Her Majesty the Queen v. A.B.A.

[Indexed as: R. v. A. (A.B.)]

Ontario Reports

Court of Appeal for Ontario

MacPherson, Pardu and D.M. Brown JJ.A.

February 20, 2019

145 O.R. (3d) 634 | 2019 ONCA 124

Case Summary

Criminal law — Sexual assault — Credibility — Accused acquitted of sexually assaulting his sister-in-law — Trial judge negatively assessing complainant's credibility because her behaviour was not consistent with that of victim of brutal sexual assault — Trial judge erring in law by relying on stereotypical views about how sexual assault victims behave — Trial judge's error material to verdict as her determination that she believed accused was inextricably linked to her assessment of complainant's credibility — Crown's appeal allowed.

The accused was acquitted of sexually assaulting his sister-in-law. The complainant testified that the accused came to her apartment and digitally penetrated her vagina, penetrated her vagina and anus with his penis, and forced oral sex on her, all without her consent, and that five days later, while she was at her sister's home helping to care for her sister's children, he forced oral sex on her again. The accused testified that the sexual activity was consensual. The trial judge negatively assessed the complainant's credibility based on a lack of correspondence between her behaviour (which included continued association with the accused and failure to flee or call for help when possible) and the behaviour one would expect of a sexual assault victim. She accepted the accused's claim that the sexual activity was consensual. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred in law by relying upon stereotypical views about how victims of sexual assault behave. The verdict might have been different had that legal error not occurred. The error was material to the verdict as the trial judge's determination that she believed the accused was inextricably linked to her assessment of the complainant's credibility.

Cases Referred To

• R. v. B. (G.), [1990] 2 S.C.R. 57
• R. v. D. (A.R.J.), [2018] 1 S.C.R. 218, 2018 SCC 6
• R. v. Graveline, [2006] 1 S.C.R. 609, 2006 SCC 16
• R. v. H. (J.M.), (2011), 113 O.R. (3d) 80, [2011] 3 S.C.R. 197, 2011 SCC 45
• R. v. Luceno, [2015] O.J. No. 5826, 2015 ONCA 759
• R. v. Mackenzie, [1993] 1 S.C.R. 212
• R. v. Morin, [1988] 2 S.C.R. 345
• R. v. Vézeau, [1977] 2 S.C.R. 277

Proceedings

APPEAL by the Crown from the acquittal entered by A.K. Mitchell J., [2018] O.J. No. 1778, 2018 ONSC 2198 (S.C.J.).

Counsel:

Jamie Klukach and Candice Suter, for appellant.

Robert Sheppard, for respondent.

Judgment

The judgment of the court was delivered by

PARDU J.A.:

Facts

[1] The Crown appeals from an acquittal of the respondent of sexual assault of his sister-in-law. The complainant and the respondent had known each other for some ten to 15 years. The complainant testified that at a time when the respondent was living apart from his wife because of marital problems, he came to her apartment and digitally penetrated her vagina, penetrated her vagina and anus with his penis, and forced oral sex upon her, all without her consent. She testified that about five days later, while she was at her sister's home helping to care for her sister's children, the respondent forced oral sex upon her again without her consent.

[2] The respondent testified and said that the sexual activity between them was consensual.

[3] The Crown submits that the trial judge erred in law by relying on myths or stereotypical assumptions about how sexual assault complainants are expected to behave in the aftermath of a sexual assault. The respondent submits that even if the trial judge did err in her assessment of the complainant's credibility, the error was immaterial because the trial judge found that the respondent was a credible witness. She accepted his evidence that the sexual activity was consensual, and this was a solid foundation for the acquittal, regardless of the assessment of the complainant's credibility.

Analysis

The Errors

[4] The Crown's right of appeal from an acquittal is limited to a question of law alone: R. v. H. (J.M.) (2011), 113 O.R. (3d) 80, [2011] 3 S.C.R. 197, [2011] S.C.J. No. 45, 2011 SCC 45, at para. 39. While credibility findings are generally insulated from appellate review, an error in legal principle affecting that assessment is an error of law: R. v. Luceno, [2015] O.J. No. 5826, 2015 ONCA 759, 341 O.A.C. 223, at para. 34.

[5] Reliance upon stereotypical views about how victims of sexual assault would behave is an error of law: R. v. D. (A.R.J.), [2018] 1 S.C.R. 218, [2018] S.C.J. No. 6, 2018 SCC 6, at para. 2, affg 2017 ABCA 237, [2017] A.J. No. 746, 55 Alta. L.R. (6th) 213.

[6] In D. (A.R.J.), the Alberta Court of Appeal allowed an appeal from an acquittal on charges of sexual assault of the accused's stepdaughter, aged 11-16 at the time of the alleged offences. Although the trial judge cautioned himself against reliance upon myths of appropriate behaviour, he reasoned [at para. 4] that "[a]s a matter of logic and common sense, one would expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change of behaviour such as avoiding the perpetrator".

[7] The Alberta Court of Appeal described how seeming resort to "common sense" can mask reliance on stereotypical assumptions [at paras. 6-9]:

An accused's right to make full answer and defence and the criminal standard of proof beyond a reasonable doubt, do not allow reliance on prejudicial generalizations about sexual assault victims; this is of paramount importance when adjudicating matters involving child complainants. This can happen when juries and the judiciary do not even realize they are relying on prejudicial generalizations, leading to the drawing of inferences that are not part of the record but are instead, based on their own "common sense and logic" which is, in fact, unfair and inaccurate.

Sometimes this impermissible form of reasoning is opaque and therefore more difficult to identify and correct on appellate review. But this case is an example where the impermissible reliance is patent and cannot stand. This appeal represents an example of how deeply ingrained and seductive these myths and stereotypes can be. In this judicial analysis the trial judge carefully and correctly cautioned himself against reliance on certain myths and then proceeded to rely on another--one he obviously did not recognize, and cloaked as it was with the faux imprimatur of common sense.

In our view, a core underlying tension is revealed in this trial judgment--whether, in assessing the complainant's credibility, it was proper for the trial judge to rely on what he presumed to be the "expected" conduct of a victim of sexual abuse after an assault, and comparing the specific behaviour of the complainant to that expectation. We must deal with the issue: is the expectation of avoidant conduct or clear behavioural changes by a sexual assault victim a matter of logic and common sense, or [is it] just another stereotype, or myth, that cannot be supported either as a matter of logic or as an available inference on this record?

To be clear, reliance on a stereotype to found an assessment of credibility bearing on reasonable doubt is impermissible --it is an error of law. Accordingly, reasonable doubt is not a shield for appellate review if that doubt is informed by stereotypical and therefore prejudicial reasoning. Similarly, to suggest that stereotypical thinking is merely logic or common sense is a licence for it to continue unmasked and unabated. That is why, as a matter of law, this type of reasoning must not be insulated from appellate review.

[8] Here too the trial judge instructed herself that "the expectation of how a victim of sexual assault will, or should, behave must not be assessed on the basis of stereotypes, generalizations and myths": at para. 22. However, she then proceeded to adopt a "common sense" approach and negatively assess the complainant's credibility based on a lack of correspondence between her behaviour and the behaviour one would expect of a person [at para. 26] "who ha[d] been brutally sexually assaulted".

[9] The trial judge began her credibility analysis with the following observation, at para. 23:

Unlike the child complainant in R. v. A.R.D., [the complainant] is an adult female. From her testimony we learned that she suffers from agoraphobia (fear of crowds and public places), post-traumatic stress disorder and fibromyalgia. She is on ODSP. However, there was no evidence to suggest she is a member of a particularly vulnerable sector of society. I have no reason to believe she is unable to care for herself and make appropriate decisions called for in the circumstances in order to protect herself from harm or further harm.

[10] Inherent in this approach is a comparison of the complainant's behaviour to what the trial judge viewed was "appropriate" behaviour that the trial judge would have expected of an adult threatened with a sexual assault or a victim of sexual assault. The issue here was not what steps the complainant should have taken to protect herself, but, rather, whether she consented to sexual activity with the respondent.

[11] The complainant testified that she was afraid of the respondent after he sexually assaulted her. The trial judge found that the complainant's conduct after the assault, which included continued association with the respondent and failure to flee or call out for help when possible, undermined her evidence, again measured against how the trial judge would have reasonably expected her to behave. She stated [at para. 26], "Aside from the alleged rape, there is no evidence to support a finding that her fear existed or if it existed was reasonable in the circumstances."

[12] The complainant testified that at times she fought back while at other times she acquiesced to the sexual activity out of fear. The trial judge observed [at para. 28], "Surely, it is one or the other. She is either scared to fight back and tell him to stop, or not." Neither behaviour is inconsistent with an absence of consent to sexual activity on the complainant's part. The trial judge also concluded that the complainant's submission to the respondent's pushing his penis into her mouth was [at para. 29] "consistent with consensual sexual contact and inconsistent with non-consensual sexual contact". Again, this reflects an assumption as to how a victim of sexual assault would react.

Were the Errors Material to the Verdict?

[13] To overturn an acquittal, it is not enough for the Crown to show that the trial judge erred in law. The Crown must also show to a reasonable degree of certainty that the verdict would not necessarily have been the same if the legal error had not been made or, stated positively, that the verdict might have been different had the error not been made. See R. v. Vézeau, [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71, at p. 292 S.C.R.; R. v. B. (G.), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57, at pp. 78-79 S.C.R.; and R. v. MacKenzie, [1993] 1 S.C.R. 212, [1993] S.C.J. No. 7, at p. 247 S.C.R.

[14] This test has been formulated in other ways as well. In R. v. Morin, [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, for example, Sopinka J. affirmed the Vézeau test, and elaborated further, at p. 374 S.C.R.:

I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do.

[15] The Crown does not have to establish that the verdict would necessarily have been different. In R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, at para. 14, Fish J. for the majority held that the Crown must establish that the errors "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal", and elaborated as follows:

It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

[16] The trial judge acquitted the respondent because she believed his testimony that the sexual activity was consensual. In doing so, she gave several reasons for believing him which were independent of her assessment of the complainant's testimony. Importantly, however, her assessment of the complainant's credibility played a prominent role in her determination of whether to believe the respondent. She acknowledged, at para. 21, that the case was "not a credibility contest" but wrote that her assessment of the respondent's credibility "hinged" in large part on whether she believed the complainant was credible:

The first step of the W.D. analysis requires me to assess whether I believe [the respondent's] evidence on the issue of consent. If I do, I must acquit him. To assess the believability of [the respondent's] evidence in this regard, I must consider his evidence in the context of the evidence [of the complainant]. His believability hinges in large part on whether or not I believe [the complainant] and find her to be a credible witness.

[17] The trial judge then went on to explain why she did not believe the complainant, applying the stereotypical views about how victims of sexual assault should behave which have been described above. The trial judge's determination that she believed the respondent was inextricably linked to her assessment of the complainant's credibility, which itself was fundamentally affected by legal error.

[18] Here I am satisfied that the verdict might have been different had the legal errors not occurred. The errors had a material bearing on the acquittals, that is to say, the errors may well have affected the outcome. I am not satisfied that the verdict necessarily would have been different but for the errors, but the Crown is not required to meet that more stringent test.

[19] In the result, accordingly, I would set aside the acquittal and order a new trial.

Decision

Appeal allowed.

End of Document