Content Warning: Sexual Assault

The Ontario Court of Appeal recently clarified two prohibitions in judicial reasoning: the prohibitions on common-sense assumptions and the prohibition on stereotypes. These overlapping rules relate to where a judge is permitted to draw inferences based on human experience or generalizations.

In R v JC, 2021 ONCA 131, the Court of Appeal considered the case of JC. JC had been convicted at trial of sexual assault and extortion, after the trial judge found that he had threatened to release a sexual video of the Complainant on the internet if she didn’t continue a sexual relationship with him.

The Court of Appeal found two errors in the trial judge’s reasoning that were impermissibly based on common-sense assumptions or stereotypes.

First, JC had argued that the Complainant fabricated the sexual assault allegations in order to protect her relationship with her boyfriend. The trial judge rejected this “motive to falsify” argument, concluding that it was based on a stereotype often applied to victims of sexual assaults.

However, the Court of Appeal found that, while the “motive to falsify” theory may reflect a stereotype, it is a permissible inference for a judge to draw provided it is grounded in some evidence. Because the record contained some evidence that could support this theory (beyond just the fact of the Complainant having a boyfriend), it was wrong for the trial judge to reject the theory as based on stereotype.

The Court was clear that stereotypes have no role when assessing credibility, whether the Complainant’s credibility (such as how Complainants are expected to act after a sexual assault) or the accused’s credibility (at para 63). However, evidence or conclusions that reflect stereotypes are permissible, so long as they are based in the evidence (at paras 69-70). For example, evidence that a Complainant did not scream for help may be admissible, not to support the stereotypes of how victims should act, but to contradict testimony that the Complainant had screamed to attract attention (at para 69).

Second, the trial judge rejected JC’s testimony that the sexual relationship had been consensual. JC had testified that he sought consent before each stage of sexual activity with the Complainant: the trial judge found this testimony to be “too perfect, too mechanical, too rehearsed, and too politically correct” (at para 97).

The Court of Appeal held that the trial judge impermissibly relied on common-sense assumptions when rejecting JC’s testimony, specifically, the “stereotype that people engaged in sexual activity simply do not achieve the ‘politically correct’ ideal of expressly discussing consent to progressive sexual acts” (at para 97).

The Court cautioned that, while human experience and common sense can be used to identify inferences, they cannot be used by a decision-maker to introduce new considerations into the decision-making process. For example, it might be appropriate to infer that a Complainant would not have consented to a sexual encounter outdoors, in the dirt, in mid-December, but only if there was some evidence on the record such as the Complainant being concerned about her physical comfort or appearance (at para 62).

While this case involved a criminal sexual assault trial, it will be an important precedent for judicial reasoning in all areas of law, particularly proceedings where credibility is a major issue. Decision-makers will need to look carefully to the evidence in each case, ensuring that they do not invoke impermissible stereotypes but equally that evidence – even evidence supporting stereotypes – is not overlooked. Similarly, decision-makers will need to ensure that common-sense assumptions do not displace the evidence actually on the record.

Bakerlaw represents survivors of sexual assault and sexual harassment. You can check out our work on this area here (link).

If you have a case you’d like to discuss on a confidential basis, contact our team here (link).

If you are in need of support, you can access resources here (link).

You can read the JC decision here (link).

You can follow coverage of the JC decision from the Law Times here (link ).