In R. v. Pastro, 2021 BCCA 149, April 15, 2021, the accused was convicted of the offence of sexual assault.  The complainant was seventeen years-of-age. The accused was forty-nine years of age and was a friend of the complainant’s father.

The accused appealed from conviction, arguing, in part, that the trial judge erred by relying on inappropriate “generalizations about expected human behavior” in assessing the complainant’s credibility.

The Trial Judge’s Reasons:

In convicting the accused, the trial judge stated:

Mr. Pastro’s testimony that [the complainant] would flirt with him and act in a sexual manner towards him is unbelievable. During the relevant time period, [the complainant] was 17 years old and living with her boyfriend of the same age. The assertion that she was sexually attracted to a 49‑year‑old friend of her father’s is unbelievable.

The appeal was dismissed.

The Court of Appeal’s Reasons:

The British Columbia Court of Appeal noted that trial judges “are entitled, and expected, to rely on their life experience in making credibility findings. This necessarily includes drawing common‑sense inferences from established facts. Juries are routinely instructed along the same lines—to come to common‑sense conclusions based on the evidence they accept. Where it is apparent from a review of the reasons as a whole that a credibility assessment is rooted in the evidence, and is the product of a case‑specific determination about what the complainant and accused did or did not do, there will be no basis for appellate intervention” (at paragraph 41).

The Court of Appeal also noted that the “corollary” is that trial judges “must avoid purporting to make factual findings that are rooted in inappropriate behavioural assumptions and stereotypes” Thus, trial judges must refrain from making findings of credibility “on a subjective assessment of what a hypothetical complainant or accused might reasonably be expected to do in the circumstances, but on what the evidence establishes the complainant and accused did or did not do in the context of the case being tried” (at paragraph 42).

The Court of Appeal pointed out that “[h]istorically, preconceived notions about behavioural expectations rooted in myths or stereotypic reasoning were used to unfairly discredit sexual assault complainants. As sexual assault complainants are disproportionately female, the application of predominantly male understandings of how women should behave in the context of sexual assault allegations gave rise to profound gender bias in legal reasoning, and a consequent failure to extend to female (and sometimes male) complainants the equal protection of the law” (at paragraph 49).

The Court of Appeal also pointed out that stereotypic reasoning “is also capable of operating in reverse—to artificially bolster a complainant’s credibility on grounds that no woman would consent to the conduct alleged. The corollary of this kind of impermissible reasoning—that it is inconceivable a woman would have consented in the circumstances before the court—is that the accused’s evidence she did consent must be unworthy of belief” (at paragraph 50).

The Court of Appeal indicated that trial judges “risk falling into reversible error if they make credibility determinations by relying on assumptions about the type of behaviour that would ‘normally’ be expected of a person without engaging with the evidence, including the context in which contentious events arose” (at paragraph 43).   This is “dangerous because it does not account for the unpredictable, surprising, and out‑of‑character ways in which human beings sometimes do behave” (at paragraphs 44 and 45):

Recourse to generalizations about normative behaviour in assessing the credibility of a witness that do not rest on the evidence, including reasonable inferences that may be drawn from it, departs from the foundational principle that triers of fact—judges and juries—are obliged to decide cases based only on the evidence before them. As Justice Major put it in R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para. 13 (dissenting in the result), while life experience is an important ingredient in the determination of credibility, it is not a substitute for engagement with the evidence. Relying on assumptions about how people “normally” behave to make findings of fact and credibility engages speculative reasoning. In addition, approaching the fact‑finding process in this way is dangerous because it does not account for the unpredictable, surprising, and out‑of‑character ways in which human beings sometimes do behave. The danger may be particularly acute where the context in which a contentious event has occurred is such that behavioural norms may be even less likely to serve as reliable touchstones in the fact‑finding process.

Assumptions about human behaviour can also easily be cloaked with and legitimized by the “faux imprimatur of common sense”: see A.R.D. at para. 7. I would add that negative assessments of credibility based on generalizations about normative behaviour also tend to be opaque, difficult to identify, and resistant to meaningful appellant review.

Conclusion:

The Court of Appeal concluded that “reading the reasons as a whole, the judge’s rejection of the appellant’s evidence is not the product of speculative reasoning nor does it rest on a stereotypic understanding of the improbability of any teenaged woman being sexually attracted to a much older male…his credibility findings are not based on stereotypic assumptions about how a 17‑year‑old female would be expected to interact with a 49‑year‑old male. I do not read his credibility findings as resting on any perceived universal truths about human behaviour thought to be applicable to this context. Rather, those findings are based on the judge’s assessment of how this 17‑year‑old female in fact responded to the sexual attentions of the appellant. In short, I am satisfied that the judge’s credibility findings are the product of an evidence‑based and context‑specific assessment of the testimony of the appellant and the complainant. In my view, the judge’s approach to the assessment of credibility has not been shown to reflect error in principle” (at paragraphs 66 and 67).