CAPCJ / ACJCP

Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

THE AVOIDANCE OF JUDICIAL STEREOTYPICAL REASONING

R. v. Adebogun, 2021 SKCA 136, October 20, 2021, at paragraph 29:

…the line between proper common-sense assumptions about ordinary human conduct and ungrounded assumptions or impermissible prejudicial or stereotypical reasoning can be a fine one for triers of fact to walk. To stay on the right side of that line, judges must take care to ensure that their assessments remain grounded in the evidence. As Leurer J.A. explained in his dissenting reasons in R v Mehari, 2020 SKCA 37 at para 78 452 DLR (4th) 413, reversed 2020 SCC 40, 452 DLR (4th) 410), “there is a difference between relying on generalizations and stereotypes that are abstract in nature and drawing inferences that are tied to the actions of a particular person in particular circumstances”. The use of common-sense reasoning and the incorporation of common human experience into the analysis are proper, provided the analysis remains tied to, and rooted in, specific consideration of the evidence offered at trial (see, for example: R v F.B.P., 2019 ONCA 157 at para 9; and R v Cepic, 2019 ONCA 541 at paras 22–‍23, 376 CCC (3d) 286). As was noted in both Pastro and J.C., it is not an error for a judge to come to a conclusion that may align with a stereotypical expectation, as long as that conclusion is drawn from the evidence in the record, rather than the product of an unsupported assumption or generalization about how an individual would be expected to behave in a given situation (see also: R v Quartey, 2018 SCC 59 at para 3, [2018] 3 SCR 687; Greif at para 65; and Paulos at paras 33, 35–37).