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Evidence - Stereotypical Thinking (3). R. v. Fede
In R. v. Fede (Ont CA, 2026) the Ontario Court of Appeal dismissed a Crown appeal, here brought against an acquittal for "one count of sexual assault".
Here the court considered the evidentiary concepts of 'myths and stereotypes' as they relate to sexual behaviour and their tension with fact issues "that are legitimately probative of credibility and reliability":[69] Second, I am not persuaded that reliance on these inconsistencies engaged pernicious myths or stereotypes. As Martin J. observed in Kruk, at para. 37:Myths 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. [70] Myths and stereotypes may be packaged in different ways, some more subtle than others. Judges are under an obligation to prevent stubborn misconceptions from contaminating the fact-finding process. Judges must also be vigilant to identify and prohibit reasoning based on new myths and stereotypes that emerge from modern social and sexual mores.
[71] Myths and stereotypes are offensive, not only because they are demeaning and offensive to the rights of complainants, but because they undermine the integrity of the fact-finding process. They are false notions about how people are likely to behave, rooted in discriminatory beliefs and sweeping generalizations. Myths and stereotypes not only perpetuate historical discrimination, but they distort the fact-finding process by injecting irrelevant and misleading considerations into the reliability and credibility equations.
[72] However, it is important to distinguish between considerations that engage stereotypes and those that are legitimately probative of credibility and reliability. In order for the Crown to establish an error of law, it must demonstrate that the reasoning process in the court below was marred by “ideas and beliefs that are not empirically true”, or discredited notions about the attributes of victims or offenders: Kruk, at para. 37.
[73] It was open to the trial judge to conclude that, based on the identified inconsistencies, he could not be convinced of the reliability of the complainant’s account beyond a reasonable doubt. This chain of reasoning did not promulgate discredited myths or assumptions about sexual assault complainants. To the contrary, trial judges have an obligation to engage and grapple with inconsistencies that arise in the evidence, both as between witnesses, and within a single witness’s account. The failure to grapple with inconsistencies can itself give rise to error and undermine the sufficiency of reasons.
[74] This ground of appeal must be dismissed. . Heegsma v. Hamilton (City) [credibility and mental health]
In Heegsma v. Hamilton (City) (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of a JR Charter s.7 and s.15 "challenge the City of Hamilton’s by-law that prohibits installing tents and sleeping in public parks in the City and to challenge the City’s actions removing them from public parks in Hamilton during the relevant period" seeking declarations and damages.
Here the court allows the appellant's argument that the trial judge engaged in stereotypical reasoning grounded in stereotypical thinking about mental illness:[70] The application judge did not do an individualized assessment of the appellants’ credibility and reliability. His central rationale for preferring the City’s evidence was that all, except for one the appellants, lived with mental health conditions and addiction issues which he said can affect perception and memory. On this basis, he concluded that their evidence was unreliable.
[71] It was an error for the application judge to assess the credibility and reliability of the appellants’ evidence on a group basis with no analysis of their specific evidence. Mental health and addiction, and their effects, are highly individualized. It was improper for the application judge to draw broad conclusions about the credibility and reliability of the appellants’ evidence, collectively, simply by asserting that mental illness and addiction can affect perception and memory: R. v. C.P., 2026 ONCA 333, 10 C.R. (8th) 394, at para. 14. It was also insufficient for the application judge to state, without particularization, that “some” of appellants’ evidence was hazy, and to rely on this to make adverse credibility findings against the appellants as a whole.
[72] More importantly, it was an error for the application judge to rely on myths and stereotypes about mental illness and addiction to find that the appellants’ evidence was not credible. This was an error of law: C.P., at para. 14; R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 41, 57. There may be individuals who live with mental health conditions or addiction issues whose memories are impacted by those circumstances. But the application judge’s apparent blanket assumption that the appellants’ evidence was unreliable because of those considerations perpetuates myths and stereotypes about some of the most vulnerable people in our society. It was incumbent on the application judge to analyze their evidence individually and, if he rejected it based on this individual assessment, to articulate why, without resorting to myths and stereotypes.
[73] In the absence of a proper analysis of the evidence, the application judge’s finding that there were no nighttime evictions cannot stand. This finding was fundamental to the application judge’s decision that the City did not violate the appellants’ s. 7 Charter rights and it therefore affected the whole decision.
[74] The City submits that, even if the application judge had conducted an individual assessment of the appellants’ credibility, he would have reached the same conclusion that there were no nighttime evictions. The City invites this court to conduct that assessment. I do not accept this submission. As the appellants point out, at least four of them refer to nighttime evictions in their affidavits or in cross-examination. It was incumbent on the application judge to consider and assess the evidence of the individual appellants in the context of the evidence as a whole without resorting to myths and stereotypes. It is not for this court to conduct this credibility assessment. . R. v. A.M.
In R. v. A.M. (SCC, 2026) the Supreme Court of Canada dismissed a Crown criminal appeal, here brought against an Ontario Court of Appeal ruling that considered "the test for applying s. 276 [SS: 'Admissibility of Sexual Activity Evidence - Evidence of complainant’s sexual activity'] to offences that are not specifically enumerated in that section".
The court considers the underlying theme of stereotypical or 'myths' (a form of 'propensity' reasoning) that underlies CCC s.276, here were the complainant had engaged in sex work:(1) Reliance on Myths and Stereotypes
[87] Reliance on myths and stereotypes, including those beyond the twin myths, jeopardizes the court’s truth-seeking function (see R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2, per L’Heureux‑Dubé J., concurring) and has “no place in a rational and just system of law” (R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 31). This is because myths and stereotypes are predicated on “false logic” (R. v. Boone, 2016 ONCA 227, 347 O.A.C. 250, at para. 37, quoting R. v. W.H., 2015 ONSC 3087, at para. 10). The dangers inherent in reliance on myths and stereotypes were canvassed by Martin J., as a trial judge, in R. v. G. (C.M.), 2016 ABQB 368, 41 Alta. L.R. (6th) 374, at para. 60:Broadly speaking, myths and stereotypes rest on untested and unstated assumptions about how the world works or how certain people behave in particular situations. They often involve an idealized standard of conduct against which particular individuals are measured. [88] Myths and stereotypes remain a pernicious threat to the criminal trial process. Despite the risks associated with impermissible reliance on myths and stereotypes, under Canadian law, evidence of prior sexual history is not categorically irrelevant or inadmissible (see L. Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” (2019), 44 Queen’s L.J. 316, at p. 346). Rather, “the law prohibits stereotypical or discriminatory lines of reasoning flowing from th[is] for[m] of evidence, but acknowledges that [it] may be relevant for other, legitimate inferential purposes” (p. 346; see also L. Dufraimont, “Current Complications in the Law on Myths and Stereotypes” (2021), 99 Can. Bar Rev. 536, at p. 550). As this Court stated in Kruk, “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” (para. 65).
[89] In this case, the evidence the respondents sought to adduce related to the commercial nature of the complainant’s work, not its sexual nature. Contrary to the Crown’s argument that the evidence could lead to impermissible twin-myth reasoning, the evidence of A.K.’s previous sex work was being proffered to suggest that she previously pursued work in the sex trade voluntarily and that the respondents did not lure or exploit her into working in the industry. As the intervener the Criminal Lawyers’ Association (Ontario) points out, the sexual nature of the complainant’s prior sex work does not go to the core of the evidence’s function, which is to provide context for A.K.’s level of autonomy, decision-making, and the power dynamics that shaped her relationship with the respondents.
[90] I agree with the Court of Appeal that “evidence of A.K.’s prior working arrangements was relevant to a proper understanding of the true nature of her relationship” with the respondents (para. 118). This evidence could assist in countering the Crown’s theory that the respondents capitalized on A.K.’s substance abuse issues in coercing her into sex work. The Court of Appeal correctly noted that the proposed cross-examination of A.K. was not intended to be used for impermissible purposes and that, if it crossed permissible bounds, the trial judge would have the authority to intervene.
[91] Undoubtedly, in cases such as this, trial judges must be vigilant in ensuring that evidence is not being proffered to advance improper propensity reasoning. Evidence of a complainant’s prior sex work should not be adduced to show a propensity to engage in sex work or sexual activity generally. Nor does a voluntary decision to engage in sex work at one point logically lead to the inference that a complainant is therefore less susceptible to exploitation, influence, coercion, or control generally. However, it is legitimate for the defence to lead evidence showing how a complainant’s prior experience informs their perspective on the nature and quality of the relationship with the accused. Such evidence is not being proffered to show a propensity to act in a certain way. Rather, it advances an inference about a complainant’s state of mind or the broader contextual or commercial circumstances that may be relevant in evaluating exploitation.
(2) The Exercise of the Court’s General Discretion
[92] The Crown submits that reliance on the trial judge’s general discretion to halt inappropriate cross-examination is an insufficient safeguard that cannot replace s. 276’s protective function. Moreover, the trial judge’s discretion is insufficient because it is retrospective — trial judges can only intervene once counsel has asked the complainant a question.
[93] The respondents submit that the trial judge’s discretion is sufficient to protect the integrity of the trial. Trial judges are well positioned to ensure that impermissible myths and stereotypes do not impact the truth-seeking function of the trial.
[94] As this Court noted in Goldfinch, trial judges are the “ultimate evidentiary gatekeepers” (para. 75; see also Barton, at para. 68; Kinamore, at paras. 3 and 44). Using their general discretion to safeguard the truth-seeking function of the trial is a foundational tenet of the criminal process. Importantly, there are several discriminatory myths and stereotypes beyond the twin myths that require trial judges to exercise vigilance in their gatekeeping role, for example, that a complainant’s delay in disclosure undermines their credibility (see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63), that a complainant’s failure to dress modestly indicates they are more likely to consent to sexual activity (see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 82 and 88-89, per L’Heureux-Dubé J., concurring), or that associating with the accused after an alleged sexual assault suggests there was consent (see R. v. A. (A.B.), 2019 ONCA 124, 145 O.R. (3d) 634, at paras. 6-12; for a broader discussion on myths and stereotypes, see Kruk, at paras. 36 and 41).
[95] While several myths and stereotypes do not call for statutory pre-screening, trial judges are required to monitor against impermissible inferences from infecting the reasoning process. The general discretion afforded to trial judges is an important tool to maintain the integrity of the trial process for all participants. If evidence is proffered for the purpose of demeaning the complainant or capitalizing on prejudices against sex workers, trial judges should recognize that evidence of that nature is impermissible and put a stop to such questioning (see Williams #2, at paras. 57-58).
[96] Sex workers are subject to many harmful and discriminatory myths and stereotypes. This Court recognized as much in both the majority and dissent in Barton. For the majority, Moldaver J. recognized several troubling stereotypical assumptions about Indigenous women involved in sex work, including that they:. are not entitled to the same protections the criminal justice system promises other Canadians;
. are not deserving of respect, humanity, and dignity;
. are sexual objects for male gratification;
. need not give consent to sexual activity and are “available for the taking”;
. assume the risk of any harm that befalls them because they engage in a dangerous form of work; and
. are less credible than other people. [para. 201] Justices Abella and Karakatsanis expressed a similar concern in their partial dissent (see paras. 230-31). In addition, like all victims of sexual offences, victims of commercial sex trade offences are vulnerable witnesses, for whom testifying can be deeply traumatizing.
[97] In this regard, s. 276 is not the only tool to protect the trial process from impermissible lines of questioning and inferential reasoning. On the contrary, trial judges have a variety of tools at their disposal to advance protection of vulnerable complainants. For example, it is an important part of the trial judge’s role to set appropriate limits on questioning, to intervene where questioning becomes improper, to provide appropriate limiting instructions to the jury to ensure that its deliberations are not infected by discriminatory myths or stereotypes, and to use their case management powers to ensure the permissible use of evidence (see Langford, at para. 48).
[98] As emphasized in Kinamore, trial judges should adopt a cautious approach when s. 276 is potentially engaged (para. 44). Where uncertainty exists about the application of s. 276, trial judges should follow the process set out in Barton: “. . . raise that issue with the parties at the earliest opportunity and, after giving the parties the opportunity to make submissions, issue a ruling on the matter” (para. 78). As part of that process, it is important for trial judges to consider the defence’s purpose in delving into the complainant’s prior or subsequent sex work.
(3) Conclusion
[99] The Court of Appeal did not rely on impermissible propensity reasoning that engaged the twin myths in determining the ambit of permissible cross-examination of the complainant in this case. . R. v. McKenzie
In R. v. McKenzie (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions on "three counts of assault".
Here the court considered the adequacy of a jury charge regarding 'myths and stereotypical' evidence:[33] The Supreme Court of Canada has explained the need to instruct jurors on the myths and stereotypes used to discredit complainants in sexual assault cases, including the myth that they will complain about the abuse at the earliest opportunity: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. The majority in D.D. suggested the following wording, at para. 65: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. [34] An instruction on myths and stereotypes can be appropriate in cases of intimate partner violence: R. v. J.W., 2025 ONCA 637, 178 O.R. (3d) 358, at para. 45, leave to appeal refused, [2025] S.C.C.A. No. 437; R. v. Dupuis, 2020 ONCA 807, 397 C.C.C. (3d) 266, at para. 78; and R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 129. . 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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