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Evidence - Stereotypical Thinking (3). R. v. C.P.
In R. v. C.P. (Ont CA, 2026) the Ontario Court of Appeal considers allegations of stereotypical thinking, here in a sexual offence/mental illness context:1. The trial judge did not rely on myths and stereotypes about people living with mental illness
[13] The Crown argues that the trial judge’s assessment of the complainant’s reliability was based on speculation and myths and stereotypes because he relied on evidence about the complainant’s mental health issues to find her evidence unreliable in the absence of case-specific evidence of reliability concerns. In addition, the Crown argues that there was a violation of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), in that trial counsel did not specifically put to the complainant in cross-examination that the hallucinations and delusions she testified about in the time frame of the allegations were not caused by the street drugs she was taking, as she asserted, but rather were caused by the mental health condition she lived with.
[14] The resolution of this issue does not turn on the interpretation of legal principles. The jurisprudence is clear that it is an error of law for a trial judge to reason from the fact of a complainant having a mental health diagnosis – alone – to a conclusion that the complainant’s evidence is not reliable, absent case-specific evidence of reliability concerns about the complainant’s evidence: R. v. Kruk, 2024 SCC 7, 433 C.C.C. (3d) 301, at para. 41; R. v. J.D., 2024 ONCA 286, at para. 16; R. v. Summerhayes, 2012 ONSC 499, at para. 8; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 143. The parties do not dispute the applicable law.
[15] However, I am not persuaded that the reasons for judgment show that the trial judge relied on myths and stereotypes related to individuals living with mental illness or speculation in the reasons for judgment. Nor am I persuaded that there was any violation of the rule in Browne v. Dunn.
[16] The reasons show that the trial judge was alive to the need for trial judges not to rely on myths or stereotypes. He instructed himself in his reasons both about the need to approach the assessment of a witness’s credibility and reliability with reference to “criteria appropriate to her mental development, understanding, and ability to communicate”, referencing R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134; and on the need to avoid reasoning based on myths and stereotypes.
[17] In some cases, despite a correct self-instruction, a trial judge’s reasons will nonetheless show error. This is not such a case.
[18] The trial judge did not engage in the prohibited reasoning that because there was evidence that the complainant lived with mental health issues, this in itself made her less reliable. Rather, there was an evidentiary foundation in the evidence at trial for the trial judge’s concerns about the reliability of the complainant’s evidence related to her experiencing delusions and hallucinations. The findings made by the trial judge were available to him on the trial evidence and did not rely on myths and stereotypes.
[19] The evidence that supported the trial judge’s concerns about the complainant’s reliability based on her history of experiencing hallucinations and delusions, including during the time frame of the alleged offences, came from the complainant herself, her adoptive mother, and her brother:. The complainant testified[2] that during the time frame of the allegations, she experienced hallucinations and delusions on various occasions (which she described in detail). The complainant attributed these hallucinations and delusions to the street drugs she was taking. The complainant also confirmed that during the time period of the allegations, she was not taking her prescription medication used to treat hallucinations and delusions.
. The adoptive mother provided non-expert evidence about her observations of the complainant experiencing hallucinations and delusions over the years that the complainant lived with the adoptive family. The hallucinations and delusions observed by the mother involved the complainant hearing voices and speaking to people who were not, in fact, present. The complainant had been diagnosed with a genetic disorder that the family was advised caused the hallucinations and delusions. Doctors tried various prescription medications to treat the hallucinations and delusions, and eventually a combination of medications was found that reduced those symptoms. However, even when the complainant was on prescription medication, she still sometimes experienced hallucinations and delusions, although much less frequently. The adoptive mother last observed the complainant experience hallucinations or delusions when the complainant was in grade eight, which was approximately one year prior to the time period of the allegations.
. The complainant’s brother gave evidence of one event during the time frame of the allegations when he observed the complainant having delusions. The details of this event he provided were confirmatory of one of the events of hallucinations or delusions that the complainant testified about. [20] Thus, there was evidence that: (1) the complainant had a history of experiencing hallucinations and delusions; (2) although those symptoms were greatly reduced when she was on appropriate prescription medication, she stopped taking that medication in the time period of the allegations; and (3) evidence from the complainant and her brother that she experienced hallucinations or delusions in the time period of the allegations.
[21] Crown counsel argued that the trial judge ought not to have relied on the adoptive mother’s evidence about the complainant’s hallucinations and delusions when they lived together (until the complainant was in grade eight), because those delusions were based on a specific medical condition, while the complainant testified that the delusions and hallucinations she experienced in the time period of the allegations were caused by her consumption of street drugs. The Crown also argued that the adoptive mother’s evidence did not address the time period of the allegations, but was of the complainant experiencing hallucinations and delusions in an earlier time period.
[22] There are two problems with these arguments. The first problem is that there is nothing in the jurisprudence that would impose on a trial judge a restriction that if there is evidence that a complainant experienced hallucinations and delusions due to, arguably, different causes, the trial judge is required to silo his consideration of the evidence by the trigger for the hallucinations.
[23] The second problem is that the evidence before the trial judge does not support the clear demarcation of causes of the complainant’s delusions and hallucinations contended for by the Crown. As noted above, the adoptive mother’s evidence was that the complainant’s delusions and hallucinations improved when she was on prescription medication for them, but did not entirely go away. The last time the adoptive mother saw the complainant have delusions or hallucinations was when the complainant was in grade eight, which was approximately one year prior to the time period of the alleged offences. I pause to note that the adoptive mother had no opportunity to observe the complainant after that time because, under the terms of her separation from the adoptive father, the complainant lived with her adoptive father from early 2022, and thereafter the complainant went to live with the respondent.
[24] The complainant’s evidence was that she stopped taking her prescription medication during the time she was living with the respondent, but was taking various street drugs.
[25] Thus, there was an evidentiary foundation that the complainant had hallucinations and delusions both within one year of the alleged offences and during the time of the alleged offences, and that her hallucinations and delusions were worse when she was not taking prescription medication for them and she had stopped taking her prescription medication during the time of the alleged offences.
[26] The trial judge was not required to accept the complainant’s evidence that her hallucinations and delusions in the time period of the alleged offences were solely due to street drugs. In any event, the source of the hallucinations and delusions does not matter. There was a sufficient evidentiary foundation for the trial judge to have concerns about the complaint’s reliability without those concerns being based in myths and stereotypes: see Kruk, at para. 65.
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