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

THE AVOIDANCE OF STEREOTYPICAL REASONING IN RENDERING JUDGMENT

Canadian trial judges have been encouraged to rely upon “reason, common sense and life experience” in making credibility assessments (see R. v. Delmas, 2020 ABCA 152, para. 31, aff’d 2020 SCC 39). However, a number of recent Canadian Court of Appeal decisions have concluded that this use of common sense has, at times, caused Canadian trial judges to stray into stereotypical reasoning, rendering their credibility based judgments invalid. In very succinct terms, the Nova Scotia Court of Appeal recently indicated that “[r]eliance on a stereotype in assessment of credibility is impermissible and an error of law” (see R. v. Stanton, 2021 NSCA 57, para. 84).

What is Stereotypical Reasoning?

The British Columbia Court of Appeal has suggested that it involves a trial judge drawing “an adverse inference about a witness’s credibility based on stereotypes, generalizations, or assumptions about how individuals would behave in a particular circumstance that are not (a) grounded in the evidence, or (b) so uncontroversial that they could properly be the subject of judicial notice” (see R. v. Greif, 2021 BCCA 187, para. 60).

In R. v. Roth, 2020 BCCA 240, it was indicated that although trial judges “are entitled to rely on their human experience in assessing the plausibility of a witness’s testimony, they must avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence.” When “inferences reflect conjecture and speculation, based on stereotypical reasoning, a generalization about a particular role or type of individual, unfounded assumptions or otherwise, it amounts to legal error” (paras. 65 and 73).

In this column, I intend to review a number recent Canadian Court of Appeal decisions in an to attempt to determine when the use of “common sense” by Canadian trial judges, in making credibility assessments, has strayed in to stereotypical reasoning. I will offer some suggestions to avoid this occurring. I intend to start with assessing the nature of the problem in Canada.