Earlier this month, the Supreme Court of Canada released a joint decision for two major sexual assault cases, R. v. Kruk and R. v. Tsang. The ruling’s discussion of myths about sexual assault complainants and accused has received criticism from criminal defence counsel and acclaim from victims’ rights advocates. This decision can be expected to have a significant effect on how judges assess the credibility and reliability of an accused’s evidence in sexual assault cases across Canada.

SCC Decision Arose From Two Cases Involving Assumptions About Sexual Assault

The two unrelated cases at the heart of the Supreme Court’s decision were the Kruk and Tsang trials from British Columbia. Both Kruk and Tsang were convicted of sexual assault at trial, and both appealed their convictions to the British Columbia Court of Appeal.

In both cases, the trial judge made certain assumptions about human behaviour in assessing the evidence. In Kruk, the trial judge concluded that the complainant would not be mistaken about the feeling of penetration. In Tsang, the trial judge believed some aspects of the complainant’s behaviour weighed against the likelihood that her sexual encounter with the accused was consensual.

At both appeals, the B.C. Court of Appeal found the trial judges’ generalizations about the complainants’ behaviour were founded in “speculative reasoning”, which were material errors justifying the overturning of the convictions. The Crown appealed both cases to the Supreme Court of Canada, which heard the appeals together.

Crown Argued Trial Judges’ Findings About Accused’s Credibility Not a Basis for Overturning Convictions

At the Supreme Court, the Crown in both cases argued the B.C. Court of Appeal should have deferred to the trial judges’ interpretations of the evidence and their conclusions about the accused’s credibility. These findings, the Crown stated, did not constitute “palpable and overriding” errors.

In response, Kruk and Tsang argued the trial judges’ “ungrounded common-sense assumptions” constituted a material error in their findings about the accused men’s credibility, warranting the overturning of their convictions.

SCC: Ungrounded Common-Sense Assumptions About Accused Not an Error of Law

At the Supreme Court of Canada, the Court held that there is no automatic rule against “ungrounded common-sense assumptions” about an accused. In other words, a trial judge’s reliance on these assumptions is not an automatic error of law justifying overturning a conviction. Instead, the Court held that any faulty common-sense assumptions can be corrected by the rules of evidence used in criminal trials. For example, if the judge’s use of common sense discloses an error of law, it may be grounds for appeal.

Otherwise, the Supreme Court held that a trial judge’s reliance on common-sense assumptions will be treated like any other factual finding or assessment of credibility or reliability; it can only be reversed by a Court of Appeal if there is a palpable and overriding error. A palpable error is one where the assumption in question is “obviously untrue on its face” or is “untrue or inapplicable in light of the other accepted evidence or findings of fact”. The error is also overriding if it affected the result or went “to the very core of the outcome of the case”.

The Supreme Court found no such error was present in the Kruk case, while the error in the Tsang case was palpable, but not overriding.

Ungrounded Assumptions About Accused Not the Same as Stereotypes About Sexual Assault Complainants

The most controversial topic to arise from the Kruk and Tsang cases is the Supreme Court’s comments about ungrounded assumptions about individuals accused of sexual assault. The Court firmly stated that these assumptions are not analogous to the myths and stereotypes about victims of sexual assault and cannot be treated as such by appeal courts.

The Court affirmed the principle that a trial judge commits an error of law if they rely on stereotypes about sexual assault complainants in assessing their reliability or credibility. However, relying on ungrounded assumptions about those accused of sexual assault, the Court held, is not to be considered as severe an error (and thus, is not automatically an error in law warranting the reversal of a trial judge’s decision).

No Symmetry Between Treatment of Assumptions Because of Historical Treatment of Sexual Assault Complainants

The Court rejected any “impulse towards symmetry and formally identical treatment” between these two types of assumptions, explaining that:

“The prohibition against myths and stereotypes that undermine the credibility of sexual assault complainants has a unique history and a specific remedial purpose: to remove discriminatory legal rules that contributed to the view that women, as a group, were less worthy of belief and did not deserve legal protection against sexual violence…

In sum, the prohibition against myths and stereotypes about sexual assault complainants carries with it a discrete history, purpose, and character. It was designed with the specific goal of protecting complainants against prejudicial or discriminatory reasoning in criminal trials. The proposed rule against ungrounded common-sense assumptions should be rejected because it enlarges that particular context beyond its proper scope.”

Decision Lauded by Women’s Rights Groups; Criticized by Criminal Defence Lawyers

Advocacy groups, such as the Legal Education and Action Fund (LEAF), celebrated the Supreme Court’s decision as “affirm[ing] the importance of protecting survivors’ equality and dignity rights in the trial process”. LEAF and its West Coast branch were intervenors in the hearing. In their submissions, they pointed to the risk sexual assault complainants face of being put through “traumatic and intrusive” questioning at trial and argued that:

… “the lack of clarity around the rule against ‘ungrounded common-sense assumptions’ [against those accused of sexual assault] increased this risk and created room for the use of stereotypes.”

Criminal defence lawyers, however, have raised concerns that the Supreme Court’s ruling unfairly limits the grounds for appeal available to accused and their counsel. Some have argued that the Kruk and Tsang decision effectively creates a “double-standard” about “common-sense” assumptions about accused and complainants, giving too much weight to judges’ personal views. As explained by Kruk’s legal counsel, Brent Anderson:

“The difficulty with common sense is that it is rarely ‘common’ to all and is a concept that is imbued with bias or prejudice whether conscious or unconscious.”

Barrison Law Provides Experienced Representation Against Sexual Assault Charges in Durham Region

How appellate courts across Canada will apply the Kruk/Tsang decision remains to be seen. The skilled criminal defence lawyers at Barrison Law keep on top of all significant legal developments and build each client’s case to enhance the credibility of their evidence, using all available options for their defence. We provide discreet, knowledgeable services that protect your privacy as much as possible and protect your future. Our firm defends clients against a broad range of sexual offences, including sexual assault, date rape, cases involving children and child pornography, internet luring, and voyeurism.

Barrison Law is based in Oshawa and is located within walking distance of the Durham Consolidated Courthouse. We provide a confidential free consultation and a variety of payment options, including Legal Aid and private retainer. We also have a 24-hour emergency call service for those in need of immediate assistance. To discuss your case with our knowledgeable team, call us at 905-404-1947 or reach out online.