissible character reasoning. The law rightly guards against determining whether a complainant would consent to sexual activity based on their character. There is no room for such thinking.

In the second one, the accused raised the following comments made by the trial judge:

Nor do I find it credible that [the complainant] would agree to any type of sex in the confines of a car when she was having her period. This, in my view, defies logic.

The Court of Appeal concluded that these comments also illustrated stereotypical reasoning (at paragraph 26):

In any event, the trial judge’s related line of reasoning that it “defies logic” that the complainant would have agreed to any type of sex in the confines of a car when she was having her period manifestly breached the rule against stereotypical inferences and, as the Crown concedes, this erroneous reasoning was material in making the implausibility determination.