In the case of R v Kruk, 2024 SCC 7 (Kruk), the Supreme Court of Canada (SCC) unanimously rejected a proposed rule prohibiting trial judges from making common-sense assumptions when assessing credibility. This decision is important because it clarifies and narrows the role of myths and stereotypes in legal reasoning. It also confirms the high standard to interfere with a trial judge’s credibility assessment.
Background of the Case
Although Kruk is a single decision, it arises from the hearing of two separate and unrelated appeals for convictions of sexual assault: one involved Mr. Kruk and the other involved Mr. Tsang. Both instances involved penetrative sexual assaults on complainants who were strangers to the accused.
In Kruk, the issue at trial was whether the alleged sexual activity occurred at all. The complainant, despite being intoxicated and having gaps in her memory, testified that penile-vaginal penetration took place. The trial judge found her credible on this core issue, noting that it would be extremely unlikely for a woman to be mistaken about such a feeling, even while intoxicated.
In Tsang, the issue was whether the sexual activity was consensual. The trial judge rejected Mr. Tsang’s testimony based on three assumptions about human behaviour: (1) a person would not ask to be spanked during foreplay “out of the blue,” (2) a controlling individual would not refrain from vaginal intercourse just because a condom was not available, and (3) someone would not abruptly drive away from a person with whom they had just engaged in consensual sex.
Appeals and the British Columbia Court of Appeal’s Decision
Both convictions were overturned unanimously by the British Columbia Court of Appeal. Relying on R v Roth, 2020 BCCA 240, the BCCA found that while trial judges can draw on personal life experience to assess credibility, trial judges must avoid speculative reasoning based on common-sense assumptions that are not grounded in the evidence. The court held that both trial judges had erred by making generalizations about human behaviour without evidentiary support. These errors warranted new trials in each case. In Kruk, the BC Court of Appeal reversed because the likelihood of a woman being mistaken about penile-vaginal penetration engaged questions of neurology, physiology and psychiatry that were not before the trial court. In Tsang, the BC Court of Appeal found that the above three assumptions about human behaviour were speculative and ungrounded in the evidence.
Supreme Court of Canada’s Ruling
The SCC unanimously allowed the appeals and rejected a proposed rule against common-sense assumptions. Writing for the majority, Justice Martin provided two key reasons for this rejection:
1. Distinguishing Myths and Stereotypes from Generalizations
The SCC found that the proposed rule against common-sense assumptions is not a logical extension of the legal rules against stereotyping. The prohibitions against myths and stereotypes are specifically aimed at combating historical biases against sexual assault complainants, particularly women. These myths and stereotypes perpetuate discriminatory attitudes and undermine the credibility of complainants based on archaic concepts of sexual violence and the behaviour of sexual assault victims. Extending the legal prohibitions against stereotyping to all generalizations in criminal trials dilutes the purpose of the rules against stereotyping and ignores the distinct harm caused by such stereotypes.
2. Upholding Deference to Trial Judges’ Credibility Assessments
The SCC reaffirmed the high threshold for appellate intervention in credibility assessments. It is a long-standing rule that trial judges are uniquely positioned to observe witnesses firsthand and are entrusted with weighing evidence using common sense and life experience. Generalizations about human behaviour help judges assess the plausibility of testimony and the reliability of witnesses; allowing appellate courts to second-guess these assessments undermines the trial judge’s role and could create a chilling effect, discouraging judges from providing thorough reasons for their decisions. The SCC cautioned against appellate courts dissecting trial judgments in search of errors, as this could lead to unnecessary retrials and contribute to judicial inefficiency.
Standard of Review for Common-Sense Assumptions
The SCC held that the standard of review for a trial judge’s use of common-sense assumptions remains the same as for other aspects of credibility assessments: palpable and overriding error. They clarified that an appellate court should only intervene if:
- An erroneous assumption was in fact made, as opposed to a finding based on the evidence.
- The assumption is beyond the bounds of common sense and judicial function.
- The erroneous error is palpable in that it is “plainly seen”, “plainly identified” or “obvious”.
- The erroneous assumption was overriding in that it is “shown to have affected the result” or “goes to the very core of the outcome of the case”.
Applying this standard, the SCC found that in Kruk, the trial judge had not made an erroneous assumption but had simply addressed a defence submission. In Tsang, while the trial judge did make one erroneous assumption (that someone would not abruptly drive away from a person with whom they had just engaged in consensual sex), it was not material to the verdict.
Implications and Analysis
Generally speaking, trial judges may use common-sense reasoning when assessing credibility without undue fear of appellate interference. In rejecting the rule against common-sense assumptions, the SCC has clarified that the prohibition against stereotypical reasoning is limited to areas that correct historical discrimination against sexual assault complainants; accused and third-party witnesses are not insulated from common-sense reasoning about their credibility.
Conclusion
The Supreme Court’s ruling in R v Kruk is a definitive statement on the role of common-sense reasoning in judicial decision-making. The decision underscores the importance of distinguishing between discriminatory and inadmissible stereotypes and other legally permissible generalizations about human behaviour.
