R. v. Kruk, 2024 SCC 7

Supreme Court of Canada

Appeals Heard: May 18, 2023 Judgment Rendered: March 8, 2024 Dockets: 40095, 40447

Parties

Between:

His Majesty The King — Appellant

and

Christopher James Kruk — Respondent

and

Independent Criminal Defence Advocacy Society, Criminal Lawyers' Association (Ontario) and Trial Lawyers Association of British Columbia — Interveners

‑ and ‑

His Majesty The King — Appellant

and

Edwin Tsang — Respondent

and

Attorney General of Alberta, Independent Criminal Defence Advocacy Society, Association québécoise des avocats et avocates de la défense, West Coast Legal Education and Action Fund Association, Women's Legal Education and Action Fund Inc. and Trial Lawyers Association of British Columbia — Interveners

Indexed as: R. v. Kruk

2024 SCC 7

File Nos.: 40095, 40447.

2023: May 18; 2024: March 8.

Present: Wagner C.J. and Côté, Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ.

on appeal from the court of appeal for british columbia

Headnotes

Criminal law — Appeals — Standard for appellate intervention — Credibility and reliability assessment — Common-sense assumptions — Accused both convicted of sexual assault at trial — Court of Appeal finding that trial judges' credibility and reliability assessments were based on common-sense assumptions not grounded in evidence — Court of Appeal overturning convictions on basis that trial judges erred in law by failing to abide by rule against ungrounded common-sense assumptions — Whether error of law based on rule against ungrounded common-sense assumptions should be recognized.

K and T were convicted of sexual assault in separate and unrelated matters. In both cases, the Court of Appeal overturned the convictions on the basis of alleged errors of law in the trial judges' credibility and reliability assessments. Using the rule against ungrounded common‑sense assumptions, which originated in a series of appellate cases, the Court of Appeal found that the trial judges erred in law by making assumptions about human behaviour not grounded in the evidence. In K's appeal, the court held that the trial judge's conclusion that it was unlikely that a woman would be mistaken about the feeling of penile‑vaginal penetration relied on speculative reasoning and was not the proper subject of judicial notice. In T's appeal, the court held that the trial judge had made three assumptions about human behaviour that had impacted her assessment of the evidence: (1) a person would not ask to be spanked while engaging in sexual foreplay out of the blue; (2) a controlling person would not refrain from engaging in vaginal intercourse because they could not find a condom; and (3) a person would not abruptly and unceremoniously drive away from the person with whom they had engaged in consensual sex. The court found that these generalizations were not based in the evidence and engaged in speculative reasoning, and that these errors were material. New trials were ordered for K and T.

Held: The appeals should be allowed and the convictions restored.

Per Wagner C.J. and Côté, Martin, Kasirer, Jamal and O'Bonsawin JJ.: The rule against ungrounded common‑sense assumptions should not be recognized as giving rise to an error of law. Such an error of law would represent a radical departure from how appellate courts have typically approached credibility and reliability assessments, especially in the context of sexual assault. The proposed rule is in no way analogous to the body of law protecting sexual assault complainants from myths and stereotypes, nor can it be justified as necessary to ensure fairness to the accused. It also treats any and all factual assumptions drawn in the course of testimonial assessments as errors of law and thereby represents an unjustified departure from well‑established principles governing testimonial assessment and appellate standards of review. The faulty use of common‑sense assumptions in criminal trials should continue to be controlled by existing standards of review and rules of evidence. In some cases, a trial judge's use of common sense will be vulnerable to appellate review because it discloses recognized errors of law. Otherwise, like with other factual findings, credibility and reliability assessments — and any reliance on the common‑sense assumptions inherent within them — will be reviewable only for palpable and overriding error. In the instant cases, assessing the trial judges' credibility and reliability findings using the proper standard of palpable and overriding error, no such errors were made.

First, the proposed rule against ungrounded common‑sense assumptions is not a logical extension of the prohibition against myths and stereotypes about sexual assault complainants. It reflects a misunderstanding of the distinct body of law associated with myths and stereotypes in sexual assault cases, which 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. Several myths and stereotypes have been jurisprudentially condemned as errors of law and significant legislative changes were made with a view to protecting the rights of women and children given their particular vulnerability to sexual violence. This history puts into perspective the distinct reasons why relying on myths and stereotypes to discredit sexual assault complainants amounts to an error of law, as opposed to being an ordinary factual finding reviewable for palpable and overriding error. Conversely, the proposed rule does not relate to specific, identified, erroneous generalizations about a specific category of witness, nor does it protect elements of an offence from taking on a distorted meaning. It instead lumps together the sorts of pernicious, discriminatory stereotypes that both the courts and Parliament have worked to condemn and correct with more benign generalizations that, while they may be factually wrong, have nothing to do with inequality of treatment.

The rule would also drastically expand the scope of permissible questioning into a complainant's sexual history, effectively requiring both parties to apply to adduce other sexual activity evidence that may not otherwise be relevant or permitted, opening a back door to prohibited twin‑myth reasoning. Although framed in terms of ensuring equal treatment for the accused, this approach in fact risks resurrecting the very prejudice against sexual assault complainants that the law on myths and stereotypes was designed to eliminate. Recognizing an identical rule mirroring the treatment of myths and stereotypes between complainants and accused is not necessary and would be misguided. The accused's rights remain safeguarded by crucial legal protections explicitly designed to ensure fairness to the accused that find their source in their own robust body of law flowing from principles such as the presumption of innocence, the right to silence, and reasonable doubt. Such protections ensure fairness to the accused and must guide trial judges in assessing testimony.

Furthermore, the proposed rule is counterproductive to proper testimonial assessment and incompatible with the often inextricable role common‑sense assumptions play in credibility and reliability assessments. By prohibiting ungrounded common‑sense assumptions, the rule interferes with the necessary recourse to common sense as a part of testimonial analysis. It is effectively impossible to draw a clear boundary between using human experience to interpret evidence or draw inferences (which is permissible under the rule) and introducing new considerations into the evidence (which is not). The rule invites appellate courts to substitute their opinions about what generalizations are appropriate or instructive for those of trial judges, improperly transforming their strong opposition to a trial judge's factual inferences into supposed legal errors, thus creating uncertainty and unfairness on appeal.

The rule also runs contrary to established standards of review and would unduly increase the scope of appellate intervention into the credibility and reliability assessments of trial judges. These assessments can be the most important and difficult judicial determinations in a criminal trial, especially in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. Although credibility and reliability findings may be overturned on correctness if errors of law are disclosed, in most cases it is preferable to review them using the nuanced and holistic standard of palpable and overriding error — which defers to the conclusions of trial judges who have had direct exposure to the witnesses themselves and have expertise in assessing and weighing the facts. The reasons for the deference accorded to a trial judge's factual and credibility findings include: (1) limiting the cost, number, and length of appeals; (2) promoting the autonomy and integrity of trial proceedings; and (3) recognizing the expertise and advantageous position of the trial judge. Appellate courts are comparatively ill‑suited to credibility and reliability assessment, being restricted to reviewing written transcripts of testimony and often focusing narrowly on particular issues as opposed to seeing the case and the evidence as a whole. Invoking the proposed rule, appellate courts have been invited to parse trial reasons, attack generic statements made in the course of credibility assessments, and frame any credibility findings based on human behaviour as impermissible stereotype or common‑sense assumptions untethered to evidence. The jurisprudence in this area is variable, even volatile, and evinces the need for a more consistent approach to appellate review.

In view of the rejection of the proposed rule, appellate courts should continue to rely on the existing and well‑established law on assessing a trial judge's credibility or reliability assessments. First, where an appellant alleges that a trial judge erroneously relied on a common‑sense assumption in their testimonial assessment, the reviewing court should consider whether what is being impugned is, in fact, an assumption. What might appear to be an assumption may actually be a judge's particular finding about the witness based on the evidence. Second, if the trial judge did rely on an assumption that is beyond the bounds of what common sense and the judicial function support, the reviewing court should identify the appropriate standard of review applicable to the impugned portion of the trial judge's credibility or reliability assessment. The standard of review will be correctness if the error alleged is a recognized error of law, such as reliance on myths and stereotypes about sexual assault complainants, or improper and incorrect assumptions about accused persons contrary to fundamental principles such as the right to silence and the presumption of innocence. Stereotypes based in other forms of inequality of treatment that are analogous to myths and stereotypes about sexual assault complainants may also be recognized as errors of law in future cases. Testimonial assessments may also become vulnerable to correctness review for reasonable apprehension of bias, making a finding of fact for which there is no evidence, and improperly taking judicial notice.

Absent an error of law, the standard of review will be palpable and overriding error. The reviewing court must first determine whether the erroneous reliance on the assumption is palpable, such as where the assumption in question is obviously untrue on its face, or where it is untrue or inapplicable in light of the other accepted evidence or findings of fact. Once a palpable error has been identified, the reviewing court must also find that the erroneous reliance on the assumption was overriding, where it has affected the result or goes to the very core of the outcome of the case. If it cannot be shown that the error was palpable and overriding, a trial judge's assessment of credibility or reliability will be entitled to deference and there will be no basis for appellate intervention.

In K and T's cases, the Court of Appeal erred in using the rule against ungrounded common‑sense assumptions and reviewing the alleged improper generalizations on a correctness standard. The trial decisions in both cases should have been reviewed for palpable and overriding error. In K's case, the Court of Appeal erred in concluding that the trial judge relied on speculative reasoning in accepting the complainant's evidence based on his observation that it is extremely unlikely that a woman would be mistaken about the feeling of penile‑vaginal penetration. Viewing the reasons as a whole and in context, the trial judge did not reject the defence theory because of an assumption that no woman would be mistaken, but rather because he accepted the complainant's testimony that she, herself, was not mistaken. The trial judge's conclusion was grounded in his assessment of the complainant's testimony and no palpable and overriding errors were made. In T's case, the Court of Appeal erred in concluding that the trial judge's assessment of the accused and the complainant's credibility was fatally affected by three material unfounded assumptions about normal behaviour. The first two assumptions were not assumptions but statements that reflected the trial judge's reasoning process and findings of fact. The third assumption was truly an assumption and one that was palpably incorrect. However, it was not overriding, as it did not affect the core of the trial judge's finding of guilt.

Per Rowe J.: Generalized expectations based on common sense and human experience play a necessary role in the judicial fact‑finding process; however, reliance on generalized expectations in a criminal proceeding is not without limits, as some expectations may not be accurate or reliable predictors of general human behaviour. The proliferation of appellate jurisprudence identifying concerns about the limits of this exercise points to the need for guidance in the form of a clear and consistent framework for appellate review. This framework is composed of three questions that an appellate court should ask when reviewing for potential legal error in a trial judge's reliance on generalized expectations in the fact‑finding process: (1) Did the trial judge rely on a generalized expectation in their reasoning process? (2) If the trial judge relied on a generalized expectation, was the expectation reasonable? (3) Did the trial judge rely on a generalized expectation as itself a conclusive and indisputable fact?

The first question asks whether the trial judge relied on a generalized expectation in their reasoning process. If the appellate court determines that the judge relied on a generalized expectation, the analysis will proceed to the second question. Where a judge has not relied on any generalized expectation, for example where the judge assessed the evidence with reference to other accepted evidence or facts from the trial, the review for potential error under the framework ends. At this stage of the analysis, the appellate court is not identifying any error. It is not an error of law per se for a judge to rely on a generalized expectation as a logical benchmark to assess the evidence; rather, it is a well‑recognized and necessary part of the judicial fact‑finding process. In answering this first question, the appellate court is simply determining what the trial judge really decided, why the judge decided that way, and whether there is a basis for further scrutiny. This is a highly case‑dependent inquiry — an appellate court must assess whether the reasons, read as a whole and in context of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. Appellate courts must not finely parse the trial judge's reasons in search for error.

If the trial judge relied on a generalized expectation, the second question then asks whether the expectation was reasonable. It is an error of law for a judge to rely on an unreasonable generalized expectation to assess the evidence. Unreasonable generalized expectations masquerading as common sense or collective human experience are not a legitimate basis on which to assess and understand the evidence in a criminal trial. A standard of reasonableness imparts a measure of objectivity and community consensus in shaping the boundaries of a judge's reliance on common sense and human experience to make decisions, ensuring that triers of fact do not rely on generalized expectations that are inaccurate or unreliable. It also recognizes that as society evolves, its understanding of what is reasonable may change. Public confidence in the administration of justice and the judicial fact‑finding process require that appellate courts be able to intervene where trial judges employ generalized expectations that are not a reasonably accurate reflection of what is true in most circumstances and are not a reliable benchmark to assess the evidence. However, where a trial judge relies on a reasonable generalized expectation, an appellate court may not interfere with the judge's assessment of the evidence based on that expectation just because it would have come to a different conclusion.

Appellate review for legal error should extend to the reasonableness of any generalized expectation relied on by the trial judge. The categories of generalized expectations that may not, as a matter of law, be relied on should not be limited to what might be considered myths or stereotypes or to the context of sexual assault trials. Such a narrow approach creates artificial distinctions in the law, unduly limits the important role of appellate courts in the criminal justice system, and risks undermining public confidence in the administration of justice. On a conceptual level, the underlying rationale for reliance on a generalized expectation is the same, regardless of whether the generalized expectation can be considered a myth, a stereotype, or something else. There is no principled basis to separate particular categories of generalized expectations for distinct treatment. Such an exercise invites artificial distinctions in the law with no clear boundaries and fails to account for generalized expectations that cannot accurately be classified as myths or stereotypes about complainants in sexual assault cases yet would nonetheless be unacceptable to rely on in a criminal trial.

All reliance on unreasonable generalized expectations should be recognized as an error of law. Support for this is found in the relevant policy reasons for why appellate courts defer to trial judges' factual findings on one hand, and the wide discretion for appellate intervention on questions of law on the other hand. Appellate courts defer to trial judges on factual matters for at least three overarching policy reasons: (1) to limit the number, length, and cost of appeals; (2) to promote the autonomy and integrity of trial proceedings; and (3) to recognize the expertise of the trial judge and the judge's advantageous position to assess the evidence. Reviewing unreasonable expectations on a standard of correctness would have a limited impact on those policy considerations. Concerns about preserving public resources or promoting the autonomy and integrity of trials are secondary to the rights of the accused in a criminal proceeding, in light of the interests at stake and Parliament's decision to provide broad access to a first level of appeal. It is the recognition of the trial judge's expertise and advantageous position that forms the central basis for appellate deference on factual matters in the context of criminal proceedings; however, trial judges are not more experienced or in a more advantageous position than appellate judges in identifying a reasonable generalized expectation based on common sense or human experience, as the basis for the general reliability of such expectations is that they are common or the shared experience of the entire community.

The primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. They therefore maintain a broad scope of review on questions of law, which require clear and consistent answers in order to maintain public confidence in the administration of justice. Any approach to appellate review that dilutes the important role of appellate courts would do significant damage to the criminal justice system. The characterization of an issue as a question of law is also significant to the grounds for appellate jurisdiction in criminal matters, especially the limited grounds for Crown appeals from acquittals. If the reasonableness of a generalized expectation were treated as a question of fact, then the Crown would not be able to appeal from acquittals that rest on generalized expectations that do not amount to myths or stereotypes, no matter how unreasonable or contrary to society's collective expectations. The need to preserve public confidence in the administration of justice mandates that verdicts in criminal cases not be founded on assumptions that are not reasonably accurate reflections of what is true in most circumstances. The correctness standard requires setting out expressly an alternative line of reasoning and demonstrating why it should be followed. Properly applied, correctness demands greater conceptual clarity and analytical rigour. By contrast, the palpable and overriding standard of review can be misused to generate a decision‑making black box that facilitates ad hoc decision‑making, whereby if the Court of Appeal agrees with what the trial judge has done, it shows deference, but if it prefers another outcome, it labels the trial judge's decision as a palpable and overriding error and substitutes its preferred outcome.

Finally, the third question asks whether the judge relied on a generalized expectation as itself a conclusive and indisputable fact. Trial judges have considerable latitude to rely on reasonable general expectations as a logical benchmark in assessing the evidence, and an appellate court may not interfere with the judge's assessment of the evidence just because it would have come to a different conclusion. However, there is an important limit on the use of even a reasonable generalized expectation: the trial judge cannot treat the generalized expectation as itself a conclusive and indisputable fact, such that the judge ignores or forecloses their mind to the evidence. This is because people may always act contrary to a generalized expectation of what common sense or human experience would ordinarily anticipate, and therefore it is the trial judge's duty to determine on the evidence what really happened. Generalized expectations based on human experience and common sense are only one consideration, which assist with interpreting the evidence, but the focus must remain on the evidence. It is an error of law for a judge to fail to consider all of the evidence on the ultimate issue of guilt or innocence, or to make a factual conclusion in the absence of evidence. Where a judge relies on a generalized expectation as itself a factual conclusion, what the judge is really doing is taking judicial notice, which is subject to a stringent test — a standard that will rarely, if ever, be met by a generalized expectation about people due to the variability of human experience and behaviour. And where a factual conclusion is based neither on the evidence, nor on judicial notice, then it is speculation, which is an error of law.

Applying these principles to the cases at hand, the appeals should be allowed and the convictions restored. In K's case, under the framework's first question, the trial judge relied on a generalized expectation about the likelihood of a woman being mistaken about the feeling of vaginal penetration. Under the framework's second question, it is a reasonable generalized expectation about general human perception that a woman is unlikely to be mistaken about the feeling of vaginal penetration, as a sexual act of this nature would have a profound and traumatic impact on the bodily integrity of an individual, and ordinary people would not generally require special knowledge to assess this sort of evidence. Under the framework's third question, the trial judge did not treat this as an indisputable fact but instead used it as a benchmark to assess the complainant's evidence in light of the totality of the evidence. There was therefore no basis for the Court of Appeal to intervene.

In T's case, the Court of Appeal wrongly identified the trial judge as having relied on a generalized expectation regarding the first two assumptions, where the latter was actually assessing the whole of the evidence; this led the Court of Appeal to move beyond its role and reweigh the evidence. In respect of the third assumption, the trial judge did err by relying on an unreasonable expectation about how people ordinarily behave after a consensual sexual encounter. Under the framework's second question, it is unreasonable to expect any logical connection between an individual waiting for their sexual partner to enter a home and the consensual or non‑consensual nature of the preceding encounter. Nevertheless, this error of law was so harmless or minor that it could not have had any impact on the verdict, because the judge's verdict clearly turned on her favourable assessment of the complainant's credibility, as well as her complete rejection of T's testimony as inconsistent with the events and contrived to explain away the complainant's injuries.

Cases Cited

By Martin J.

Overruled: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107; R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289; R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286; R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433; referred to: R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. J.J., 2022 SCC 28; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Kirkpatrick, 2022 SCC 33; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Noble, [1997] 1 S.C.R. 874; R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405; Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433.

By Rowe J.

Overruled: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433; considered: R. v. Quartey, 2018 SCC 59, [2018] 3 S.C.R. 687; R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107; referred to: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; Graat v. The Queen, [1982] 2 S.C.R. 819; R. v. Mohan, [1994] 2 S.C.R. 9; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405; R. v. Samaniego, 2022 SCC 9; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; Schuldt v. The Queen, [1985] 2 S.C.R. 592; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Marquard, [1993] 4 S.C.R. 223; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Osolin, [1993] 4 S.C.R. 595.

Statutes and Regulations Cited

• Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125, ss. 5, 19.
• Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38, preamble.
• Canadian Charter of Rights and Freedoms, s. 11(c), (d).
• Criminal Code, R.S.C. 1985, c. C‑46, ss. 273.1(1) "consent", (2), 273.2, 274, 275, 276, 278.1 to 278.91, 686(1)(a), (b)(iii).
• Criminal Code, S.C. 1953‑54, c. 51, s. 131(1).

Authors Cited

Benedet, Janine. "Judicial Misconduct in the Sexual Assault Trial" (2019), 52 U.B.C. L. Rev. 1.

Benedet, Janine, and Isabel Grant. "Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues" (2007), 52 McGill L.J. 515.

Cochran, Patricia. Common Sense and Legal Judgment: Community Knowledge, Political Power, and Rhetorical Practice. Montréal: McGill‑Queen's University Press, 2017.

Coughlan, Steve. Criminal Procedure, 4th ed. Toronto: Irwin Law, 2020.

Dufraimont, Lisa. "Current Complications in the Law on Myths and Stereotypes" (2021), 99 Can. Bar Rev. 536.

Dufraimont, Lisa. "Myth, Inference and Evidence in Sexual Assault Trials" (2019), 44 Queen's L.J. 316.

Ehrlich, Susan. "Perpetuating — and Resisting — Rape Myths in Trial Discourse", in Elizabeth A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women's Activism. Ottawa: University of Ottawa Press, 2012, 389.

Hill, S. Casey, David M. Tanovich and Louis P. Strezos. McWilliams' Canadian Criminal Evidence, 5th ed. Toronto: Thomson Reuters, 2013 (loose‑leaf updated December 2023, release 5).

Oxford English Dictionary (online: www.oed.com), "myth".

Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.

Koshan, Jennifer. "Marriage and Advance Consent to Sex: A Feminist Judgment in R v JA" (2016), 6 Oñati Socio‑legal Series 1377.

Lederman, Sidney N., Michelle K. Fuerst and Hamish C. Stewart. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. Toronto: LexisNexis, 2022.

Randall, Melanie. "Sexual Assault Law, Credibility, and 'Ideal Victims': Consent, Resistance, and Victim Blaming" (2010), 22 C.J.W.L. 397.

Tanovich, David M. "Regulating Inductive Reasoning in Sexual Assault Cases", in Benjamin L. Berger, Emma Cunliffe and James Stribopoulos, eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg. Toronto: Thomson Reuters, 2017, 73.

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Appeals

APPEAL from a judgment of the British Columbia Court of Appeal (Tysoe, Stromberg‑Stein and Marchand JJ.A.), 2022 BCCA 18, [2022] B.C.J. No. 90 (Lexis), 2022 CarswellBC 102 (WL), setting aside the conviction entered by Tammen J., 2020 BCSC 1480, [2020] B.C.J. No. 2418 (Lexis), 2020 CarswellBC 3779 (WL), and ordering a new trial. Appeal allowed.

APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Willcock and Voith JJ.A.), 2022 BCCA 345, 419 C.C.C. (3d) 187, 84 C.R. (7th) 314, [2022] B.C.J. No. 1943 (Lexis), 2022 CarswellBC 2858 (WL), setting aside the conviction entered by Phillips Prov. Ct. J., 2020 BCPC 306, [2020] B.C.J. No. 2446 (Lexis), 2020 CarswellBC 3826 (WL), and ordering a new trial. Appeal allowed.

Counsel

Susanne Elliott, Christie Lusk and Lauren Chu, for the appellant.

Brent R. Anderson and Christopher Johnson, K.C., for the respondent Christopher James Kruk.

Richard S. Fowler, K.C., and Eric Purtzki, for the respondent Edwin Tsang.

Sarah Clive, for the intervener the Attorney General of Alberta.

Gregory P. DelBigio, K.C., and Daniel J. Song, K.C., for the intervener the Independent Criminal Defence Advocacy Society.

Breana Vandebeek, for the intervener the Criminal Lawyers' Association (Ontario).

Mark Iyengar and Benjamin Reedijk, for the intervener the Trial Lawyers Association of British Columbia.

Hugo Caissy and Myralie Roussin, for the intervener Association québécoise des avocats et avocates de la défense.

Megan Stephens, Humera Jabir and Roxana Parsa, for the interveners the West Coast Legal Education and Action Fund Association and the Women's Legal Education and Action Fund Inc.

Reasons for Judgment

Reasons for Judgment: (paras. 1 to 127)

Martin J. (Wagner C.J. and Côté, Kasirer, Jamal and O'Bonsawin JJ.)

Concurring Reasons: (paras. 128 to 249)

Rowe J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

The judgment of Wagner C.J. and Côté, Martin, Kasirer, Jamal and O'Bonsawin JJ. was delivered by

Martin J. —

I. Introduction

1These appeals in two sexual assault matters concern the standard for appellate intervention with respect to a trial judge's credibility and reliability findings in a criminal trial and the appropriate role of common sense when assessing the evidence of witnesses. The respondents ask this Court to recognize a novel rule referred to as the "rule against ungrounded common-sense assumptions". A breach of this proposed rule would provide a new, stand-alone basis for correctness review of credibility and reliability assessments whenever an appellate court determines that a trial judge has relied on a common-sense assumption that was not grounded in the evidence. This significant departure from established standards of review in respect of credibility and reliability assessments in criminal cases has been applied by some appellate courts — often in sexual assault cases that turn on the competing accounts of the accused and the complainant.

2For the reasons provided below, no such change to the law is warranted, and I decline to recognize the rule against ungrounded common-sense assumptions as giving rise to an error of law. The current standards under which appellate courts review trial judgments are well-designed, long-established, and promote the fair assessment of testimony. There is no need to fashion a new rule of law against any assumption not supported by particular evidence in the record to strive for what existing rules already accomplish. Furthermore, the proposed rule is not a coherent extension of existing errors of law pertaining to myths and stereotypes against sexual assault complainants. Adopting it would undercut the functional and flexible approach to appellate intervention and create mischief across the entire criminal law.

3The faulty use of common-sense assumptions in criminal trials will continue to be controlled by existing standards of review and rules of evidence. In some cases, a trial judge's use of common sense will be vulnerable to appellate review because it discloses recognized errors of law. Otherwise, like with other factual findings, credibility and reliability assessments — and any reliance on the common-sense assumptions inherent within them — will be reviewable only for palpable and overriding error. This standard is better equipped to the task than the new error of law the respondents propose.

4In both cases before us, the Court of Appeal for British Columbia overturned the sexual assault convictions on the basis of alleged errors of law in the trial judges' credibility and reliability assessments. Using the rule against ungrounded common-sense assumptions, the Court of Appeal found that the trial judges erred in law by making assumptions about human behaviour not grounded in the evidence. Having rejected this new error of law, I would assess the trial judges' findings using the proper standard of palpable and overriding error. I conclude that they made no such errors in their credibility and reliability findings. In the result, I would allow both appeals and restore the convictions.

II. Background

A. Mr. Kruk

5The respondent Christopher James Kruk was charged with sexual assault based on an allegation of non-consensual penile-vaginal penetration. The main issue at trial was whether the sexual activity occurred, which depended almost entirely upon the trial judge's assessment of the credibility of Mr. Kruk and the reliability of the complainant.

6Mr. Kruk found the complainant intoxicated, lost, and distressed one night in downtown Vancouver. He decided to take her to his house, and connected with the complainant's parents by phone. The complainant did not remember much of what happened next, but she testified that she woke up with her pants off and Mr. Kruk on top of her with his penis inside her vagina. Mr. Kruk denied this, testifying that after the complainant spilled a glass of water on herself and went to his room to change, he found her passed out on his bed with her pants around her ankles. He said that when he tried to wake her, she was startled and must have assumed the worst, because she kicked off her pants and began running around the house in a panic.

7The trial judge found Mr. Kruk guilty of sexual assault. He did not believe Mr. Kruk and rejected his evidence on multiple points because of material inconsistencies in his testimony. Specifically, the trial judge rejected Mr. Kruk's explanation of the complainant's state of undress when she awoke, and "flatly rejected" his claim that he contacted the complainant's family to get her home safely. In turn, the trial judge considered the complainant's account to be largely unreliable due to her intoxication and "massive gaps in her memory" (para. 48). However, the trial judge accepted her evidence on the core of the sexual assault allegation — that she had felt Mr. Kruk's penis inside of her vagina.

8The trial judge also held there was important circumstantial evidence consistent with a sexual encounter, providing further reason to accept the complainant's account and reject Mr. Kruk's. At one point while the complainant was in Mr. Kruk's bedroom, he had taken off all his clothes and put on only a pair of swim trunks. Both parties were found partially undressed when the complainant awoke. The trial judge also found that Mr. Kruk had lied to police about wearing the swim trunks.

9The Court of Appeal unanimously overturned Mr. Kruk's conviction and ordered a new trial. The court observed that although trial judges can rely on personal life experiences to assess the credibility of witnesses, they "must be careful . . . to 'avoid speculative reasoning that invokes « common-sense » assumptions that are not grounded in the evidence or appropriately supported by judicial notice'" (2022 BCCA 18, at para. 48). The court found that the trial judge had improperly relied on the assumption that it is "extremely unlikely that a woman would be mistaken about that feeling [of penile-vaginal penetration]" (para. 68). The court held this assumption engaged "questions of neurology, physiology and psychiatry" and was not the "proper subject of judicial notice" (para. 67).

(1) Trial Decision, 2020 BCSC 1480

The trial judge found Mr. Kruk guilty of sexual assault, concluding that the complainant's evidence on the core issue — penile-vaginal penetration — was reliable despite her intoxication. The judge rejected Mr. Kruk's explanation for the complainant's state of undress as "improbable in the extreme" and found he had lied to police about material facts.

(2) British Columbia Court of Appeal Decision, 2022 BCCA 18

The Court of Appeal overturned the conviction, finding the trial judge erred in law by relying on the assumption that it is extremely unlikely a woman would be mistaken about the feeling of penile-vaginal penetration. The court held this constituted speculative reasoning not grounded in evidence.

B. Mr. Tsang

10The respondent Edwin Tsang was charged with sexual assault based on alleged non-consensual fellatio, digital vaginal and anal penetration, and penile-vaginal penetration. Although the parties' accounts of what sexual activity had happened also diverged, the main issue was consent, which primarily turned on the credibility of Mr. Tsang and the complainant.

11The complainant and Mr. Tsang met at a music festival she attended with her friend, and the three subsequently went to an after-party at a club in downtown Vancouver, where they danced and drank. Mr. Tsang then offered to drive the complainant home, and on the way, they stopped in a parking lot where the alleged assault occurred.

12The morning after the alleged assault, the complainant was examined by a sexual assault physician examiner, who also testified as an expert at trial. The examiner documented extensive injuries to the complainant's genital area, including a tear in her genital opening only typically seen after forced sexual activity.

13The trial judge found Mr. Tsang guilty of sexual assault. She acknowledged that the complainant had consented to getting into the backseat of the car and to kissing, but rejected Mr. Tsang's evidence that the subsequent sexual acts had been consensual, which she found to be at odds with the evidence as a whole.

14The trial judge made three factual findings that became crucial on appeal. First, it was not believable that the complainant had asked Mr. Tsang to spank her and was "gearing up for rough sex" (para. 126). Second, Mr. Tsang's explanation that they did not have vaginal intercourse because he could not find a condom was contrived and "contrary to the level of control he conveyed about that evening and in court" (para. 129). Third, the fact that Mr. Tsang drove off as soon as the complainant exited his car was more consistent with a non-consensual sexual encounter.

15The Court of Appeal unanimously overturned Mr. Tsang's conviction and ordered a new trial. The court found that the trial judge had made three assumptions about human behaviour that had impacted her assessment of the evidence: (1) a person would not ask to be spanked while engaging in sexual foreplay "out of the blue"; (2) a controlling person would not refrain from engaging in vaginal intercourse because of the absence of a condom; and (3) a person would not abruptly and unceremoniously drive away from the person with whom they had engaged in consensual sex.

(1) Trial Decision, 2020 BCPC 306

The trial judge convicted Mr. Tsang of sexual assault, rejecting his evidence as contrived and finding the complainant credible. She found that Mr. Tsang orchestrated and controlled the events throughout the night.

(2) British Columbia Court of Appeal Decision, 2022 BCCA 345, 419 C.C.C. (3d) 187

The Court of Appeal overturned the conviction, identifying three unfounded assumptions in the trial judge's reasoning and holding that these constituted errors of law reviewable on a correctness standard.

III. Analysis

16In both Mr. Kruk and Mr. Tsang's cases, the British Columbia Court of Appeal reviewed the trial judges' credibility and reliability findings on a standard of correctness. In line with this approach, the respondents now ask this Court to recognize the proposed rule against ungrounded common-sense assumptions as giving rise to an error of law.

17These appeals are part of a broader pattern in which special rules have been proposed for the assessment of credibility and reliability in sexual assault cases.¹ The rule against ungrounded common-sense assumptions is before this Court for the first time, and the question of whether it should be recognized as an error of law must be answered with awareness of its potential scope and its interaction with existing rules of law.

18These reasons proceed as follows. First, I explore the origins and treatment of the proposed rule. Next, I explain why it should not be recognized as giving rise to an error of law. Finally, applying the correct legal principles to both cases on appeal, I find that no palpable and overriding errors were made by the trial judges in their credibility and reliability findings.

A. The Proposed Rule Against Ungrounded Common-Sense Assumptions

19The proposed rule against ungrounded common-sense assumptions originated in a trio of key cases — R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289; R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286; and Roth — and has been most clearly and recently articulated in R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433.

20In Perkins, the Ontario Court of Appeal held that the trial judge's finding that a "virile young man with a full erection bound on having a climax would not lose his erection" was not the use of acceptable common sense, but was instead a conclusion reached outside the evidence and beyond the proper scope of judicial notice.

21In J.C., the trial judge had found the accused guilty of sexual assault and extortion, accepting the complainant's testimony that the accused had threatened to post a sexual video recording of her online if she did not continue her sexual relationship with him. On appeal, the accused alleged that the trial judge had relied on impermissible reasoning.

22The Ontario Court of Appeal unanimously allowed the appeal, set aside the convictions, and ordered a new trial. The court theorized a new approach to credibility and reliability assessments in sexual assault cases that consisted of two separate but interrelated rules: the new "rule against ungrounded common-sense assumptions", and the related "rule against stereotypical inferences".

23The appeals before this Court are therefore part of a body of recent jurisprudence that seeks to transform how credibility and reliability findings in sexual assault cases are reviewed on appeal. This jurisprudence undertakes three significant legal innovations. First, it introduces a novel ground of error of law — the rule against ungrounded common-sense assumptions. Second, it expands the concept of "stereotype" to apply to all assumptions regarding both complainants and accused persons. Third, it subjects credibility and reliability findings that rely on such assumptions to correctness review.

24Mindful of the context in which many of these cases have been argued, at the core of this novel approach is an explicit analogy between the historic treatment of myths and stereotypes undermining the credibility of sexual assault complainants and the principles to be applied when assessing the testimony of accused persons.

25The parallel treatment proffered in this line of cases is at the forefront of the cases on appeal. At para. 25, the Court of Appeal in Mr. Tsang's case relied upon a lengthy extract from J.C. that included the idea that it is "equally wrong" to invoke this historical set of myths and stereotypes against complainants as it is to invoke ungrounded common-sense assumptions against accused persons.

26The proposed rule against ungrounded common-sense assumptions thus represents a radical departure from how appellate courts have typically approached credibility and reliability assessments, especially in the context of sexual assault. Crucially, the rule transformed all factual findings that draw on common-sense inferences about human behaviour into potential errors of law — without regard to whether the assumption in question relates to protected characteristics or groups, as myths and stereotypes do, and without regard to whether the assumption is actually erroneous in fact.

27For the following reasons, the proposed rule against ungrounded common-sense assumptions should not be recognized as giving rise to an error of law.

28First, in the sexual assault context, the rule disregards the distinct nature of myths and stereotypes about complainants, transforming all factual generalizations regardless of their nature into errors of law and imposing a false symmetry to the circumstances of accused persons. Second, the proposed rule is incompatible with the proper approach to testimonial assessment and undermines the established standards of appellate review.

B. The Proposed Rule Against Ungrounded Common-Sense Assumptions Should Not Be Adopted

(1) The Proposed Rule Is Not a Logical Extension of the Prohibition Against Myths and Stereotypes About Sexual Assault Complainants

(a) The History of Myths and Stereotypes Against Complainants

29As noted, the proposed rule against ungrounded common-sense assumptions builds on the well-established prohibition against the use of myths and stereotypes when assessing the testimony of sexual assault complainants. In the ordinary course, credibility and reliability assessments are reviewable for palpable and overriding error, absent a recognized error of law. The prohibition against myths and stereotypes is one such error of law.

30With respect, this impulse towards symmetry and formally identical treatment is unwarranted. It reflects a misunderstanding of the distinct body of law associated with myths and stereotypes in sexual assault cases, which developed in a particular historical context to protect complainants alongside legislative reforms.

31The 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.

32In the past, multiple legal barriers operated to ensure that the testimony of sexual assault complainants — who, at the time, were almost exclusively women — was treated as inherently unreliable. The term "myths and stereotypes" was coined to describe how the exceptional procedural protections historically afforded to those accused of sexual assault discriminated against complainants and made the law complicit in sexual violence against women.

33Before 1983, "rape" was a main type of sexual offence: it criminalized non-consensual penetration of a penis into a vagina and was thus understood as a gendered crime committed by men against women. Under the express terms of the prohibition, a married woman could not be raped by her husband as she was deemed, by her status as a wife, to have forfeited her legal capacity to refuse unwanted sexual intercourse.

34Special evidentiary rules also governed the testimony of sexual assault complainants. The statutory corroboration requirement obliged judges to instruct juries that it was dangerous to convict the accused of a sexual offence based only on the testimony of a complainant (Criminal Code, S.C. 1953-54, c. 51, s. 131(1)); corroboration requirements were abolished by An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125, ss. 5, 19.

35By virtue of these rules, not only were women as a group seen as lacking credibility, there was a construct about the specific subset of women who could be believed. Negative social attitudes about women were often used to differentiate "real" rape victims from women suspected to be concocting false allegations out of self-interest or even revenge. Prejudicial beliefs about women who were Indigenous, women with disabilities, or women engaged in sex work were used to discount their testimony further.

36This Court has repeatedly recognized the prevalence of myths and stereotypes about sexual assault complainants, some of which include the following.

37Myths and stereotypes about sexual assault complainants capture widely held ideas and beliefs that are not empirically true — such as the now-discredited notions that sexual offences are usually committed by strangers to the victim or that false allegations for such crimes are more likely than for other offences. Myths, in particular, convey traditional stories and worldviews about what, in sexual offences, was and is "normal" and what is not — and thus what a true victim looks like and what they do not look like.

38Overall, this legal backdrop reflected a time in which less was known about the prevalence of sexual violence and its lifelong harms. Eventually, Parliament, the courts, academics, and the public came to understand that the previous legal rules and the inaccurate, outdated, and inequitable social attitudes they represented impeded the equal treatment of sexual assault complainants and, hence, the truth-seeking function of the trial.

39New Criminal Code provisions were drafted replacing the former offence of rape with a new offence of sexual assault, and the marital rape exemption was repealed — reflecting the reality that while women continue to make up the vast majority of sexual assault complainants, the offence of sexual assault can be perpetrated by and against people of all genders. Consent was expressly defined in the Criminal Code, and the definition of "consent" and the "honest but mistaken belief in consent" defence were amended to protect against particular myths and stereotypes.

40The significant legislative changes in this area of law were made with a view to protecting the rights of women and children given their particular vulnerability to sexual violence. In the preamble to the Act that amended s. 276 of the Code post-Seaboyer and reformed the definition of consent to sexual activity, Parliament explicitly focused on combatting "the prevalence of sexual assault against women and children" and the problem of "societal attitudes that tolerate sexual violence".

41In turn, several of the myths and stereotypes outlined above have now been jurisprudentially condemned as errors of law. For example, it is prohibited for a trial judge to rely on notions such as: delay in a complainant's disclosure of a sexual assault, alone, undermines the credibility of the disclosure (D.D.; R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114); a complainant's "failure to resist" physical sexual contact implies consent; women fabricate sexual assault allegations; or that women who previously consented to sexual activity with the accused are more likely to have consented to the alleged sexual assault.

42The legislative and jurisprudential treatment of these issues reflects a collective understanding that courts should strive to eradicate myths and stereotypes from their decisions because they threaten the rights of complainants and undermine the truth-seeking function of trials. Today, sexual offences remain underreported and continue to occur mostly against women and children. There remains a pressing need to continue to protect complainants from prejudiced reasoning.

43This Court has repeatedly held that "myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts' truth-finding function" (A.G., at para. 2). A trial is a truth-seeking process, and reliance on myths and stereotypes distorts the truth. In Mills, this Court explained that myths and stereotypes about sexual assault victims hamper the search for truth by introducing discriminatory notions into the fact-finding process.

44All of this history puts into perspective the distinct reasons why relying on myths and stereotypes to discredit sexual assault complainants amounts to an error of law — as opposed to being an ordinary factual finding reviewable for palpable and overriding error. The very reason this error of law emerged was to prevent the accused from discrediting complainants' testimony on unwarranted, discriminatory grounds rooted in a history of treating women as inherently less credible.

45In 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 body of law in ways that are not warranted by its purpose and that will generate harmful consequences.

(b) The Proposed Rule Should Not Be Adopted as a Corollary to the Prohibition Against Myths and Stereotypes

(i) The Proposed Rule Disregards the Distinct Character of Myths and Stereotypes

46The types of assumptions captured by the proposed rule do not share the distinct discriminatory character of myths and stereotypes relating to sexual assault complainants, which form a unique category of legal error created to be explicitly remedial in nature. As noted in Find, this Court has been willing to accept the prevailing existence of myths and stereotypes about sexual assault complainants as a matter of law based on social science evidence.

47Unlike the proposed rule, the authorities that target sexual assault myths and stereotypes remove from the law specific erroneous assumptions and notions that formerly distorted judicial reasoning and fact-finding on a widespread basis. These myths and stereotypes unfairly undermine the perceived credibility of a specific category of witness before the evidence has even been heard, effectively importing discrimination into the criminal courtroom.

48As noted above, there is significant overlap between the rule against common-sense assumptions and the related rule against stereotypical reasoning articulated in J.C.: both rules bar trial judges from using "stereotypes" in their assessments of credibility. However, in J.C. and as adopted by the British Columbia Court of Appeal, the term "stereotype" not only demarcated an error of law, but was also expanded to encompass any ungrounded generalizations about human behaviour that affected the outcome of the case.

49Generally speaking, all ungrounded assumptions about human behaviour, including stereotypes, share two characteristics. First, they take a general proposition and apply it to a specific individual, foregoing any assessment of that person's unique characteristics or circumstances. Second, that general proposition is inaccurate or untrue, either in all cases or as applied to that specific individual.

50The discriminatory character of stereotypes is made plain from our jurisprudence's understanding of stereotypes about sexual assault complainants. Reliance on such stereotypes was recognized as an error of law for the very purpose of eliminating discrimination against women and promoting their dignity and equality within the justice system.

51The problem with the proposed rule against ungrounded common-sense assumptions is that it fails to appreciate this crucial dimension. It instead lumps together the sorts of pernicious, discriminatory stereotypes that both the courts and Parliament have worked to condemn and correct with more benign generalizations that, while they may be factually wrong, have nothing to do with inequality of treatment.

52In J.C., for example, the Ontario Court of Appeal found that the trial judge's characterization of the accused's evidence as mechanical, rehearsed, and politically correct relied on "stereotype" and therefore amounted to an error of law. In Roth, although the British Columbia Court of Appeal rejected the submission that the trial judge had relied on stereotypes about male behaviour, it held that the trial judge's observation that a powerlifter would have the physical stamina to engage in sexual activity was speculative and not grounded in the evidence.

53The legislative shift towards a more gender-neutral understanding of sexual violence compels courts to also be sensitive to the fact that complainants in sexual assault cases come from all walks of life. By eliminating the inherently gendered crime of rape, Parliament signalled that sexual assault is no longer meant to be limited to the male accused, female complainant paradigm. Stereotypes about complainants in sexual assault cases can take many forms.

54In turn, all sexual assault cases have the potential to engage a broad range of stereotypes beyond those about female complainants. In Barton, for example, this Court recognized specific myths and stereotypes that apply to Indigenous women, which may in turn hinder proper assessments of their credibility and reliability.

55In addition to its unsound foundations, the proposed rule interacts particularly poorly with sexual offence cases given the carefully crafted rules that now govern the assessment of a complainant's testimony. The Court of Appeal in Mr. Tsang's case acknowledged the reality that for certain common-sense assumptions about sexual activity to be "grounded" in the evidence, evidence of a "complainant's history of sexual activity" would have to be adduced.

56The proposed rule thereby drastically expands the scope of permissible questioning into a complainant's sexual history, effectively requiring both parties to apply, pursuant to Seaboyer (at p. 619) or s. 276 of the Code, to adduce "other sexual activity" evidence that may not otherwise be relevant to the main issues in the case or permitted to make its way into the trial at all. It opens a back door to prohibited twin-myth reasoning.

57In sum, the proposed rule against ungrounded common-sense assumptions cannot be understood as a logical extension of legal rules against stereotyping. To the extent it conflates stereotyping with all assumptions about human behaviour, it runs off course. The concept of a stereotype is not closed and no doubt will continue to evolve in future cases: the closer an error is to the types of myths and stereotypes that have been condemned, the more likely it is to amount to an error of law.

(ii) The Accused's Rights Remain Protected

58The respondents argue that the proposed rule against ungrounded common-sense assumptions should be adopted in sexual assault cases out of fairness to the accused. This argument, too, must be rejected. There are crucial legal protections explicitly designed to ensure fairness to the accused that find their source in their own robust body of law.

59The overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown's burden of proof, must always govern the fact-finding process. The presumption of innocence — a "hallowed principle lying at the very heart of criminal law" (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 119) — requires the Crown to prove each element of an offence beyond a reasonable doubt.

60Various protections relating to the assessment and weighing of evidence flow from the presumption of innocence and the right to silence. Notably, an accused's silence at trial may not be treated as evidence of guilt, as such reasoning would violate both principles (Noble, at para. 72). Likewise, it is improper to discount the credibility of accused persons on the basis that, because they have heard the case against them, they can tailor their evidence.

61The presumption of innocence also restricts how credibility is assessed in cases of conflicting testimony between defence and Crown witnesses. The analysis of testimony must never be treated as a contest of credibility, and triers of fact need not accept the defence's evidence or version of events in order to acquit (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 23; R. v. W. (D.), [1991] 1 S.C.R. 742).

62Reasonable doubt applies to credibility assessments such that if the evidence the Crown adduced does not rise to the level required of a criminal conviction, an accused cannot be found guilty simply because they are disbelieved (see W. (D.)). Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much — or all — of the accused's evidence is disbelieved.

63Protections like these ensure fairness to the accused and must guide trial judges in assessing testimony. They impose specific prohibitions regarding identifiable forms of improper reasoning. In so doing, they safeguard the accused's fundamental Charter rights. Where full effect is properly accorded to them, further restrictions on how trial judges may assess the credibility and reliability of witnesses are not necessary.

64It must also be emphasized that the concept of myths and stereotypes concerning sexual assault complainants is not unbounded. It has produced a circumscribed set of legal rules that require careful application, close attention to context, and a nuanced understanding of the purpose for which any given piece of evidence is tendered.

65For example, just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial. While it is a myth that women regularly fabricate allegations of sexual assault, it is not an error to consider whether the circumstances of a particular case support the existence of a motive to fabricate (McCraw; Esau).

66Our existing legal framework is sufficient to ensure that the accused's rights remain protected in sexual assault cases. It is vital that the accused's Charter rights be carefully respected, that any evidence the accused gives be properly assessed, and that the concept of myths and stereotypes remain appropriately constrained to its proper scope. However, there is no need to adopt the proposed rule to achieve these goals.

(iii) The Difference Between Factual and Legal Speculation

67The conceptual slippage between stereotyping and generalizing in the jurisprudence of the lower courts illustrates the importance of precisely defining errors of law and keeping them distinct from other factual findings, even erroneous ones. In this vein, brief comment is also warranted in response to the respondent Mr. Tsang's argument that the proposed rule against ungrounded common-sense assumptions should be recognized because it captures "speculation" as an error of law.

68Speculation as an error of law arises where a trial judge has found that certain evidence "creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt" (Wild v. The Queen, [1971] S.C.R. 101, at p. 111). In other words, it is an error of law to fail to distinguish between speculation (which cannot ground reasonable doubt) and an inference reasonably drawn from evidence (which can).

69Although the proposed rule against ungrounded common-sense assumptions has often been invoked in the sexual assault context, its applications extend to all criminal cases. I approach these reasons primarily in the context of sexual assault given that this is the offence immediately before the Court, but nothing in them should be taken as an endorsement of the proposed rule in any other case type.

(2) The Proposed Rule Runs Contrary to Established Standards of Review and Is Counterproductive to Proper Testimonial Assessment

(a) The Role of Common Sense in Evaluating a Witness's Testimony

70With that in mind, another reason why this proposed rule should not be adopted is that it is profoundly incompatible with the established law associated with credibility and reliability findings. The rule is not a cautious or incremental extension of existing principles — it is instead an unwarranted departure from how appellate courts typically treat trial judges' credibility findings.

71First, the proposed rule is incompatible with the often inextricable role common-sense assumptions play in credibility and reliability assessments. Testimonial assessment is largely based on inductive reasoning and the particular circumstances of the case: it requires the trier of fact to make assessments based on probable interpretations of the evidence (R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 111).

72It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, the same court held that triers of fact "must inevitably bring some background understanding of how people behave in drawing inferences from the evidence before them" (para. 8).

73In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of "the way things can and do happen"; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or "inherently improbable" (R. v. Kiss, 2018 ONCA 184, at para. 31).

74Even the proponents of the rule against ungrounded common-sense assumptions accept that common sense is necessary and, to some extent, inevitable, to the task of testimonial assessment. The Court of Appeal in Mr. Kruk's case acknowledged that in "working through the minefield of legal and evidentiary issues, trial judges apply their common sense to the evidence to reach sound verdicts" (para. 2), and indeed, "[r]elying on their life experience to assess the credibility of witnesses is a defining feature of a trial judge's function" (para. 2).

75By prohibiting ungrounded common-sense assumptions, the proposed rule interferes with the necessary recourse to common sense as a part of testimonial analysis. Trial judges are uniquely tasked with assessing the testimony they hear and interpreting the range of possible inferences arising from the evidence. They must be able to rely not only on their judicial experience as fact-finders, but also on their common sense and the generalized expectations it generates about human behaviour. Trial judges will naturally rely on "ungrounded" assumptions about human behaviour in their testimonial assessments and thereby draw on factors that lie outside the immediate record. The judicial function entitles them to do so without requiring extrinsic evidence to support each and every one of their conclusions.

76The proposed rule's rationale is belied by a contradiction inherent in its own logic. It prohibits relying on common sense to introduce new considerations not arising from evidence — while simultaneously acknowledging that common sense can be used as an interpretive aid, which necessarily involves importing considerations arising not from the evidence itself but from a judge's accumulated life experience. It is effectively impossible to draw a clear boundary between using human experience to interpret evidence or draw inferences (which is permissible under the rule) and introducing new considerations into the evidence (which is not).

77According to the rule as described by the majority of the Court of Appeal below in Mr. Tsang's case, impermissible reasoning is: "affected by implicit, unsupported assumptions about 'normal behaviour'" (para. 53); "unsubstantiated, untethered to the evidence and a prejudicial stereotype" (para. 65); "assumptions with respect to human behaviour" (para. 73); "generalizations about normative behaviour [that] did not rest on the evidence" (para. 74); "unfounded" assumptions or "generalizations" (para. 80).

78Given that a trial judge is inevitably bound to rely on a common-sense assumption at some point when assessing a witness's testimony, the ill-defined requirement that such assumptions must be "grounded in evidence" would also compel counsel in criminal cases to lead direct evidence to establish a wide range of notions that are generally true. To return to the example from Mr. Tsang's case, to properly be able to find that people who have just met are unlikely to share drinking glasses at a party, counsel would have to lead expert medical evidence about the general practice of sharing drinking glasses between strangers.

79In sum, the proposed rule is fundamentally unfaithful to the necessary and proper use of common sense when assessing the testimony of witnesses. Worse, the rule also fails to establish any discernable boundary between the permissible and impermissible uses of common-sense assumptions. There is no coherent method to determine what assumptions are sufficiently uncontroversial to be "grounded in the evidence", nor how much evidence is required to "ground" them.

(b) Established Standards of Review for Credibility and Reliability Assessments

80The proposed rule runs contrary to well-established standards of review and would unduly increase the scope of appellate intervention into the credibility and reliability assessments of trial judges. Adopting the rule would compromise the delicate task trial judges undertake when evaluating the evidence of a witness by subjecting their reasons to unjustifiably invasive appellate scrutiny.

81Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses.

82The governing standard of review applicable to findings of credibility and reliability is well established: absent a recognized error of law, such findings are entitled to deference unless a palpable and overriding error can be shown (Gagnon, at para. 10, citing Schwartz v. Canada, [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 74). Credibility and reliability findings typically do not engage questions of law and will therefore be subject to the deferential standard of palpable and overriding error.

83Trial judges have expertise in assessing and weighing the facts, and their decisions reflect a familiarity that only comes with having sat through the entire case. The reasons for the deference accorded to a trial judge's factual and credibility findings include: (1) limiting the cost, number, and length of appeals; (2) promoting the autonomy and integrity of trial proceedings; and (3) recognizing the expertise and advantageous position of the trial judge (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 16-18).

84The unique nature of testimonial assessment also guides how reviewing courts approach their task on appeal. Appellate courts must be mindful of the acute practical difficulties trial judges face in articulating why a particular witness was believed or disbelieved, tasked as they are with interpreting the various impressions and inferences that arise from the evidence (Gagnon, at para. 20; see also R.E.M., at para. 28; G.F., at para. 81). An appellate court should examine a trial judge's reasons in their full context and with a view to the overall result, and not parse them or search for isolated errors.

85The palpable and overriding error standard strikes the appropriate balance between deference to the factual findings of the trial judge and the need for meaningful review of criminal cases on appeal. Although this standard is duly deferential to the trial judge's unique vantage point and expertise, even under this more deferential standard, appellate courts must determine whether the trial judge's findings on credibility and reliability are "the product of an evidence-based and context-specific exercise of judgment by the trial judge" (G.F., at para. 81).

86Invoking the proposed rule, appellate courts have been invited to parse trial reasons, attack generic statements made in the course of credibility assessments, and frame any credibility findings based on human behaviour as impermissible stereotypes or common-sense assumptions untethered to evidence. In Perkins, Cepic, Roth, and J.C., the appeal courts quashed the convictions due to errors in the trial judges' credibility assessments, concluding that the trial judges went beyond allowable common-sense reasoning.

87With respect, the Court of Appeal's decision in Mr. Tsang's case illustrates the microscopic form of appellate review this very Court has cautioned against. The Court of Appeal targeted specific word choices, approving certain formulations of the trial judge's credibility findings while implying that even slightly different word choices would have been erroneous.

88The proposed rule also risks diverting the focus of the trial judge's reasons on plausibility to issues of form over substance, creating a chilling effect against thorough and frank reasons. Under the rule, it would be permissible for a trial judge to find it implausible that x, y, or z would have occurred in the circumstances of the case — but it would be impermissible to plainly state the common-sense premise that underpins the finding of implausibility, for fear that an appellate court would later conclude that the premise was "ungrounded in the evidence".

89This form of appellate review directly cuts against established principles and leads to arbitrariness in outcomes. It does not, in my respectful view, advance the interests of justice. To the extent trial judges are the ones who have heard the evidence, they are best placed to make the complex and multifaceted factual findings that culminate in fair and nuanced credibility assessments. Deference to trial judges' assessments of that evidence and the words they choose to describe it is warranted.

90In general, the introduction of new errors of law has the potential to upset the established balance in relation to credibility and reliability findings. Review based on an error of law may invite a "yes-no" answer measured on a standard of correctness, which opens the door to undue scrutiny of matters properly before the trial judge.

91Overall, the palpable and overriding error standard fosters an appropriately holistic approach to appellate review. As compared to the invasive method associated with the proposed error of law, palpable and overriding error is far better attuned to the deference rightly afforded to trial judges' factual findings, including with respect to credibility and reliability findings.

(3) Summary

92For the reasons outlined above, the proposed rule against ungrounded common-sense assumptions should not be recognized as giving rise to an error of law. The rule is in no way analogous to the body of law protecting sexual assault complainants from myths and stereotypes, nor can it be justified as necessary to ensure fairness to the accused. It also treats any and all factual assumptions drawn in the course of testimonial assessments as errors of law and thereby represents an unjustified departure from well‑established principles governing testimonial assessment and appellate standards of review.

93Without the rule in play, appellate courts are left to rely on the existing and well-established law on assessing a trial judge's credibility or reliability assessments. For the utmost clarity, the applicable framework can be summarized as follows.

94First, where an appellant alleges that a trial judge erroneously relied on a "common-sense" assumption in their testimonial assessment, the reviewing court should first consider whether what is being impugned is, in fact, an assumption. Given the nature of how witnesses give evidence and the need to read the trial judge's reasons as a whole, what might appear to be an assumption on its face may actually be a judge's particular finding about the witness based on the evidence.

95Second, once satisfied that the trial judge did, in fact, rely on an assumption that is beyond the bounds of what common sense and the judicial function support, the reviewing court should identify the appropriate standard of review applicable to the impugned portion of the trial judge's credibility or reliability assessment.

96The standard of review will be correctness if the error alleged is a recognized error of law. Nothing in these reasons should be taken to limit the scope of existing errors of law relating to testimonial assessments that this Court has previously approved. Such errors may include reliance on myths and stereotypes about sexual assault complainants, as well as any improper and incorrect assumptions about accused persons that run contrary to fundamental principles such as the right to silence and the presumption of innocence. Stereotypes based in other forms of inequality of treatment that are analogous to myths and stereotypes about sexual assault complainants may also be recognized as errors of law in future cases. Testimonial assessments may also become vulnerable to correctness review for reasonable apprehension of bias, making a finding of fact for which there is no evidence, and improperly taking judicial notice.

97Absent an error of law, the standard of review will be palpable and overriding error. The reviewing court must first determine whether the erroneous reliance on the assumption is palpable, in that it is "plainly seen", "plainly identified", or "obvious" (see Housen, at paras. 5-6; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp. v. Canada, 2012 FCA 165, 431 N.R. 286, at para. 46). Palpable errors in this context will include, for example, where the assumption in question is obviously untrue on its face, or where it is untrue or inapplicable in light of the other accepted evidence or findings of fact.

98Once a palpable error has been identified, the reviewing court must also find that the erroneous reliance on the 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" (Clark (2005), at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp., at para. 46). If it cannot be shown that the error was palpable and overriding, a trial judge's assessment of credibility or reliability will be entitled to deference and there will be no basis for appellate intervention.

99Given that I have found that a breach of the proposed rule against ungrounded common-sense assumptions should not be recognized as an error of law, many of the assumptions identified in the cases below, including those in the cases before this Court, in fact should have been reviewed for palpable and overriding error.

IV. Application

100Having rejected the proposed rule, I would allow both appeals and restore the convictions. In both cases, the Court of Appeal erred in using the rule against ungrounded common-sense assumptions and reviewing the alleged improper generalizations on a correctness standard. As a result, the court failed to adopt the required contextual and functional review, leading it to overturn the trial judges' decisions without a proper basis to do so.

101With respect, the Court of Appeal's approach in both cases reflects the fundamental problems with the rule against ungrounded common-sense assumptions. The rule invited the court to parse the trial judges' reasons in search of any assumptions drawn in their credibility and reliability assessments. This had the unfortunate effect of misidentifying particular phrases the trial judges used as "assumptions", divorcing those findings from their context and the reasons as a whole.

A. Mr. Kruk

102In Mr. Kruk's case, the Court of Appeal erred in concluding that the trial judge relied on speculative reasoning in accepting the complainant's evidence based on his observation that it "is extremely unlikely that a woman would be mistaken about that feeling [of having a penis inside her]" (trial reasons, at para. 68 (emphasis added)). In context, it is clear that the impugned statement, while perhaps unfortunately worded, was in fact not a generalization at all, but a specific articulation of the trial judge's credibility finding that this particular complainant was not mistaken.

103First, in its analysis of the impugned statement, the Court of Appeal erred in failing to consider the whole of the judge's findings. The court observed that the trial judge had "rejected important parts of Mr. Kruk's evidence" — including his evidence that he had given the complainant's parents his address, that the complainant had kicked off her own pants, and that he had only failed to contact the complainant's mother after a certain point because his phone had died — and that the judge disbelieved Mr. Kruk "when it came to assigning responsibility for the complainant's presence in his bedroom" (2022 BCCA 18, at paras. 58-60).

104In this vein, the Court of Appeal also failed to give due regard to the judge's specific credibility findings respecting Mr. Kruk. Though briefly acknowledged elsewhere, the court's analysis of the trial judge's errors makes no reference to the judge's characterization of Mr. Kruk's explanation that the complainant kicked off her own pants as "improbable in the extreme" and the finding that Mr. Kruk lied to police about an extremely important fact: that he was wearing swim trunks, with nothing underneath them, when the complainant arrived in his home.

105Viewed as a whole and in context, the trial judge did not reject the defence theory because of an assumption that no woman would be mistaken, but rather because he accepted the complainant's testimony that she was not mistaken. Despite her intoxication, he found the complainant's evidence on the material issue of whether there was penile-vaginal penetration to be reliable and therefore sufficient to ground a conviction.

106A functional and contextual reading of this passage of the trial reasons demonstrates that the impugned line was not an assumption or inappropriate "speculation", as the Court of Appeal characterized it, but rather a response to the defence theory advanced in closing submissions: that the complainant, though sincere, was mistaken about the physical sensation of penile‑vaginal penetration due to her intoxication and panic after she awoke, which caused her to assume the worst.

107Even accepting the possibility that the trial judge relied on an assumption in making this finding, the Court of Appeal erred in reviewing that assumption for correctness based on the proposed rule against ungrounded common-sense assumptions. The appropriate standard of review was palpable and overriding error. In this regard, the trial judge bore in mind that, as a matter of common sense, it is extremely unlikely that someone would be mistaken about the feeling of penile‑vaginal penetration — and his conclusion that the complainant was not mistaken about this particular sensation was, on the whole of the evidence, a reasonable one.

108The Court of Appeal also considered that the trial judge's conclusion about the complainant's perception of penile‑vaginal penetration was not the proper subject of judicial notice, as it engaged questions of "neurology (the operation of the body's sensory system), physiology (the impact of alcohol on perception, memory and the body's sensory system) and psychiatry (the impact of alcohol and/or trauma on perception and memory)" (para. 67). With respect, the court's analysis on this point overcomplicates what was a straightforward exercise of common sense by the trial judge.

109Where a person with a vagina testifies credibly and with certainty that they felt penile‑vaginal penetration, a trial judge must be entitled to conclude that they are unlikely to be mistaken. While the choice of the trial judge to use the words "a woman" may have been unfortunate and engendered confusion, in context, it is clear the judge was reasoning that it was extremely unlikely that the complainant would be mistaken about the feeling of penile‑vaginal penetration because people generally are not mistaken about having their bodily integrity violated in such a manner.

B. Mr. Tsang

110In Mr. Tsang's case, the Court of Appeal erred in concluding that the judge's assessment of the accused and the complainant's credibility was fatally affected by three material unfounded assumptions about normal behaviour: a person would not ask to be spanked "out of the blue"; a controlling person would not refrain from engaging in vaginal intercourse because they could not find a condom; and a person would not abruptly drive away from someone with whom they had just had consensual sex.

111As a general observation, just as was the case in Mr. Kruk's appeal, the Court of Appeal erred by not considering the whole of the trial judge's reasons when it conducted its review. At the outset of its analysis, the court stated at para. 29 that the "focus of [their] attention" was on the trial judge's assessment of the complainant's and Mr. Tsang's credibility set out at paras. 117-58 of her reasons. While the identified paragraphs comprise the whole of the trial judge's credibility analysis, her other findings necessarily informed her credibility findings, and must also inform appellate review of those findings.

112This is especially apparent from the court's finding that the trial judge had rejected Mr. Tsang's evidence about what happened in the car, where the alleged assault occurred, based on unfounded assumptions. The court explicitly held that the judge's prior finding that Mr. Tsang was untruthful about what had occurred at the after-party at the club was "bound to have coloured her assessment of [Mr. Tsang's] evidence about what happened later", but the court was unwilling to find that the complainant's account was corroborated by that earlier finding.

113The court also segmented the complainant's evidence. It acknowledged the judge's finding that the complainant had no interest in Mr. Tsang while at the club, but then characterized the "sexual foreplay" that occurred in the car as a "marked departure from her previous behaviour", noting that the "complainant's resistance to [Mr. Tsang's] advances clearly diminished by the time they got to the parking lot" (para. 52).

114This description of the complainant's behaviour in the car as a "marked departure" ignores the thrust of her evidence: that "she was engaging in risk management" and chose to remain in the car because she was "scantily attired" and did not feel safe walking home through a bad neighbourhood where the sex trade occurs (trial reasons, at para. 53). She decided to get into the backseat of the car to kiss Mr. Tsang, even though the tip of his penis was exposed.

115The trial judge's analysis was alive to this aspect of the complainant's evidence. In considering the evidence that the complainant sat on Mr. Tsang's lap at the club, the judge quoted the complainant's testimony that "you pick your fights" (para. 141). Then, in considering that the complainant directed Mr. Tsang to pull into a parking lot, the judge observed that the complainant "weighed her options in her drunken state and decided to stay with a man who she had not perceived to be a threat" (para. 142).

116Just as in Mr. Kruk's case, the court's approach to reviewing the reasons led it astray. When the trial judge's reasons are viewed holistically and in context, in my respectful view, the first two "assumptions" the Court of Appeal identified were not assumptions at all, and the third assumption did not amount to an overriding error.

(trial reasons, at paras. 126 and 148)

117On the first alleged assumption, the Court of Appeal found two paragraphs in particular to be problematic.

118The Court of Appeal characterized the trial judge's conclusion that it was unbelievable the complainant would ask to be spanked as "a bald statement untethered to any evidence", considering that the trial judge's "primary rationale" for rejecting the conclusion appeared to be "simply that it is 'unbelievable'" (paras. 48-49). The court went on to emphasize that, absent extrinsic evidence to support it, the trial judge's conclusion about spanking could "only have been founded upon an assumption" that a person would not ask for spanking "out of the blue" (para. 49).

119While the Court of Appeal appeared to be preoccupied with finding some evidence in the record to support the trial judge's conclusion, it simultaneously disregarded the fact that the trial judge's assessment of the complainant's evidence was based on a record that, when assessed as a whole, contained the very evidence needed to contextualize that conclusion. Although clearly there was no evidence about what activities the complainant would have willingly engaged in after sexual foreplay, the record before the trial judge was replete with evidence about the complainant's conduct and demeanour throughout the evening.

120The trial judge's conclusion that it was unbelievable the complainant would ask to be spanked or for rough sex must also be understood in the context of the broader body of evidence that the complainant was uninterested in Mr. Tsang, but engaged in a risk analysis and agreed to limited sexual activity in the car — kissing, but nothing more. The trial judge's finding in this respect was tethered to her assessment of Mr. Tsang's evidence as contrived.

121With respect to the second alleged assumption, the Court of Appeal held the trial judge erred in finding that Mr. Tsang's description "about the prospect of intercourse being thwarted by the lack of a condom in his car when there was one available was contrived . . . and contrary to the level of control he conveyed about that evening and in court" (trial reasons, at para. 129). The Court of Appeal considered this finding to be "problematic" and characterized it as an assumption that a controlling person would not abstain from vaginal intercourse because they could not find a condom.

122Mr. Tsang's evidence was not assessed in relation to an assumption about whether controlling people would refrain from sex without a condom — rather, his evidence on this point was inconsistent with the judge's other findings, and so was disbelieved. Properly viewed, the judge's finding was that the accused himself was controlling and did not respect the complainant's wishes, a finding which the Court of Appeal agreed was open to her to make.

123The third assumption the Court of Appeal identified relates to the judge's assessment of Mr. Tsang driving away quickly after dropping the complainant off. The judge made the following remarks:

[Mr. Tsang's] lack of interest . . . at [the complainant's] invitation to meet again was at odds with his evidence that they . . . just had a great time, but is consistent with a non-consensual event where he got what he wanted without regard for her and drove away.

Mr. Tsang's testimony aligned with that of [the complainant] and [her friend] that he drove off as soon as [the complainant] got out of his car and he did not watch her go inside the house. I find this fact more consistent with [the complainant's] claim of non-consensual sex than with Mr. Tsang's version of what had just happened. He took off right away because of what he had just done to her and because she meant nothing to him. It is inconsistent with his evidence that he wanted to pleasure [the complainant] that night. [Emphasis added; paras. 131 and 153.]

124I agree that the judge erred here in relying on an assumption that people do not drive off quickly after consensual sexual encounters. However, without the rule against ungrounded common-sense assumptions in play, this assumption again falls to be assessed under the palpable and overriding error standard. This is the standard the Court of Appeal should have applied, and had it done so, it would have found no basis for reviewable error.

125I accept that the inaccuracy of this assumption is palpable, as it is obviously untrue and plainly observable. Mr. Tsang's after-the-fact decision to drive off quickly is neither consistent nor inconsistent with a sexual assault having occurred. As a matter of logic, the speed at which someone leaves after sexual activity generally has no bearing whatsoever on whether the activity was consensual or non-consensual.

126Nevertheless, the assumption is not overriding. Although it formed part of the judge's assessment of Mr. Tsang's testimony and contributed to the trial judge's finding that Mr. Tsang was a non-credible witness who "gave a very contrived and unbelievable story" (para. 156), the assumption itself did not form an essential part of the trial judge's decision to convict Mr. Tsang. Given all the other adverse credibility findings against Mr. Tsang, I am left with no doubt whatsoever that the judge's verdict would have been the same had she not relied on this assumption.

V. Disposition

127I would allow both appeals, set aside the orders of the British Columbia Court of Appeal, and restore the convictions.

The following are the reasons delivered by

Rowe J. —

I. Overview

128These two appeals ask how appellate courts should review trial judges' reliance on generalized expectations based on common sense and human experience in the fact-finding process. In both cases, the accused was convicted at trial by judge alone of one count of sexual assault, but the Court of Appeal for British Columbia unanimously ordered a new trial on the basis that the trial judge erred in their reliance on generalized expectations about human perception or behaviour. The Crown appeals to this Court, seeking to restore the convictions.

129Generalized expectations based on common sense and human experience play a necessary role in the judicial fact-finding process. They serve as a logical benchmark against which to compare the evidence for the purposes of drawing inferences from circumstantial evidence or assessing a witness's credibility. However, intermediate appellate courts have increasingly identified concerns about the limits of this exercise. In these reasons, I propose three questions that an appellate court should ask when reviewing for potential legal error in a trial judge's reliance on generalized expectations in the fact-finding process.

130First, did the trial judge rely on a generalized expectation in their reasoning process? Often, a factual conclusion may appear to reflect a generalized expectation, but the judge may not have actually relied on such an expectation and instead assessed the evidence with reference to other accepted evidence or facts from the trial. If the appellate court determines that the judge relied on a generalized expectation, then no error of law has yet been identified, and the analysis will proceed to the next two questions.

131Second, if the trial judge relied on a generalized expectation, was the expectation reasonable? In my view, it is an error of law for a judge to rely on an unreasonable generalized expectation to assess the evidence. Unreasonable generalized expectations masquerading as common sense or collective human experience are not a legitimate basis on which to assess and understand the evidence in a criminal trial. They are not confined to what might be considered "myths" or "stereotypes" or to the context of sexual assault trials.

132Third, did the judge rely on a generalized expectation as itself a conclusive and indisputable fact? Although judges have considerable latitude to rely on reasonable generalized expectations as a benchmark for assessing the evidence, such expectations are not a replacement for the evidence. It is an error of law for a judge to fail to consider all of the evidence on the ultimate issue of guilt or innocence, or to make a factual conclusion in the absence of evidence. Where a judge relies on a generalized expectation as itself a factual conclusion, what the judge is really doing is taking judicial notice, which is subject to a stringent test.

133Applying these principles to the appeals at hand, I would allow the appeals and restore the convictions. In Mr. Kruk's case, the trial judge relied on a generalized expectation about the likelihood of a woman being mistaken about an invasive physical experience (2020 BCSC 1480). This was a reasonable expectation about general human perception. The trial judge did not treat this as an indisputable fact but instead used it as a benchmark to assess the complainant's evidence in light of the totality of the evidence. There was therefore no basis for the Court of Appeal to intervene. In Mr. Tsang's case, the Court of Appeal for the most part incorrectly identified the trial judge as having relied on generalized expectations, where the judge was actually assessing the evidence as a whole. While the trial judge did err in relying on an unreasonable expectation about how people ordinarily behave after a consensual sexual encounter, this error of law was harmless.

II. Jurisprudential Background

134The two decisions on appeal are part of an influx of recent decisions by intermediate appellate courts on the use of "common sense", "human experience", "logic", "generalizations", "assumptions", "myths", "stereotypes", and other similar concepts used by trial judges in the fact-finding process. Such issues have become especially prevalent in appeals from sexual assault verdicts, both from acquittals and convictions.

135The parties and interveners point to the efforts of the Court of Appeal for Ontario in R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, with varying degrees of approval. This decision was noted to be helpful by the Court of Appeal for British Columbia in Mr. Tsang's appeal (2022 BCCA 345, 419 C.C.C. (3d) 187). It was not cited directly in the decision on appeal in Mr. Kruk's case (2022 BCCA 18), but both of these decisions refer to similar authorities, such as Roth, Cepic, and R. v. Kiss, 2018 ONCA 184.

136In J.C., Justice Paciocco, for the Court of Appeal, described "two relevant legal rules that identify impermissible reasoning relating to the plausibility of human behaviour" (para. 57). First, there is a "rule against ungrounded common-sense assumptions", which says that "judges must avoid speculative reasoning that invokes 'common-sense' assumptions that are not grounded in the evidence or appropriately supported by judicial notice" (para. 58).

137Second, there is an overlapping "rule against stereotypical inferences", which says that "factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour" (para. 63). This means "it is an error of law to rely on stereotypes or erroneous common-sense assumptions" about how a complainant or accused person is expected to act, either to bolster or compromise their credibility (ibid.).

138In addition, Justice Paciocco considered that "errors" arising from violating the rule against ungrounded common-sense assumptions or the rule against stereotypical inferences "are reversible only when they 'ground' the relevant inference by playing a material or important role in the impugned conclusion" (para. 71).

139J.C. has been relied on by intermediate appellate courts in numerous instances in the few years since it was decided. This reflects the prevalence of the issues now before this Court concerning trial judges' reliance on matters such as "common sense" and "human experience" to decide cases.

140A key issue raised by some of the parties and interveners in these appeals is whether the "rule against ungrounded common-sense assumptions" described in J.C. should be recognized as a basis for appellate intervention. The Crown and certain interveners say that the rule is unworkable and should be rejected by this Court, while the respondents and other interveners support the proposed approach in J.C.

141The proliferation of appellate jurisprudence and the submissions before this Court point to the need for guidance in the form of a clear and consistent framework for appellate review. In my view, a significant reason for the lack of clarity and consistency is the imprecise use of terminology, such as "common sense", "stereotypes", "myths", "inferences", "judicial notice", and "speculation".

III. Principles of the Fact-Finding Process

A. Foundational Concepts

142The essential purpose and feature of the trial process is the search for truth by identifying the "fact[s]" to which the law will be applied (S.N. Lederman, M.K. Fuerst and H.C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶1.40). In a criminal trial, the trier of fact is tasked with applying the law to the facts to determine whether the accused is guilty or not guilty of the offences charged.

143A conclusion of fact can be arrived at in one of two general ways: (a) by taking of judicial notice or (b) by "findings of fact" derived from the evidence or through "inferences" from other facts.

144"Judicial notice" is the acceptance by a court of the truth of a particular fact without "proof" (Lederman, Fuerst and Stewart, at ¶19.25). The threshold for taking judicial notice of fact is strict — "a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy" (R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48).

145"Evidence" is the primary means to facilitate the introduction of all logically relevant facts at trial (Lederman, Fuerst and Stewart, at ¶1.1). Evidence is not itself fact. Witnesses testify as to their observations and experiences, and the trier of fact must assess the evidence and determine what facts to find.

146Whether evidence is accepted as fact by the trier of fact will depend on an assessment of the witness's "credibility" and "reliability". Credibility refers to a witness's honesty or sincerity. Reliability, meanwhile, is about the accuracy of the witness's testimony, referring to the witness's ability to observe, recall, and recount events (see R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41). Assessing credibility and reliability is not a science (see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20).

147There are, broadly speaking, two types of evidence: "direct evidence" and "circumstantial evidence". Direct evidence is "evidence which, if believed, resolves a matter in issue" (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 88). Circumstantial evidence requires the trier of fact to draw inferences in order to conclude that a fact in issue is established.

148An "inference" is a finding of fact that may logically and reasonably be drawn from another fact (or group of facts) found or otherwise established in the proceedings (e.g., through judicial notice). Thus, triers of fact draw inferences from facts (whether established through evidence or judicial notice) to determine other facts.

149An "opinion" can be understood as a particular inference proffered by a witness (see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 14). As a general rule, witnesses may not give opinions, but should testify only to "facts" in their knowledge, observation, and experience; it is for the trier of fact to draw inferences from those facts.

150"Speculation" is a concept that has been given several meanings in different contexts. Notably, inferences must be ones which can be reasonably and logically drawn from a primary fact established by the evidence (or on judicial notice); "[a]n inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation" (R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 530).

151The foregoing sets out certain foundational concepts of the fact-finding process. Missing from this array is the role of the trial judge's reasoning, which bridges the gaps between evidence and fact, primary fact and inference, and so on.

B. Generalized Expectations in the Fact-Finding Process

152Common sense has been described as "both self-evident and inscrutable" (P. Cochran, Common Sense and Legal Judgment: Community Knowledge, Political Power, and Rhetorical Practice (2017), at p. 15). At various points in the fact-finding process, trial judges will necessarily rely on their "common sense" and "human experience" when assessing the evidence and deciding the facts in a case.

153Thus, common sense and human experience are the foundation for what can be described as "generalized expectations" — whether about typical human behaviour, human perception, or other shared experiences of humanity. In these reasons, I will rely on the language of "generalized expectations" to encompass considerations based on "common sense" or "human experience" in the judicial reasoning process. This phrase highlights that such considerations are both generalized (meaning they relate not to a specific individual but to what would ordinarily be expected in most instances) and expectational (meaning they are not certainties, but rather assessments of what is most likely to occur).

154Common sense, upon which generalized expectations are based, is the "predominant source of assessment for trier of fact decision-making" (Hill, Tanovich and Strezos, at § 31:16). Generalized expectations are an input into the reasoning process, acting as a logical benchmark against which to compare the evidence. For example, during the reasoning process used to arrive at an inference from a primary fact, trial judges may compare a proposed inference against the benchmark of a generalized expectation to determine its reasonableness.

155Similarly, in assessing the credibility of a witness, trial judges are also expected to apply common sense and human experience as a benchmark against which to weigh the plausibility of the evidence (Paciocco, Paciocco and Stuesser, at p. 608; see also R. v. Marquard, [1993] 4 S.C.R. 223, at p. 248); thus, the trial judge applies their experiences and common sense when judging the witness's demeanour, character, or the internal or external plausibility of their testimony.

156Generalized expectations based on common sense are frequently recognized in the jurisprudence. For example, it is a common-sense expectation that a person foresees the natural and probable consequences of their actions (R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 64), or is unlikely to flee a crime scene if they are not responsible for the act (R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 50).

157Some generalized expectations have been recognized in the jurisprudence as myths and stereotypes. "[M]yths and stereotypes" as a unified phrase is often understood in Canadian legal discourse as referring to "false beliefs about sexual assault that distort the fact-finding process", often concerning complainants and particularly women and children (L. Dufraimont, "Myth, Inference and Evidence in Sexual Assault Trials" (2019), 44 Queen's L.J. 316, at pp. 330-32).

158In my view, concepts such as "myths" and "stereotypes" should be given distinct meanings. I would adopt a conception of "stereotypes" as referring to biases arising from "traits that one associates with a particular group" (R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, at para. 53 (emphasis added), per Moldaver and Brown JJ.). In contrast, a "myth" reflects an inaccurate or distorted factual belief, often reflecting the attitudes of an earlier era.

159I note that reliance on generalized expectations in judicial reasoning has been understood by some as a form of implicit "judicial notice". In my view, it is best to avoid the term "judicial notice" in this context to distinguish (a) the reasoning process relating to evidence based on consistency with a generalized expectation from (b) the conclusion of indisputable or notorious facts through judicial notice (as an alternative to finding facts through evidence).

160The principles described above disclose two overarching ideas, which can be in tension, though not necessarily in conflict.

161On one hand, triers of fact necessarily rely on generalized expectations based on common sense or human experience as a logical benchmark when assessing the evidence. This occurs in at least two ways: (1) when drawing inferences from primary facts (by comparing the proposed inference to a generalized expectation of what is likely to happen from a given set of circumstances), and (2) when assessing credibility (by comparing the witness's evidence to a generalized expectation of what people would ordinarily do or experience in those circumstances).

162On the other hand, reliance on generalized expectations in a criminal proceeding is not without limits. Some expectations may not be accurate or reliable predictors of general human behaviour. This includes (but, as I will explain, is not limited to) "stereotypes" or other prejudicial assumptions about a particular group of people, as well as certain widely-held misconceptions about human behaviour that the law has identified as "myths". Furthermore, even if an expectation may be acceptable to rely on as a general proposition, a judge cannot treat the expectation as itself a conclusive and indisputable fact.

163In my view, these overarching ideas disclose three questions that an appellate court should ask when reviewing for potential legal error in a trial judge's reliance on generalized expectations in the fact-finding process:

1. Did the trial judge rely on a generalized expectation in their reasoning process?
2. If the trial judge relied on a generalized expectation, was the expectation reasonable?
3. Did the trial judge rely on a generalized expectation as itself a conclusive and indisputable fact?

164The first question is a means of distinguishing the judge's overall appreciation of the evidence from the use of generalized expectations in the reasoning process. The second and third questions can disclose errors of law by the trial judge, but only if, under the first question, the judge has indeed relied on a generalized expectation. I will discuss each question in turn.

IV. Framework for Appellate Review of the Use of Generalized Expectations in the Fact-Finding Process

A. Did the Trial Judge Rely on a Generalized Expectation in Their Reasoning Process?

165Where a trial judge makes a conclusion about a witness's credibility or an inference or a finding of fact from the evidence, that conclusion may appear to reflect a generalized expectation about the behaviour of most people (or a particular type of person), but the judge may not have actually relied on a generalized expectation. Instead, the judge may have assessed the evidence by comparing it to other accepted evidence or facts from the trial.

166Thus, where a judge is alleged to have improperly relied on a generalized expectation, appellate courts must first review the judge's reasons to determine whether the judge indeed relied on the alleged generalized expectation. Where no generalized expectation is employed, there is no basis for further appellate scrutiny, absent some other recognized basis for appellate intervention such as an unreasonable verdict. If, on the other hand, the appellate court concludes that the trial judge did rely on a generalized expectation, the analysis proceeds to the next two questions.

167At this stage of the analysis, the appellate court is not identifying any error. It is not an error of law per se for a judge to rely on a generalized expectation as a logical benchmark when assessing the evidence. To the contrary, as I have explained, this is a well-recognized and necessary part of the judicial fact-finding process. Rather, in answering this first question, the appellate court is simply determining what the trial judge really decided, why the judge decided that way, and whether there is a basis for further scrutiny.

168Many errors often alleged before appellate courts would be resolved under this question. For example, in Quartey, the accused — a man — testified that he was not interested in sex with the complainant and that he had refused the complainant's attempt to perform fellatio on him because he did not enjoy fellatio. The trial judge rejected his evidence and found him guilty of sexual assault. On appeal, the accused argued that the judge found his testimony unbelievable because the judge assumed that men are always interested in sexual activity. This Court affirmed the Court of Appeal's decision that the trial judge did not make a stereotype-based assumption about men and sex. The trial judge rejected the accused's evidence on the basis of other aspects of the evidence; thus, no generalized expectation about male sexuality was relied on by the trial judge.

169As Professor Dufraimont observes, "[t]he clear implication of Quartey . . . is that the accused's appeal would have succeeded if the trial judge had indeed relied on stereotypes about men and male sexuality" ((2021), at p. 548). Thus, a negative answer to this first question may obviate appellate intervention, even where an alleged generalized expectation, had it been relied on, would have amounted to an error of law (as discussed below).

170How can appellate courts determine whether a trial judge relied on a generalized expectation (meaning the analysis proceeds to the next two questions below) or made a determination based on the evidence and facts in the particular case (meaning there is no need for further scrutiny under this framework)? This is a highly case-dependent inquiry. However, this Court has provided repeated guidance in recent cases to which appellate courts should direct themselves. An appellate court must assess whether the reasons, read as a whole and in context of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. Appellate courts must not finely parse the trial judge's reasons in search for error.

(1) Materiality and the Curative Proviso

171Before turning to the second question of my proposed framework, I pause to distinguish the question of whether the trial judge relied on a generalized expectation, as described above, from the question of "materiality" and the operation of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.

172The requirement for materiality or importance in J.C. appears to be founded on the idea that a judge may not have actually "relied on" a given "stereotype or improper inference", as in cases such as Quartey (see J.C., at paras. 71-74). I would give effect to this question pursuant to the first question that I have described above. In my view, appellate courts must address the question of "reliance" at the outset of the analysis, rather than as part of a secondary "materiality" analysis.

173However, unlike the framework proposed in J.C., this question does not turn on whether the judge's reliance on a generalized expectation was "material" or "important" to the analysis. Whenever an appellate court identifies the trial judge as having relied on a generalized expectation, the analysis proceeds to the second question that I describe below, regardless of whether that reliance was material or important.

174I come to this conclusion because, as I will explain, the question of whether an error was "material" to the conviction plays no role in identifying an error of law. Rather, it is only after an error of law has been identified on an appeal that the burden falls on the Crown to demonstrate whether the error was "material" to the conviction.

175In an appeal by the accused from a conviction, the question of materiality is addressed under the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. Whenever an appellate court identifies an error of law by the trial judge in a conviction appeal, it may nonetheless decline to intervene under the curative proviso on the basis that no substantial wrong or miscarriage of justice has occurred. The curative proviso may be invoked in two circumstances: (1) where the error can be considered harmless — so minor or harmless that it could not have had any impact on the verdict; or (2) where the evidence is so overwhelming that no reasonable jury could have acquitted (see R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34).

176The principles of appellate review for legal error and the application of the curative proviso must be kept distinct. The Criminal Code and this Court's jurisprudence mandate a structured analysis. The appellant must first demonstrate an error of law. Only then does the Crown, should it choose to rely on the curative proviso, bear the burden to satisfy one of the bases for its application.

177The Court of Appeal in J.C. may have mistakenly imported the requirement for materiality from two contexts in which materiality is required. However, there is a distinct rationale for the materiality requirement in those contexts, which cannot be translated to appeals from convictions on an error of law.

178First, the requirement for an error of law to be material arises in appeals by the Crown from acquittals (R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14). In such appeals, the burden remains with the Crown to prove both the existence of legal error as well as the materiality of that error.

179Second, the issue of materiality arises in the context of misapprehensions of evidence amounting to a miscarriage of justice (see Morrissey; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3). Here, the appellant in a conviction appeal must prove materiality because misapprehensions of evidence are, generally speaking, factual issues, not questions of law.

180With this precision in hand, I turn to discuss the second question that an appellate court should ask, if it has determined that the trial judge relied on a generalized expectation.

B. If the Trial Judge Relied on a Generalized Expectation, Was the Expectation Reasonable?

181Again, it is not an error of law per se for a trial judge to rely on a generalized expectation as a logical benchmark when assessing the evidence. Generalized expectations are necessarily relied on as inputs in the inference-drawing process, as well as when determining credibility. However, as I have explained, generalized expectations are based not on the evidence, but on common sense and human experience. Some generalized expectations may be widely held by the community but may be revealed to be inaccurate.

182I would therefore propose the following question for appellate review. If, under the first question, the appellate court concludes that the trial judge did rely on a generalized expectation in assessing the evidence, then the appellate court should determine whether the generalized expectation was reasonable. A standard of reasonableness imparts a measure of objectivity and community consensus in shaping the boundaries of a judge's reliance on common sense and human experience to make decisions, ensuring that triers of fact do not rely on generalized expectations that are inaccurate or unreliable.

183I note that the standard could have been couched in terms of "accurate", "true", "plausible", etc. In my opinion, "reasonableness" is preferable. It strikes a balance between: (a) ensuring that triers of fact do not rely on unacceptably prejudicial or inaccurate generalizations on one hand, and (b) respect for the trier of fact's role and the necessity of common sense and human experience in fact-finding on the other hand.

184Where a trial judge relies on an unreasonable generalized expectation in assessing the evidence, then the judge has committed an error of law. This will invite appellate intervention, subject to the Crown successfully invoking the curative proviso or, in an appeal by the Crown, subject to the Crown's ability to demonstrate the materiality of the error.

185Similar to how drawing the line between a reasonable inference and speculation is "not always easy" (Villaroman, at paras. 38 and 43), it is difficult to set out, in the abstract, what amounts to a reasonable generalized expectation with perfect precision. It will be up to appellate courts to consider the reasonableness of a proposition derived from common sense or human experience. The crucial point, however, is that a generalized expectation must be a reasonably accurate reflection of what is true in most circumstances.

186Examples of reasonable generalized expectations abound in the jurisprudence. Often, these generalized expectations relate to human experience or behaviour. This includes the "common-sense assumptions" I have referred to that a person foresees the natural consequences of their actions or is unlikely to make false statements against their own interest. Such expectations are frequently relied on in the fact-finding process because they are understood as reasonably accurate reflections of ordinary human behaviour.

187Where the boundaries of common sense or human experience end and the trial judge relies on an inaccurate proposition masquerading as "common sense" or "human experience", the expectation cannot be said to be a reasonable reflection of what is true in most circumstances and should not be used as a benchmark to assess the evidence. Myths and stereotypes are recognized examples of inaccurate generalized expectations that "jeopardize the courts' truth-finding function" (R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2).

188I stress that this inquiry targets a specific and limited part of the fact-finding process. Again, generalized expectations based on common sense and human experience are an input into the fact-finding process. They serve as a logical benchmark against which to assess the evidence to make conclusions of credibility or inferences of fact. Appellate review under this question is concerned solely with that benchmark, and not with the evidence being interpreted or any conclusions drawn from the evidence.

189The foregoing sets out my view of how appellate courts should assess the reasonableness of generalized expectations. In the following sections, I will discuss two further points arising from the Crown's submissions: (1) whether the reasonableness of a generalized expectation is a question of law, and (2) whether the framework set out by the Court of Appeal for Ontario in J.C. should be endorsed.

(1) Question of Law or Fact?

190Central to the parties' disagreement on the legal principles engaged in these appeals is the issue of whether a trial judge's reliance on a generalized expectation engages a question of law or a question of fact. This characterization is important to both appellate jurisdiction and the standard of appellate review.

191It is not disputed that there are limitations to reliance on generalized expectations that amount to questions of law. Notably, various expectations founded on myths or stereotypes about complainants, particularly women and children, in the context of sexual assault trials have been identified as errors of law, either by statute or by the courts. For example, s. 276(1) of the Criminal Code proscribes the drawing of inferences from the complainant's past sexual activity to conclude on the basis of the "twin myths" — i.e., that the complainant's past sexual activity makes it more likely that she consented or that she is less worthy of belief.

192To be clear, nothing in my reasons should be understood as altering or diluting the jurisprudence on recognized myths and stereotypes in the context of sexual assault trials. Such myths and stereotypes — including the "twin myths" set out in the Criminal Code and other discredited expectations of how individuals, disproportionately women and children, behave during sexual encounters — have no place in the law and are appropriately denounced as errors of law (A.R.J.D., at para. 2).

193However, the Crown suggests that the categories of generalized expectations that may not, as a matter of law, be relied on are limited to what may be considered a discredited "myth" or a "stereotype". I disagree. In my view, such a narrow approach creates artificial distinctions in the law, unduly limits the important role of appellate courts in the criminal justice system, and risks undermining public confidence in the administration of justice.

194On a conceptual level, the underlying rationale for reliance on a generalized expectation is the same, regardless of whether the generalized expectation can be considered a "myth", a "stereotype", or something else. While the prevalence and experience of people subject to such generalized expectations will differ, all generalized expectations purport to derive from the same source: "common sense" and "human experience". I am not persuaded that there is a principled basis to separate particular categories of generalized expectations for distinct treatment.

195On a practical level, intermediate appellate courts have increasingly identified concerns about trial judges relying on unreasonable generalized expectations beyond the paradigmatic categories of myths and stereotypes about complainants in sexual assault cases. Professor Dufraimont observes that other categories have emerged in the jurisprudence, such as stereotypes about men and persons accused of sexual assault, or on grounds other than sex and gender such as against Indigenous and racialized groups ((2021), at pp. 554-58).

196I also agree with the intervener Association québécoise des avocats et avocates de la défense that the Crown's narrower view would fail to account for generalized expectations that could not accurately be classified as "myths" or "stereotypes" about complainants in sexual assault cases yet would nonetheless be unacceptable to rely on in a criminal trial. For example, the trial judge in J.C., in rejecting the accused's evidence, relied on the expectation that people (namely, people accused of sexual offences) generally do not meticulously obtain step-by-step consent during sexual encounters — an expectation that, in my view, is unreasonable.

197The Crown asserts that appellate review of generalized expectations should be narrow because such expectations are deployed as part of the factual assessment of the evidence. Of course, deference is owed to trial judges on factual matters. However, not all issues that involve matters of evidence are necessarily questions of fact to which deference is owed. This Court has acknowledged at least four types of cases where the mishandling of evidence can constitute an error of law: (1) it is an error of law to make a finding of fact for which there is no evidence; (2) it is an error of law to take judicial notice of facts which do not meet the threshold for judicial notice; (3) it is an error of law to apply the wrong legal standard to the evidence; and (4) it is an error of law to fail to consider all the evidence on a material issue (see R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25-33).

198I find support for my conclusion in the relevant policy reasons for why appellate courts defer to trial judges' factual findings on one hand, and the wide discretion for appellate intervention on questions of law on the other hand.

199Appellate courts defer to trial judges on factual matters for at least three overarching policy reasons, as described in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (a civil case): (1) to limit the number, length, and cost of appeals; (2) to promote the autonomy and integrity of trial proceedings; and (3) to recognize the expertise of the trial judge and the judge's advantageous position to assess the evidence (paras. 16-18).

200In my view, reviewing unreasonable expectations on a standard of correctness would have a limited impact on these policy considerations. Concerns about preserving public resources or promoting the autonomy and integrity of trials, while important, are secondary to the rights of the accused in a criminal proceeding, in light of the interests at stake and Parliament's decision to provide broad access to a first level of appeal (see, e.g., Sarrazin, at para. 27).

201In contrast, "the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application" (Housen, at para. 9). Appellate courts therefore maintain a broad scope of review on questions of law. The principle of universality dictates that legal questions require clear and consistent answers in order to maintain public confidence in the administration of justice.

202In the context of appeals from criminal matters, appellate courts play an especially important role in reviewing trial proceedings to prevent wrongful convictions and ensure that all convictions arise through a fair process that maintains public confidence in the administration of justice. As explained in Biniaris, "[c]riminal appeals on questions of law are based in part on the desire to ensure that criminal convictions are the product of error-free trials. Error-free trials are desirable not only to produce fair outcomes, but also to maintain public confidence in the criminal justice system" (at para. 19).

203The characterization of an issue as a question of law is also significant to the grounds for appellate jurisdiction in criminal matters, especially the limited grounds for Crown appeals from acquittals. The Crown maintains a limited right to appeal on questions of law, which provides an avenue to balance the legitimate needs of a criminal justice system operating under the rule of law against the accused's entitlement to finality when acquitted of criminal charges.

204In my view, these considerations support the application of a correctness standard when determining the reasonableness of a generalized expectation. This inquiry is not dependent on the evidence and instead rests on what is reasonably true in most instances. The need to preserve public confidence in the administration of justice mandates that verdicts in criminal cases — whether convictions or acquittals — not be founded on assumptions that are not reasonably accurate reflections of what is true in most circumstances.

205Appellate courts should take caution that nothing in these reasons should be construed as meaning that the Crown can appeal an acquittal merely on a reassessment of the facts.

206We should not undermine the important institutional role of courts of appeal. Trial judges and courts of appeal have complementary roles, the latter being a safety net for errors by the former. In criminal law, effective appellate review is critical to avoiding improper verdicts. In earlier times, courts of appeal too readily intervened to substitute their own assessment of the evidence for that of the trial judge. More recently, under the banner of "deference", there is increasing risk that the "safety net" role of courts of appeal is being unduly weakened.

207The palpable and overriding standard of review can be misused to generate a decision-making "black box" that facilitates ad hoc decision-making. By this, I mean an approach whereby if the Court of Appeal agrees with what the trial judge has done, it "shows deference", while where the appellate court prefers another outcome, it labels the trial judge's decision as a palpable and overriding error and substitutes its preferred outcome.

208Of course, this can also occur in applying the correctness standard, as was so in the "bad old days" where appellate courts too readily substituted their own assessment of the evidence. But, application of the palpable and overriding standard can be an opaque process. By contrast, the correctness standard, by its nature, requires setting out expressly an alternative line of reasoning and demonstrating why it should be followed. Properly applied, correctness demands greater conceptual clarity and analytical rigour.

(2) The "Rules" in J.C.

209Having set out my view of the scope and standard of appellate review, I turn to consider whether the Court of Appeal for Ontario's approach in J.C. should be endorsed. As I have explained, J.C. represents a notable effort to address the concerns identified by intermediate appellate courts in many recent decisions. The Crown directs its attention to the "rule against ungrounded common-sense assumptions" described in J.C. and says that the rule should be rejected because it encourages appellate courts to interfere too readily with trial judges' reliance on generalized expectations, as exemplified by the Court of Appeal for British Columbia in Mr. Tsang's case.

210I would not adopt the articulation of the "rule against ungrounded common-sense assumptions" as described in J.C. It implies that a generalized expectation can be rejected merely because it is not "grounded" in the evidence. However, generalized expectations are not themselves grounded in the evidence, but are instead grounded in common sense and human experience. They nonetheless play a necessary role in the reasoning process when assessing the evidence.

211In my view, the difficulty with the standard set out in J.C. is exemplified by the Court of Appeal's application of the proposed rule to the circumstances of that case. The accused testified about his practice of securing consent from the complainant on each progressive stage of sexual activity. The trial judge concluded that the accused's testimony was "not in accord with common sense and experience about how sexual encounters unfold" (R. v. J.C., 2018 ONSC 5547, at para. 88). The Court of Appeal considered that the trial judge came to this conclusion based on the assumption that "people engaged in sexual activity simply do not achieve the 'politically correct' ideal of expressly discussing consent to progressive sexual acts" (para. 97); in the Court of Appeal's view, this ran afoul of the rule against ungrounded common-sense assumptions because the judge's assumption was "a bald generalization about how people behave" and was "not derived from anything particular to the case, or any evidence before the trial judge on how all sexual encounters unfold" (para. 96). With respect, this is not a workable standard for appellate scrutiny.

212While I would not adopt J.C.'s articulation of a "rule against ungrounded common-sense assumptions", this does not mean that the Court of Appeal in J.C. did not identify a legitimate concern with the trial judge's reasoning in that case. The Court of Appeal concluded that the impugned expectation also contravened the "rule against stereotypical inferences", as "it presupposes that no-one would be this careful about consent" (para. 97), and "the behaviour the trial judge rejected as 'too perfect', 'too mechanical', and 'too politically correct' to be believed is encouraged by the law, and certainly prudent" (para. 98). Respectfully, it is difficult to characterize the judge's expectation in that case as a "stereotype".

213Thus, the trial judge's generalized expectation in J.C. was problematic not because it was ungrounded in the evidence, or because it was a "stereotype", but because it is unreasonable to expect that people generally do not achieve the "politically correct" ideal of obtaining consent. The result and underlying rationale in J.C. are therefore compatible with my proposed framework, even though I would not adopt the same formulations of the principles as the Court of Appeal for Ontario.

C. Did the Trial Judge Rely on a Generalized Expectation as Itself a Conclusive and Indisputable Fact?

214As I have explained, trial judges have considerable latitude to rely on reasonable generalized expectations as a logical benchmark in assessing the evidence. An appellate court may not interfere with the judge's assessment of the evidence just because it would have come to a different conclusion from the evidence and any reasonable generalized expectations relating to that evidence.

215However, there is an important limit on the use of even a reasonable generalized expectation: The trial judge cannot treat the generalized expectation as itself a conclusive and indisputable fact, such that the judge ignores or forecloses their mind to the evidence. This is because people may always act contrary to a generalized expectation of what common sense or human experience would ordinarily anticipate. The trial judge's duty is to determine on the evidence what really happened. For example, when drawing inferences from circumstantial evidence, a judge must consider the evidence "in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense" (Villaroman, at para. 30 (emphasis added)). Thus, generalized expectations based on human experience and common sense are only one consideration, which assist with interpreting the evidence. In the end, the focus must remain on the evidence.

216There is nothing novel about this aspect of my proposed framework. There are at least two reasons why the foregoing amounts to an error of law. First, it is an error of law for a trial judge to fail to consider all of the evidence on the ultimate issue of guilt or innocence — this is the fourth category of error described in J.M.H. (paras. 31-32; see also Walle, at para. 46). Second, where the judge treats a generalized expectation as itself an indisputable fact, what the judge is really doing is taking judicial notice, which is subject to a stringent test — a standard that will rarely, if ever, be met by a generalized expectation about people due to the variability of human experience and behaviour.

217For example, in L.(J.), the trial judge did not engage with the complainant's and accused's testimony and instead "relied on two facts to explain why he accepted that the complainant communicated a lack of consent to further sexual contact and that the [accused] pressed on in an attempt at intercourse", one of which was "his finding that it 'defies reason and common sense' that 'a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity'" (para. 43). The Court of Appeal for Ontario considered that, although trial judges are permitted to exercise common sense when deciding a case, the judge erred "by relying on an assumption regarding what young women will and will not do, as if it were a fact" (para. 47 (emphasis added)).

218Of course, a trial judge is not required to refer to every item of evidence or to explain how each piece of evidence was assessed (J.M.H., at paras. 31-32). "A trial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect" (R. v. Morin, [1992] 3 S.C.R. 286, at p. 296).

219In addition, this aspect of my proposed framework is of considerably less utility to the Crown on an appeal from an acquittal than an accused on an appeal from a conviction. This is for several reasons. First, an error of law due to the absence of evidence for a finding of fact "will happen as regards an acquittal only if there has been a transfer to the accused by law of the burden of proof of a given fact" (Schuldt, at p. 604). A reasonable doubt leading to an acquittal "is not a finding of fact but instead a conclusion that the standard of persuasion beyond a reasonable doubt has not been met" (J.M.H., at para. 25).

V. Application to These Appeals

220Having set out what I consider to be the three questions to ask on appellate review of a trial judge's use of generalized expectations, I turn to the purported errors in each of the two appeals before this Court.

A. Mr. Kruk

221Mr. Kruk was charged with one count of sexual assault from an incident at his home in the early hours of May 27, 2017. Earlier that evening, he came upon the heavily intoxicated complainant on the street. The complainant testified that she woke up in Mr. Kruk's bed with her pants off, Mr. Kruk on top of her, and his penis inside her vagina. Mr. Kruk testified that he took care of the complainant throughout the evening and intended to drive her to her home in the morning. He denied any sexual touching of the complainant and said the complainant removed her own pants while intoxicated. He proposed that the complainant woke up, still intoxicated, found her pants were off, and assumed the worst.

222The trial judge found Mr. Kruk's testimony did not raise a reasonable doubt. In accepting the complainant's testimony despite the reliability concerns from her intoxication, the judge stated: "She said she felt [the accused's] penis inside her and she knew what she was feeling. In short, her tactile sense was engaged. It is extremely unlikely that a woman would be mistaken about that feeling" (para. 68). The Court of Appeal concluded the judge erred in law by engaging in "speculative reasoning" and making an assumption on a matter that was not a matter of common sense or the proper subject of judicial notice.

223I disagree with the Court of Appeal. Answering the three questions I have described above leads me to the conclusion that the trial judge committed no error.

224Under the first question, the trial judge did rely on a generalized expectation about people — here, about physical perception. There was no evidence about whether this complainant was unlikely to be mistaken about the feeling of vaginal penetration. Thus, the judge assessed the plausibility of the complainant's evidence with reference to an expectation of what the judge believed people — or, more specifically, women — in general would or would not experience.

225As I have explained, the fact that the judge relied on a generalized expectation is not itself problematic. To the contrary, it is a necessary part of judicial reasoning to assess evidence in relation to a benchmark of what might be ordinarily expected. However, the fact that the trial judge relied on a generalized expectation raises the possibility of an error of law under the second and third questions that I have described. My analysis therefore proceeds to those questions.

226Under the second question, I conclude that it is a reasonable generalized expectation that a woman is unlikely to be mistaken about the feeling of vaginal penetration. This is not to say that this is an incontrovertible fact about all women in all instances, or that a woman can never be mistaken. However, as a general proposition, it is perfectly reasonable. As the Crown observes, a sexual act of this nature would have a profound and traumatic impact on the bodily integrity of an individual, and ordinary people would not generally require special knowledge of such an aspect of human perception to assess this sort of evidence.

227The Court of Appeal implied that further detail from the complainant's testimony about her experience may have assisted, noting that the complainant "was not asked, for example, to put into words what [the feeling of penetration] felt like, whether she experienced any pain, whether she had been injured or even why she felt so confident about her testimony" (para. 55). I disagree that a more detailed description of the complainant's physical experience would have assisted in this case.

228Mr. Kruk suggests that it was problematic for the trial judge, a man, to rely on a generalized expectation about what women would likely feel, as the judge would have "no personal experience regarding the matter" (R.F., at para. 56; see also para. 64). I disagree. While the trial judge would not have direct life experience of this precise experience, it is perfectly reasonable for any person to expect another person to not be mistaken about the sensation of having their bodily integrity violated in such a manner.

229Mr. Kruk also says that the reasonableness of an expectation depends on the particular circumstances of the case, and that "[t]he further the circumstance comes from the norm to the outlying extreme, the less likely that it is a matter of common sense" (transcript, at p. 70). Thus, in his submission, the fact that the complainant "was extremely intoxicated and disoriented" meant that the judge's generalized expectation was no longer reasonable (ibid.). This misunderstands the nature of a generalized expectation and its role in the reasoning process of fact-finding. It is sufficient for an expectation to be reasonable in a generalized manner, meaning it would be true in most circumstances.

230In my view, the Court of Appeal's conclusion most closely reflects a concern arising under the third question. The Court of Appeal considered the trial judge erred by making a "finding" that was not the "proper subject of judicial notice" (para. 67), which caused the trial judge to "engag[e] in speculative reasoning that was not grounded in the evidence" (para. 68). If this were true, I agree that this would amount to an error of law. However, I disagree that the trial judge committed this error. The trial judge did not treat the generalized expectation that a woman is unlikely to be mistaken about the feeling of vaginal penetration as a conclusive and indisputable fact in this case (i.e., as a fact drawn on judicial notice). Rather, he properly relied on that generalized expectation as a benchmark for assessing the plausibility of the complainant's evidence.

231Crucially, the judge did not foreclose his mind to the rest of the evidence on the basis that a woman could never be mistaken about the feeling of vaginal penetration. The judge relied on circumstantial evidence that he considered was "consistent with a sexual encounter having occurred between the accused and the complainant", including their respective states of undress and the removal of the complainant's pants (para. 69). The judge also considered "the failure of the accused to contact the complainant's parents in the overall circumstances . . . to be consistent with an intention to take sexual advantage of a young woman he knew to be in an extremely compromised and vulnerable state" (para. 70). The judge was also clearly alive to the reliability concerns about the complainant's evidence (para. 48).

232For the reasons above, I conclude that the trial judge did not commit the error alleged by Mr. Kruk or identified by the Court of Appeal.

B. Mr. Tsang

233Mr. Tsang was charged with one count of sexual assault from an incident in his car in the early hours of December 29, 2018. He and the complainant met at a music concert and attended a subsequent event at the Commodore Ballroom in Vancouver. The two then departed in Mr. Tsang's car. The complainant testified that on the way to drop her off, Mr. Tsang stopped the car at a parking lot, where he asked to make out in the back seat. She consented, expecting no more. However, without her consent, Mr. Tsang forced her to perform oral sex and penetrated her vaginally and anally. He then dropped her off at her friend's home and abruptly drove away as soon as she exited the vehicle. Evidence from a sexual assault medical examiner noted trauma to the genital area, including a tear to the vagina. Mr. Tsang testified that the complainant suggested and led all instances of sexual activity, including the oral sex and digital vaginal penetration; that she asked to be "spanked" and for other instances of "rough sex"; that he never penetrated her anally; and that they did not engage in penile-vaginal intercourse because he could not find a condom. The trial judge rejected Mr. Tsang's evidence and concluded that Mr. Tsang controlled the complainant throughout the night and "orchestrated" the events. She found the complainant to be credible, accepted her evidence, and convicted Mr. Tsang (2020 BCPC 306).

234The Court of Appeal concluded that the judge erred in rejecting Mr. Tsang's testimony by making three "assumptions" or "generalizations" about human behaviour that amounted to "speculative reasoning": that (1) a person would not ask to be spanked while engaging in sexual foreplay "out of the blue"; (2) a controlling person would not refrain from engaging in vaginal intercourse because of the absence of a condom; and (3) a person would not abruptly and unceremoniously leave another with whom he had engaged in consensual sex (paras. 73-74).

235I will address each of these three purported errors in turn.

(1) A Person Would Not Ask To Be Spanked While Engaging in Sexual Foreplay "Out of the Blue"

236Under the first question that I have described, I conclude that the trial judge did not rely on a generalized expectation of human behaviour when she found that the complainant did not ask to be spanked or otherwise encourage "rough sex". I note that while the Court of Appeal at times focused on the judge's rejection of Mr. Tsang's evidence that the complainant "asked him to spank her" (para. 28), it expressed a broader concern that the judge "rejected [Mr. Tsang's] evidence that the complainant encouraged rough sex" (para. 43).

237The trial judge's rejection of Mr. Tsang's "rough sex" evidence was not based on a generalized expectation about whether any person would ask to be spanked or otherwise encourage rough sex. Instead, it was based on the judge's assessment of the evidence about the particular individuals in question and her conclusions about Mr. Tsang's credibility in particular. The judge's reasons clearly indicate that she did not believe Mr. Tsang's story that the complainant had instigated all flirtatious or sexual advances that evening. The judge had, at this point in her reasons, noted that the complainant "had expressed no interest" in Mr. Tsang throughout the night until the incident in his vehicle, and that she "had been with another man earlier in the evening" (para. 121). The judge had also rejected Mr. Tsang's testimony about the complainant initiating a kiss on the Commodore Ballroom dance floor. Further, and importantly, the trial judge considered Mr. Tsang's evidence about rough sex was contrived to explain the presence of injuries (para. 158).

238With respect, the Court of Appeal reweighed the evidence. It downplayed aspects of the judge's reasoning by concluding, for example, that "little turns upon the events that preceded those that took place in the parking lot" (para. 42) and that it could not be said that other aspects of the evidence "weighed heavily" in the judge's assessment of the evidence (para. 45). The trial judge's assessment of the evidence was clearly informed by the entire transaction of events during the evening and her overall assessment of the evidence.

239Accordingly, the trial judge did not rely on a generalized expectation of what people are likely to do during sexual activity. There is therefore no need to consider the second and third questions that I have described in relation to this alleged error.

(2) A Controlling Person Would Not Refrain From Engaging in Vaginal Intercourse Because of the Absence of a Condom

240As with the first purported error, I conclude under the first question that the trial judge did not rely on a generalized expectation about human behaviour when she rejected Mr. Tsang's evidence that he refrained from vaginal intercourse because of the absence of a condom. There is therefore no need to consider the second and third questions that I have described.

241The impugned statement in the trial judge's reasons is as follows:

242The Court of Appeal considered that the trial judge relied on a "prejudicial stereotype" about "controlling" people to assume that such people would not abstain from sex because of the lack of a condom (para. 65). In my view, there is no generalized expectation about "controlling" people at play in the trial judge's reasons. The judge concluded that Mr. Tsang himself was "controlling" and had "orchestrated" events throughout the night, based on circumstances such as Mr. Tsang's insistence that the complainant and her friend leave their fanny packs and belongings in his car and his encouragement of further drinking. The trial judge thus found it contrived that the inability to find a condom would have "thwarted" his motivation to have sexual intercourse with the complainant, in light of all of the other evidence of his behaviour throughout the evening.

243The Court of Appeal again reweighed the evidence in order to identify an error. It did not question the trial judge's conclusion that Mr. Tsang was "controlling" and had "orchestrated" the events throughout the night. It acknowledged the various aspects of the evidence that the judge considered. Despite acknowledging these points, the Court of Appeal downplayed the significance of the trial judge's impressions of Mr. Tsang, again by stating that "little turns upon the events that preceded those that took place in the parking lot" (para. 42).

244As I would dismiss this argument under the first question, there is no need to consider the reasonableness of any generalized expectation under the second question, as none was relied on. However, I would add that, in my view, the Court of Appeal's characterization of the trial judge's analysis as relying on a "prejudicial stereotype" about "controlling people" distorts a proper understanding of stereotypes.

(3) A Person Would Not Abruptly and Unceremoniously Leave Another With Whom He Had Engaged in Consensual Sex

245I turn to the final error identified by the Court of Appeal. The impugned passages of the trial judge's reasons are as follows:

[Mr. Tsang's] lack of interest . . . at [the complainant's] invitation to meet again was at odds with his evidence that they . . . just had a great time, but is consistent with a non-consensual event where he got what he wanted without regard for her and drove away.

Mr. Tsang's testimony aligned with that of [the complainant] and [her friend] that he drove off as soon as [the complainant] got out of his car and he did not watch her go inside the house. I find this fact more consistent with [the complainant's] claim of non-consensual sex than with Mr. Tsang's version of what had just happened. He took off right away because of what he had just done to her and because she meant nothing to him. It is inconsistent with his evidence that he wanted to pleasure [the complainant] that night. [Emphasis added; paras. 131 and 153.]

246Under the first question that I have described — and unlike the first two purported errors — I consider that the trial judge did rely on a generalized expectation about how people ordinarily behave after a consensual sexual encounter. I disagree with the Crown that the judge was solely considering the consistency between Mr. Tsang's evidence that he and the complainant had just had a great time with the evidence of Mr. Tsang's abrupt driving away. The judge did not simply say that Mr. Tsang's evidence was inconsistent, but she affirmatively considered that Mr. Tsang driving away was "consistent with a non-consensual event where he got what he wanted without regard for her" and "more consistent with [the complainant's] claim of non-consensual sex".

247Furthermore, under the second question, I consider that it is unreasonable to expect any logical connection between an individual waiting for their sexual partner to enter a home and the consensual or non-consensual nature of the preceding encounter. Driving away could certainly indicate impoliteness or a lack of social tact. Yet this is a far cry from suggesting that the person has just participated in a non-consensual sexual encounter. This cannot be understood to be a reasonably accurate reflection of what is true in most circumstances, such that it can be used as a reliable benchmark to assess the evidence.

248Despite this error of law, I would uphold the conviction under the curative proviso on the basis that no substantial wrong or miscarriage of justice has occurred. In my view, this error of law was "so harmless or minor that it could not have had any impact on the verdict" (Van, at para. 34). As the Crown observes, this generalized expectation played a very minor role in the trial judge's analysis. The judge's verdict clearly turned on her favourable assessment of the complainant's credibility, as well as her complete rejection of Mr. Tsang's testimony as inconsistent with the events throughout the evening and contrived to explain away the complainant's injuries. In these circumstances, it is inconceivable that the trial judge would have had a reasonable doubt about consent had she not relied on the evidence about his abrupt driving away.

VI. Conclusion

249For the reasons above, I would allow both appeals and restore the convictions.

APPENDIX

Appeals allowed.

Solicitor for the appellant: Ministry of Attorney General — Criminal Appeals, Vancouver.

Solicitors for the respondent Christopher James Kruk: Johnson Doyle Nelson & Anderson, Vancouver.

Solicitors for the respondent Edwin Tsang: Fowler & Blok, Vancouver.

Solicitor for the intervener the Attorney General of Alberta: Alberta Crown Prosecution Service — Appeals and Specialized Prosecutions Office, Calgary.

Solicitors for the intervener the Independent Criminal Defence Advocacy Society: Thorsteinssons, Vancouver; Pringle Law, Vancouver.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Gorham Vandebeek, Toronto.

Solicitors for the intervener the Trial Lawyers Association of British Columbia: Peck and Company, Vancouver; Olthuis van Ert, Vancouver.

Solicitors for the intervener Association québécoise des avocats et avocates de la défense: Hugo Caissy (ad hoc), Amqui, Que.; Beaudry Roussin, Québec.

Solicitors for the interveners the West Coast Legal Education and Action Fund Association and the Women's Legal Education and Action Fund Inc.: Megan Stephens Law, Toronto; West Coast LEAF, Vancouver; Women's Legal Education and Action Fund (LEAF), Toronto.

Footnotes

1. 1For example, this Court has rejected the notion that the questions in the W. (D.) analysis need to be posed in a specific order (R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639); furthermore, trial judges can, in the right circumstances, reject the testimony of the accused because they believe the testimony of the complainant (R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.)). This Court has also expressed reservations about whether uneven scrutiny of Crown and defence evidence is a proper, independent ground of appeal (R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801).