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Evidence - Assumptions


Part 2

. R. v. Kruk

In R. v. Kruk (SCC, 2024) the Supreme Court of Canada considers the role of 'common sense assumptions' in assessing testimonial credibility, and also the location of credibility findings as 'fact-findings' - thus falling under the 'palpable and overriding' standard of review:
[72] It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780, 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, 366 C.C.C. (3d) 293, the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.

[73] In 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 (CanLII); R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38 (CanLII)). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).


[81] Assessments 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. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621).[4] With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony.

[82] The 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 CanLII 217 (SCC), [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 errors of law, as at their core they relate to the extent to which a judge has relied upon a particular factor and how closely that factor is tied to the evidence. Although such 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.

[83] Trial 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. 12-18). In light of the practical difficulty of explaining the constellation of impressions that inform them, it is well-established that “particular deference” should be accorded to credibility findings (G.F., at para. 81). Appellate courts are comparatively ill-suited to credibility and reliability assessment, being restricted to reviewing written transcripts of testimony and often focussing narrowly, even telescopically, on particular issues as opposed to seeing the case and the evidence as a whole (Housen, at para. 14, citing R. D. Gibbens, “Appellate Review of Findings of Fact” (1991-92), 13 Advocates’ Q. 445, at p. 446).

[84] The 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 as a whole and refrain from parsing their “individual linguistic components”, as such an invasive approach would “undermine the trial judge’s responsibility for weighing all of the evidence” (Gagnon, at para. 19; see also Housen, at para. 72; G.F., at para. 69; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 33; R.E.M., at paras. 35 and 54). The need to review the entire record and for a full, flexible and functional approach when scrutinizing the findings of a trial judge is tied to the nature of the decision-making process at trial: reasons for judgment “are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict” (R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 525).

[85] The 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 assessment” of the witness’s testimony (R. v. Pastro, 2021 BCCA 149, 71 C.R. (7th) 296, at para. 67). Trial judges must “clearly articulat[e]” the basis for their assessments and point to “a nexus to the facts of the case” as opposed to relying on “assumptions about expected responses or conduct” (Tanovich, at p. 92). Yet, the proposed rule against ungrounded common-sense assumptions undercuts the rationale for the palpable and overriding error standard by inviting appeal courts to examine the specific language of particular common-sense reasoning and scrutinize it on a standard of correctness. The ensuing appellate review exercise quickly becomes highly interventionist, cumbersome, and almost entirely unpredictable.

[86] Invoking the proposed rule [SS: which was denied by the court], 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 inferences and engaged in reasoning not grounded in the evidence. In other cases, a review of the findings as a whole demonstrated that the trial judges had employed no unfounded assumptions and rather the credibility assessments had been conducted in relation to the parties and circumstances before the court. The jurisprudence in this area is variable, even volatile, and evinces the need for a more consistent approach to appellate review (see Perkins; Roth; Cepic; J.C.; see, contra, Pastro, at paras. 68-69; R. v. Greif, 2021 BCCA 187, at paras. 68-69 (CanLII); Adebogun; R. v. Al-Rawi, 2021 NSCA 86, 410 C.C.C. (3d) 385; R. v. K.B.W., 2022 SKCA 8; R. v. L.L., 2022 ONCA 50; R. v. Lapierre, 2022 NSCA 12; Kritik-Langer v. R., 2022 QCCA 657; R. v. Kavanagh, 2022 BCCA 225; R. v. D.B., 2022 SKCA 76, 415 C.C.C. (3d) 455; R. v. S.A., 2022 ONCA 642; R. v. S.M., 2023 ONCA 417).

[87] With 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. For example, in holding that the trial judge did not rely on a prejudicial generalization in refusing to believe the complainant had physically expressed her interest in the accused on the dance floor, the court emphasized that the “trial judge did not conclude simply that [the idea] was ‘not capable of belief’” but that “it was not capable of belief in the circumstances” (para. 33 (emphasis in original)). Similarly, approving of the trial judge’s conclusion that it was unlikely the parties would have shared a drink because they were effectively strangers, the court held, “[i]mportantly . . ., the trial judge did not say [Mr. Tsang’s] evidence about sharing a drink was ‘unbelievable’, it was simply ‘unlikely’ to have occurred” (para. 40).

[88] The 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 deem that premise “ungrounded” in the evidence at trial. The unstated barometer underpinning plausibility is a generalized expectation about how events tend to unfold and how people tend to behave in particular situations, meaning that common-sense assumptions represent a necessary measuring stick against which to assess the plausibility of a narrative. Yet the proposed rule leads judges into a catch-22, as the judge’s reasons (read functionally and contextually) must provide both the “what” and the “why” (G.F., at paras. 68-70).

[89] This 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.

[90] In 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. To some extent, the materiality inquiry associated with the rule against ungrounded common-sense assumptions — under which the appellant must show that such reasoning “mattered in arriving at the impugned factual finding” (J.C., at para. 100) — mitigates the categorical nature of an error of law. However, in my view, it remains preferable to assess whether an error has been made in the first place based on the palpable and overriding standard. An overriding error is necessarily material because it must be shown to have affected the trial judge’s decision — but it is important to emphasize that an overriding error affects not just an isolated finding of fact, which may or may not have played a role in reaching the outcome, but the trial judge’s decision as a whole. It is not enough for an appellant asserting palpable and overriding error to pull at leaves and branches and leave the tree standing; the entire tree must fall (South Yukon Forest Corp. v. Canada, 2012 FCA 165, 431 N.R. 286, at para. 46, cited in Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38, and Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 116).

[91] Overall, 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. There is simply no need for this Court to endorse a departure from that established approach — let alone one so substantial — by recognizing a new error whose far-reaching repercussions would reverberate across the entire criminal law.
. R. v. Kruk

In R. v. Kruk (SCC, 2024) the Supreme Court of Canada denied an appeal that sought to establish a new evidentiary rule against "ungrounded common sense assumptions". This would-be rule was born in an analogy to the already-accepted rule against sexual behaviour stereotypes that which barred prejudicial presumptions about a woman complainant's behaviour, eg.: that 'by wearing those clothes she was looking for it'. In this latter 'complainant' situation the law holds the use of stereotypes to be an 'error of law', such that an appellate court examines the trial judge's findings on a non-deferential 'correctness' standard of review. The court's conclusion here is that in any other context [ie. non-complainant sexual behaviour, and (apparently) entirely non-sexual as well] the use of 'ungrounded common-sense assumptions' could either be a finding of fact or law as assessed by the appeal court. While the courts haven't been clear here on what is meant by 'ungrounded', it appears to me as though they mean some form of 'corroboration' (either factual or circumstantial) of the 'common sense assumption':
I. Introduction

[1] These 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.

[2] For 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.

[3] The 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.


III. Analysis

[16] In 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 grounding an error of law.

[17] These 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 adopted should be approached based on first principles relating to credibility and reliability assessments and existing standards of review. When the rule comes into play in sexual assault cases in particular, constitutional imperatives call for the consideration of the Charter rights of both accused persons and complainants as well as the interests of society at large (R. v. Mills, 1999 CanLII 637 (SCC), [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). This approach is part of the obligation to strive towards “the fair, ethical and non-discriminatory adjudication of sexual assault cases” (D. M. Tanovich, “Regulating Inductive Reasoning in Sexual Assault Cases”, in B. L. Berger, E. Cunliffe and J. Stribopoulos, eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg (2017), 73, at p. 95).


A. The Proposed Rule Against Ungrounded Common-Sense Assumptions

[19] The 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. The Court of Appeal in Mr. Kruk’s case cited to the trio of cases and specifically quoted the rule as stated by the British Columbia Court of Appeal in Roth, while the Court of Appeal in Mr. Tsang’s case relied on the rule as stated in J.C.

[20] In 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 (paras. 35-36; see also para. 40). In Cepic, the Ontario Court of Appeal held that the trial judge’s characterization of the accused’s testimony as “implausible” and “nonsensical” was untethered to the evidence and reflected erroneous assumptions about what a young woman would do and stereotypes about male aggression (paras. 19-27). Both Perkins and Cepic were subsequently invoked in Roth, at para. 65, in which the British Columbia Court of Appeal articulated the following rule: “. . . although judges are entitled to rely on their human experience in assessing the plausibility of a witness’s testimony, they must avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence . . . .” The court went on to find that the trial judge had erred in relying on the speculative assumption that the accused, “a fit and healthy young man who regularly worked out and trained as a power lifter” (para. 56), would not fall asleep during a cab ride, erroneously leading the trial judge to reject the accused’s narrative.

[21] In 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 made two errors in his credibility assessment. First, the accused alleged that the trial judge impermissibly used stereotype to reject his testimony about expressly seeking the complainant’s consent before engaging in specific sexual acts — the trial judge had held that the accused’s testimony on this point was “too perfect, too mechanical, too rehearsed, and too politically correct to be believed” (para. 4). Second, the accused alleged that the trial judge had erred in characterizing the defence’s theory that the complainant had fabricated the allegations to conceal cheating from her boyfriend as relying on stereotype, when in fact it had been grounded in the evidence.

[22] The 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 modification of an existing “rule against stereotypical inferences”, the latter of which prevents judges from relying on stereotypes about how sexual assault complainants or accused persons are expected to act in assessing their credibility (J.C., at para. 63, citing Roth, at para. 129; R. v. A. (A.B.), 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5; Cepic, at paras. 14 and 24). The court considered that failing to abide by either rule was an error of law reviewable on a standard of correctness where the error played a material role in the impugned conclusion.

[23] The 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 general rule against ungrounded common-sense assumptions. Second, it classifies any breach of this rule as an error of law. Third, it takes the existing error of law barring the use of myths and stereotypes about sexual assault complainants and transposes it into a separate, parallel error of law relating to all factual assumptions about all witnesses, including the accused.

[24] Mindful 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 in sexual assault cases. In J.C., the court considered that because reliance on myths and stereotypes against sexual assault complainants is an error of law, it would be “equally wrong to draw inferences from stereotypes about the way accused persons are expected to act” (paras. 63; see paras. 72-74, citing R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218; A. (A.B.)). Embracing the proposed rule, other courts have agreed that this established error of law pertaining to myths and stereotypes about sexual assault complainants must also extend to other types of stereotypes or factual assumptions that can work to undermine an accused’s testimony. Collectively, these cases advance the notion that, although myths and stereotypes have traditionally operated to prejudice complainants, these same myths and stereotypes can simultaneously prejudice the accused (R. v. C.M.M., 2020 BCCA 56, at para. 139 (CanLII); R. v. Kodwat, 2017 YKCA 11, at para. 41 (CanLII); R. v. Thompson, 2019 BCCA 1, 370 C.C.C. (3d) 354, at paras. 56-57; R. v. T.L., 2020 NUCA 10, 393 C.C.C. (3d) 195, at para. 35).

[25] The 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 about complainants in assessing the testimony of accused persons. Going further, in Mr. Kruk’s case, the Court of Appeal expressly drew a parallel between the historic use of myths and stereotypes as applied against sexual assault complainants, and the use of improper assumptions more generally:
Historically, the issue of improper assumptions typically arose in the context of trial judges drawing adverse inferences about the credibility of sexual assault complainants based on discredited myths and stereotypes. The authorities are clear, however, that trial judges must not rely on assumptions and stereotypes in their assessment of testimony given by both sexual assault complainants and accused persons. [Emphasis added; para. 42.]
[26] The 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 could be said to constitute “assumptions” — which, in the ordinary course, were previously subject to review for palpable and overriding error — into errors of law reviewable on a standard of correctness. The rule also enlarged the well-established prohibition against myths and stereotypes about complainants — a relatively narrow error of law targeted at the fair assessment of a discrete category of witness testimony in a particular subset of criminal trials — well beyond its original scope, presenting it as the doctrinal basis for the creation of a far broader error that applies to credibility assessments of any witness in all criminal trials.
The court continues [at paras 27-66] to reason and conclude that this proposed new rule would be pernicious from a number of perspectives - including that it disregards the unique (and Charter-unique) situation of the sex assault complainant in terms of historical prejudice ('myths and stereotypes') regarding credibility, and the treatment of credibility and reliability findings generally.

. R. v. Kruk

In R. v. Kruk (SCC, 2024) the Supreme Court of Canada discusses 'common sense', as that term is used in the more specific term: 'common sense assumptions':
[99] Given 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. Such an approach accords due deference to the trial judges’ factual findings and the role common sense played in their testimonial assessments. At the same time, it should also be emphasized that common sense is far from a catch-all phrase that licenses any form of reasoning, no matter how faulty. Common sense is not always “common”, does not always make “sense”, and worst of all, may be based on falsehoods or discriminatory beliefs. However, so long as the trial judge’s use and invocation of common sense is appropriately constrained by the legal principles applicable to appellate review in general, there is nothing inherently objectionable about its use in testimonial assessment. If and when the permissible bounds of common sense have been exceeded, appellate courts may intervene. As Fitch J.A. succinctly summarized in Pastro (at para. 41):
Judges are entitled, and expected, to rely on their life experience in making credibility findings. This necessarily includes drawing common-sense inferences from established facts. Juries are routinely instructed along the same lines — to come to common-sense conclusions based on the evidence they accept. Where it is apparent from a review of the reasons as a whole that a credibility assessment is rooted in the evidence, and is the product of a case-specific determination about what the complainant and accused did or did not do, there will be no basis for appellate intervention, absent palpable and overriding error in fact . . . . [Emphasis added; citations omitted.]
. R. v. E.D.J-C.

In R. v. E.D.J-C. (Ont CA, 2023) the Court of Appeal considers the related evidence rules against admitting 'ungrounded common-sense assumptions' and 'stereotypical inferences':

[3] The relevant law is not in dispute. The “rule against ungrounded common-sense assumptions” requires judges to avoid speculative reasoning by invoking “common-sense” assumptions, including about human behaviour, that are not grounded in the evidence or appropriately supported by judicial notice: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 58, 61.

[4] The overlapping “rule against stereotypical inferences” prohibits credibility reasoning based on stereotypical inferences or “prejudicial generalizations” about human behaviour: J.C., at paras 63, 65. This rule prohibits inferences and not the admission of kinds of evidence. It is not an error to admit evidence that could be used to draw stereotypical inferences where that evidence is offered in support of permissible inferences: J.C., at paras. 68-69.

[5] Drawing common sense inferences not grounded in the evidence or stereotypical inferences will not constitute a reversible error unless the impugned inference plays a material or important role in reaching a material conclusion: J.C., at para. 71.
. R. v. Griffin

In R. v. Griffin (Ont CA, 2023) the Court of Appeal considered ungrounded assumptions in fact-finding:
[30] The appellant submits that the trial judge’s reasoning violates the rule against ungrounded common-sense assumptions, which requires that trial judges avoid speculative reasoning that invokes common-sense assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 58. ...


[39] Importantly, the rule against ungrounded common-sense assumptions does not prohibit using human experience about human behaviour to interpret evidence. Rather it prohibits “using ‘common-sense’ or human experience to introduce new considerations, not arising from the evidence, into the decision-making process, including considerations about human behaviour”: J.C., at para. 61.

[40] In the context of the record and her reasons as a whole, I do not read the trial judge’s reasons as being premised on ungrounded common-sense assumptions or as comparing the appellant’s behaviour to that of a hypothetical stepfather, as claimed by the appellant. Rather, I read her findings as an assessment of the plausibility of the appellant’s overall account grounded in his own evidence concerning his interactions with the complainant and his reaction to her account of her circumstances. Further, I do not read the trial judge’s finding of implausibility or rejection of his denials as meaning she was satisfied the appellant engaged in comfort touching. Rather, I read these findings as meaning she concluded that the appellant’s evidence was contrived. Finally, I do not consider the trial judge’s findings in any way unfair.


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Last modified: 11-03-24
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