CAPCJ / ACJCP

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

TRIALS-STEREOTYPICAL REASONING

In R. v. D.R., 2022 SCC 50, December 1, 2022, the accused was charged with the offence of sexual assault, in relation to his granddaughter. After a trial, he was acquitted. The Crown appealed from acquittal, arguing that the trial judge erred in “assessing the complainant’s (ABR) credibility by engaging in impermissible stereotypical reasoning”. In acquitting the accused, the trial judge made reference to the complainant having a strong and normal relationship with her grandfather. The Crown appealed.

A majority of the Newfoundland and Labrador Court Appeal (White JA dissenting), allowed the appeal and a new trial was ordered. The Court of Appeal concluded that the trial judge’s “introduction of the strength and normality of ABR’s relationship with her grandfather as a step in his analysis of whether DR committed the offences as charged is obfuscating and diversionary. It has no place in determining whether alleged sexual abuse has occurred” (at paragraph 37).

The accused appealed, as of right, to the Supreme Court of Canada.  The appeal was dismissed.  In a brief oral judgment, the Supreme Court stated:

This is an appeal as of right from a decision of the Newfoundland and Labrador Court of Appeal setting aside acquittals and ordering a new trial in a case of sexual assault, among other offences.

The accused is the grandfather of the complainant, who was between 7 and 10 at the time of the alleged offences. There was evidence that the complainant was happy to see the accused and exhibited no avoidant behaviour toward him. From this, the trial judge inferred that the complainant had a “strong and normal” relationship with the accused, which caused the trial judge to doubt the credibility of her testimony regarding the alleged offences. Writing for the majority, Hoegg J.A. observed that the trial judge “rested his reasonable doubt on his conclusion . . . that their strong and normal relationship meant that her grandfather could not have been sexually abusing her” (para. 34 (CanLII)).

We agree with the majority of the Court of Appeal that this inference by the trial judge was rooted in stereotypical reasoning, rather than the entirety of the evidence, and that this constituted an error of law. While the trial judge set out other lines of reasoning relating to the complainant’s credibility, his reliance on stereotypical inferences undermines his assessment of her credibility and, thus, his verdict. The majority of the Court of Appeal decided, correctly in the circumstances, that the trial judge’s stereotypical reasoning had a material effect on the acquittal of the accused (see para. 61 and the heading for that paragraph).

Accordingly, we would dismiss the appeal and order a new trial.