Court File and Parties

Court File No.: CR-17-17 Date: 2019-07-04 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: D.M., Defendant

Counsel: Lyndsay Jeanes, for the Crown Stephen Whitzman, for D.M.

Heard: June 27, 2019

Ruling on the relevance of evidence of an absence of avoidant behaviour

Restriction on Publication: Pursuant to s. 486.4(1) of the Criminal Code, no information that could identify the victim or a witness in this case shall be published in any document or broadcast or transmitted in any way.

Before: Boswell J.

Overview

[1] D.M. is on trial for sexually assaulting and sexually exploiting W.C., a young, intellectually disabled man. W.C. testified about three occasions when D.M. sexually abused him. The abuse included oral sex and anal intercourse.

[2] The timing of the three incidents is not entirely clear, but it is generally alleged that they occurred between the summer of 2015 and the end of that same year.

[3] D.M. testified and denied ever engaging in sexual activity with W.C. Obviously credibility is the central issue in the case.

[4] Defence counsel proposed to make the following submission in closing argument before the jury:

There are also some improbabilities in the story. Why did W.C. make his first disclosure to C.M., a person with whom he was not particularly close? Why, if his story is true, did W.C. continue to go places alone with D.M. after D.M. had made him do things he didn’t like and which physically hurt him? Why did W.C. not remember the turkey trophies in D.M.’s bedroom if he was in fact in that bedroom? (Emphasis mine).

[5] Crown counsel objected to that part of the proposed submission that I have emphasized. She submitted that any suggestion that a victim of sexual assault should act in a particular way – specifically to avoid his or her abuser – is based on myth and stereotype and is not relevant.

[6] The arguments of counsel were brief, as the issue arose immediately before defence counsel was about to begin his closing submissions. The brevity of submissions does not, however, reflect the importance of the issue.

[7] I ruled, on the spot, that in the circumstances of this case and in light of existing case law, defence counsel could not make the impugned submission to the jury. I undertook to give written reasons for that spot decision. The following reasons are offered in satisfaction of that undertaking.

[8] Given the way the issue was framed by counsel in argument, the following three questions must be addressed:

(i) Does the assertion that a victim of sexual assault should be expected to take steps to avoid his or her alleged abuser invoke stereotypes or myths?

(ii) Is evidence that a victim continued to have contact with his or her alleged abuser after being sexually assaulted always irrelevant?

(iii) Is evidence that W.C. continued to have contact with D.M. after allegedly being sexually abused by him relevant to the jury’s assessment of W.C.’s credibility in this case?

The Positions of Counsel

[9] The position of the Crown is that any suggestion that a complainant in a sexual assault trial is less worthy of belief because he or she failed to avoid having contact with the accused is improper. It is a suggestion based entirely on a stereotypical expectation about how a victim of sexual abuse should act.

[10] The Crown relied on the Alberta Court of Appeal’s ruling in R. v. A.R.J.D., 2017 ABCA 237, affirmed 2018 SCC 6. In A.R.J.D., the accused was acquitted of three sexual offences he was alleged to have committed against his step-daughter when she was between 11 and 16 years old. The trial judge concluded that he had a reasonable doubt about the guilt of the accused based on concerns he had with the complainant’s testimony. In particular, he ruled that he would have expected some effort on the part of the complainant to avoid the accused, had the alleged incidents occurred. The absence of such evidence, on its own, raised a reasonable doubt in the trial judge’s mind.

[11] The Crown appealed.

[12] The majority framed and answered the issue on appeal in one pithy paragraph as follows:

This appeal raises one issue: did the trial judge err by relying on an impermissible stereotype, or myth, about the behaviour of sexual assault victims in assessing the complainant's credibility and ultimately acquitting the accused? Specifically, that "one would expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change in behaviour such as avoiding the perpetrator." The answer is clear: he did. (Para. 5).

[13] Later in the ruling, the majority made the following observation:

The more important question is what, if anything, can evidence of a lack of avoidant behaviour by a complainant tell a trier of fact about a sexual assault allegation? The answer is simple—nothing. (Para. 39).

[14] The Crown relied on this statement as supporting the assertion that evidence of a lack of avoidant behaviour on the part of a complainant is never relevant in a sexual assault trial; or at least certainly not relevant in this one.

[15] Defence counsel argued that A.R.J.D. stands for the proposition that the continued contact between a complainant and an accused after alleged incidents of abuse cannot, on its own, undermine the credibility of the complainant’s evidence. But it remains one factor for the jury to consider in the overall context of the case. Defence counsel submits that evidence of this nature is analogous to evidence of delayed disclosure and should be treated in the same way. In other words, the jury should be instructed along the lines suggested by former Chief Justice McLachlin in R. v. D.(D.) 2000 SCC 43, 148 C.C.C. (3d) 41 at paragraph 65. Specifically,

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

Discussion

[16] I will address the three issues raised during argument in turn, beginning with the question of whether the assertion that a victim of sexual assault should be expected to take steps to avoid his or her alleged abuser invokes stereotypes or myths.

(i) Stereotypes and Myths

[17] The history of sexual assault jurisprudence in this country is regrettably replete with improper reasoning based on myths and stereotypes about how victims of sexual abuse act, or should act. Archaic, gender-specific notions about sexual abuse and its victims continued to be an entrenched part of Canadian law until well into the 20th century. Some of these notions tend to persist today, usually subtly, occasionally overtly.

[18] Experience has shown that tenacious ideas are not necessarily worthy ideas. The law is evolving and slowly, but hopefully surely, improper and unsupportable myths and stereotypes are being identified and weeded out of the jurisprudence.

[19] In R. v. Seaboyer, [1991] 2 S.C.R. 577, at para. 23, Justice McLachlan, later Chief Justice, spoke to two of the more pernicious myths known to the law, in the context of a challenge to the constitutionality of the “rape shield” provisions of the Criminal Code (s. 276):

The main purpose of the legislation is to abolish the old common law rules which permitted evidence of the complainant's sexual conduct which was of little probative value and calculated to mislead the jury. The common law permitted questioning on the prior sexual conduct of a complainant without proof of relevance to a specific issue in the trial. Evidence that the complainant had relations with the accused and others was routinely presented (and accepted by judges and juries) as tending to make it more likely that the complainant had consented to the alleged assault and as undermining her credibility generally. These inferences were based not on facts, but on the myths that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief. These twin myths are now discredited. The fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with the accused. Nor does it make her a liar. In an effort to rid the criminal law of these outmoded and illegitimate notions, legislatures throughout the United States and in England, Australia and Canada passed "rape-shield" laws. (I note that the term "rape shield" is less than fortunate; the legislation offers protection not against rape, but against the questioning of complainants in trials for sexual offences.)

[20] The “twin myths” identified in Seaboyer are not, of course, the only myths that have infected sexual assault laws and their application. Other persistent myths include, but are not limited to:

• Sexual assault is most often committed by strangers;
• A victim of sexual assault is likely to fight back;
• A woman may invite sexual assault by the manner in which she dresses or behaves;
• A person would not sexually assault someone they were not attracted to;
• A victim of sexual assault is likely to “raise hue and cry” immediately. In other words, a negative inference about the complainant’s credibility may be drawn as a result of a delay in disclosure; and,
• A victim of sexual assault is likely to avoid his or her abuser. In other words, an absence of evidence of avoidant behaviour may support a negative inference about the complainant’s credibility.

[21] This case engages an issue about when, if ever, defence counsel may point to an absence of evidence of non-avoidant behaviour and suggest that it should support a negative inference about the complainant’s credibility.

[22] This issue has been addressed in a number of recent trial and appellate decisions.

[23] The Alberta Court of Appeal’s passionately written ruling in A.R.J.D. makes it clear that an expectation that a victim of sexual abuse will demonstrate behaviours consistent with that abuse is an expectation based not on logic and/or common sense but on mythology. Moreover, comparing the behaviour of an actual complainant to a stereotypical complainant endowed with all of the behaviours that one “expects” to see in a sexual assault victim, and then using that comparison in the assessment of the complainant’s testimony, is an error of law.

[24] The Alberta Court’s ruling was upheld on appeal to the Supreme Court and has been cited, with approval, in a number of cases in Ontario, including by our own Court of Appeal in R. v. A.B.A., 2019 ONCA 124.

[25] The answer to the first question posed on the application has to be, in light of binding jurisprudence, yes. An assertion that a victim of sexual assault should be expected to take steps to avoid his or her alleged abuser is based on a myth – on a stereotypical victim who does not, in reality, exist.

[26] The more intriguing question raised on this application is whether, following A.R.J.D., there are any circumstances in which the absence of avoidant behaviour following an alleged sexual assault could ever be relevant?

(ii) A Lack of Evidence of Avoidant Behaviour is Not Automatically Irrelevant

[27] To be clear, when I use the phrase, “a lack of evidence of avoidant behaviour”, I am referring, more broadly, to evidence that a complainant and an accused continued to communicate with one another or to spend time together following an incident or incidents of alleged sexual abuse.

[28] My impression of the Crown’s argument is that her position was that an absence of evidence of avoidant behaviour on the part of a complainant is simply not relevant, ever, in a sexual assault trial. Given the brief arguments made on the point, it is quite possible that I am oversimplifying her position. Nevertheless, I think that the issue of whether such evidence could ever be relevant in a sexual assault trial is certainly a point worthy of discussion.

[29] Some of the language utilized by the Alberta Court of Appeal in A.R.J.D. tends to leave the impression that the majority of that court was of the view that a lack of evidence of avoidant behaviour can never be relevant in a sexual assault case. I refer back to para. 39, where the court said the following:

…[W]hat, if anything, can evidence of a lack of avoidant behaviour by a complainant tell a trier of fact about a sexual assault allegation? The answer is simple—nothing.

[30] Later, they added, at para. 43:

…[I]t is neither logical nor a matter of common sense to expect a child complainant to behave in any particular manner.

[31] It is important to note, however, that in A.R.J.D. the trial judge made his credibility findings based solely on a comparison between the complainant’s behaviour and the behaviour one would have expected of a victim of sexual assault. He said, specifically,

As a matter of logic and common sense, one would expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change in behaviour such as avoiding the perpetrator.

[32] What the appeal court made abundantly clear in A.R.J.D. was that it is not a matter of logic and common sense to expect that a victim of sexual assault will act in any particular way. This is especially true when the complainant is a child.

[33] I do not, however, read A.R.J.D. as suggesting that evidence of an absence of avoidant behaviour can never be relevant. What is not relevant is a comparison of the complainant’s behaviour with expected behaviour of the stereotypical sexual assault victim. This somewhat more nuanced interpretation of A.R.J.D. is apparent in the following passages of the appeal court’s decision:

A failure to demonstrate avoidant behaviour or a change in behaviour “must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse.” (Para. 42; emphasis mine; internal citations removed).

…[T]he trial judge misdirected himself by basing his credibility assessment of the complainant not on a proper evidentiary foundation, but on inappropriate judicial stereotyping…(Para. 45).

…[A]bsence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt – because we know that all sexual assault victims behave differently. (Para. 58; emphasis mine).

[34] The Supreme Court of Canada dismissed A.R.J.D.’s appeal in a short ruling released on February 9, 2019. Their ruling was based substantially on the reasoning of the Court of Appeal. They noted that the trial judge had erred by judging the “complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault.” (Para. 2; emphasis mine).

[35] All this is to say that a close reading of A.R.J.D. and cases from our own Court of Appeal that have followed (see, for instance, R. v. A.B.A., 2019 ONCA 124, as above, and R. v. L.S., 2017 ONCA 685) support the conclusion that a lack of evidence of avoidant behaviour may be relevant in cases where there is a proper evidential basis to support the drawing of a negative inference from the evidence. But clearly, a comparison of the complainant’s behaviour to that expected from a stereotypical sexual assault victim is not such a proper evidential basis.

[36] In short, “generalizations have no place in analyzing this type of evidence”: R. v. J.M., 2018 ONSC 344, at para. 66. See also R. v. G.A., 2017 ONSC 7493 at para. 154 (4).

(iii) A Lack of Evidence of Avoidant Behaviour is Irrelevant in This Case

[37] In this instance, the defence assertion that W.C.’s continued association with D.M., following alleged incidents of sexual abuse, supports a negative inference about W.C.’s credibility is not relevant because it is, in my view, based on a generalized notion about how a sexual abuse victim should act.

[38] W.C. was, biologically, 17 years old at the time of the alleged abusive incidents. But he functioned, intellectually, in the range of a small child. There are no valid presumptions about how he ought to have behaved after one, two or even three incidents of sexual abuse.

[39] W.C. undoubtedly would have had a difficult time mentally processing what had happened to him. He would have had a difficult, if not impossible time, knowing what an appropriate response might be to being sexually abused by someone he trusted. Moreover, as an expert psychologist testified at trial, he generally had difficulty identifying situations of danger and how to react to them.

[40] W.C. is also highly suggestible. He testified that D.M. told him not to tell anyone about what happened. D.M. was one of his only friends. His family was close to the family of D.M. and they socialized regularly. It is not particularly surprising that W.C. continued to act as he always had, notwithstanding what allegedly happened between him and D.M.

[41] There is no other evidence in the record to support a negative inference about W.C.’s credibility based on his continued association with D.M. W.C. confirmed, during cross-examination, that he did not like what D.M. did to him and it hurt. He was not asked, however, to explain why he continued to spend time with D.M. if D.M. was sexually abusing him. Based on my observations of W.C. I expect that he would not have been able to answer that question because he has great difficulty thinking about abstract concepts.

[42] In the result, any purported negative inference about W.C.’s credibility arising from his continued association with D.M. following alleged incidents of sexual abuse can only be based on stereotypical reasoning. And to invite the jury to engage in such reasoning would not be proper, or fair.

Boswell J. Released: July 4, 2019