IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal for Alberta)

Transcription

1 BETWEEN: IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal for Alberta) A.R.J.D. - and - File No Appellant (Respondent) HER MAJESTY THE QUEEN Respondent (Appellant) APPELLANT S FACTUM Filed by the Appellant Pursuant to Rule 42 of the Rules of the Supreme Court of Canada Counsel for the Appellant: Agent for the Appellant: Kent J. Teskey, Q.C. Moira S. Dillon Lindsay Tate Supreme Law Group Pringle Chivers Sparks Teskey Slater Street #300, Street Ottawa, ON K1P 5H9 Edmonton, AB T5J 0P6 Ph Ph Fax Fax kteskey@pringlelaw.ca mdillon@supremelawgroup.ca ltate@pringlelaw.ca Counsel for the Respondent: David A. Labrenz, Q.C. Alberta Justice and Solicitor General Appeals, Education & Prosecution Policy Branch 3 rd Flr., Bowker Building Street Edmonton, AB T5K 2E8 Agent for the Respondent: D. Lynne Watt Gowling WLG (Canada) LLP Elgin Street Ottawa, ON K1P 1C3 Ph Ph Fax Fax david.labrenz@gov.ab.ca lynne.watt@gowlingwlg.com

2 TABLE OF CONTENTS PART I: OVERVIEW AND STATEMENT OF FACTS Overview of Appeal Statement of Facts... 2 PART II: QUESTIONS IN ISSUE... 8 PART III: STATEMENT OF ARGUMENT The Crown has not raised the necessary question of law as required under s. 676(1)(a) of the Criminal Code of Canada (a) The Trial Judge s reasons about the complainant s after-the-fact behaviour do not raise a question of law that may ground a Crown appeal (b) Not every concern about how a trial judge evaluates after-the-fact behaviour of a complainant raises a question of law (c) Although this is not a case involving recent complaint reasoning, cases on this issue help highlight how the ultimate assessment of a complainant s evidence remains a question of fact, reserved for the trier of fact (d) The majority s decision in the Court below establishes a sweeping rule of evidence that prohibits the admission of evidence of the complainant s after-the-fact behaviour, unless it supports an inference of guilt In any event, the Trial Judge did not make the asserted error in law, namely, relying on stereotypical assumptions about how a victim of a sexual assault in these circumstances would behave (a) It is not clear from the record that the Trial Judge relied upon stereotypical beliefs about how a complainant would behave, as opposed to simply making a factual finding grounded in the particular facts of this case PART IV: SUBMISSIONS ON COSTS PART V: ORDERS SOUGHT PART VI: TABLE OF AUTHORITIES... 32

3 1 PART I: OVERVIEW AND STATEMENT OF FACTS 1. Overview of Appeal [1] This case is about an experienced trial judge s finding that he had a reasonable doubt. The Trial Judge heard a case involving the alleged sexual assault of a child and concluded the Crown had not proven the case beyond a reasonable doubt and acquitted the Appellant. In doing so, he did not err in law by relying on impermissible stereotypical reasoning about how a sexual assault complainant should behave, instead he reviewed the evidence, and relied on the actual conduct of the actual complainant in the context of the actual record before him. [2] The Crown s right to appeal an acquittal is very limited. The Crown has no right to appeal a so-called unreasonable acquittal. By framing the Trial Judge s decision as being founded on stereotypical reasoning about how a complainant should respond to sexual abuse, the majority decision at the Alberta Court of Appeal characterized the Trial Judge s finding on reasonable doubt as an error in law. However, careful consideration of the Trial Judge s reasons reveal instead that he clearly and repeatedly gave proper self-instructions about the need to avoid impermissible stereotypical reasoning, and that he was left in a reasonable doubt based on the evidence, and absence of evidence, before him in coming to his decision. [3] This Court and other appellate courts across the country have confirmed that evidence about after-the-fact conduct by a sexual assault complainant may properly be considered by a trier of fact in making findings on credibility and that a trier of fact is given latitude to consider afterthe-fact behaviour in the context of the specific facts of the case so long as it does not stray into reliance on impermissible stereotypes. This does not constitute a legal error, and none was made by the Trial Judge in this case. [4] To find otherwise would compromise adjudicative finality, and create a Crown right to appeal that does not otherwise exist and which is antithetical to Parliamentary intent.

4 2 2. Statement of Facts [5] The Appellant was charged with three counts of sexual assault and sexual interference involving the Complainant, his step-daughter. The charges alleged a period of sexual misconduct stretching from 2008 until 2014, when the Complainant provided a statement to the RCMP. [6] The Complainant s statement to police detailed a lengthy history of sexual assaults committed by the Appellant, said to have occurred on a regular basis and over many years, approximately from age 10 to age 16. At trial, this statement was admitted into evidence under s of the Criminal Code and adopted by the Complainant during her testimony. 1 Both the videotape of the statement, and an edited transcript of the videotape were entered as exhibits at the trial. 2 Complainant s Evidence [7] In her statement to police, the Complainant advised that the Appellant began touching her inappropriately after the family moved to Onoway, Alberta when she was in grade 4. 3 She described the Appellant touching her inappropriately two or three times a week since the age of 10 by grabbing at her breasts and putting his hand in her pants, although she amended the frequency of the touching later in the interview stating that sometimes it happened two or three times a week and sometimes it didn t. 4 [8] She told police that the Appellant touched her both over and under her clothing, but never penetrated her vagina. 5 She stated the touching was accompanied by comments from the Appellant that like I feel good or some stuff like that and requests that she not tell anybody. 6 She also 1 Transcript of the Trial at 7/34-8/2 ( Trial Transcript ) [Appellant s Record, Volume 2, Part V, Tab 7]. 2 Trial Transcript at 8/ Exhibit 2 - Transcript of C.M. Interview at 3/14-19, 4/2 ( Interview Transcript ) [Appellant s Record, Volume 1, Part IV, Tab 6]. 4 Interview Transcript at 4/17-18, 5/5-6, 8/ Interview Transcript at 10/1, 18/14-17, 20/ Interview Transcript at 5/11-14.

5 3 told police that the touching had sometimes occurred when other people were in the home, including her mother. 7 [9] In addition to the touching, the complainant relayed one incident that was different from the rest and took place in their home at Alberta Beach when she was 13 or She said that she and the Appellant were in his room watching a show when he undressed them both and rubbed his penis on her by dry humping. 9 The Appellant then ejaculated on her and subsequently cleaned her off with a towel. 10 [10] When asked by the police officer what her relationship was like with the Appellant, she advised it s okay I guess and that they fought sometimes about school and they would yell at each other during these fights. 11 [11] The Complainant was 17 years old at the time of the trial. She adopted her statement to police as being truthful and provided further testimony. She testified that the Appellant touched her breasts and vaginal area over 50 times over a period of six years 12 but under cross-examination confirmed that she was not sure how many times it happened, 13 and that this was only a guess. 14 The Complainant testified that the touching continued up to the week before she reported the incidents to the RCMP. 15 [12] Under cross-examination, the Complainant testified that although some of the touching happened while other people were in the house she did not scream or ask for help because she did not want anyone to know about it 16 and later explained that she did not want people to know at the time because it changes everything Interview Transcript at 15/ Interview Transcript at 9/ Interview Transcript at 10/7-19, 9/ Interview Transcript at 20/ Interview Transcript at 12/ Trial Transcript at 10/ Trial Transcript at 23/ Trial Transcript at 27/38-40 to 28/ Trial Transcript at 10/ Trial Transcript at 22/ Trial Transcript at 28/24-29.

6 4 [13] The Complainant also testified that, despite the alleged abuse, nothing was unusual about the stepparent-stepchild relationship with the Appellant. She testified that their relationship was otherwise unremarkable. Specifically, she agreed that her relationship with the Appellant was okay and was kind of just neutral. 18 The Complainant further agreed that she was not uncomfortable around the Appellant, including that the Appellant sometimes drove her to school. 19 Appellant s Evidence at Trial [14] The Appellant testified at trial. He denied committing the alleged assaults. As part of his testimony he cited a general lack of opportunity to commit the offences. He also confirmed that there was nothing particularly unusual about the stepparent-stepchild relationship with the Complainant. Other than minor arguments, the Appellant testified that he had a pretty good relationship with the Complainant and that he never noticed the Complainant trying to avoid him. 20 Trial Judge s Decision and Reasons for Judgment Alberta Court of Queen s Bench [15] The Trial Judge reviewed both the Complainant and the Appellant s evidence. He noted in his reasons that the Complainant alleged the Appellant touched her breasts and vaginal area, both over and under her clothes, probably over 50 times during the period she resided with the Appellant. He noted that she also testified that on one occasion, the Appellant undressed them both and rubbed his penis against the left side of her hip, ejaculating on her. She went to the police and provided a video interview on July 31, 2014, shortly after telling her mother after one of the touching incidents. 21 [16] On review of the Appellant s evidence, the Trial Judge noted that he denied the allegations. The Appellant denied ever being at home with the Complainant in the afternoon in part due to his work schedule, and this was relevant because the Complainant had testified that the incident where ejaculation occurred had taken place in the afternoon. The Trial Judge noted the Appellant s further 18 Trial Transcript at 14/26-28, and 14/ Trial Transcript at 23/ Trial Transcript at 37/29-30, 35/18-20, and 34/ Trial Transcript at 59/5-13.

7 5 testimony that he was never alone with the Complainant in any room of the house, except maybe the kitchen, and that the Complainant s mother did not work and was therefore always at home. 22 [17] In his reasons for judgment, the Trial Judge articulated the presumption of innocence, the standard of proof beyond a reasonable doubt, and the correct onus of proof. 23 He determined that the case turned on the internal and external consistency of the stories offered. 24 Both counsel submitted, and the Trial Judge recognized, that the case came down to an application of the principles in R v W(D). 25 [18] Turning first to the Appellant s evidence, the Trial Judge found it incredible that he was never alone with the Complainant anywhere other than the kitchen, and had no doubt that over the six year period, the Appellant would have had the opportunity to commit at least some of the alleged acts. 26 [19] Dealing next with the Complainant s evidence, the Trial Judge found that she was not very precise as to the number of instances of touching or the details surrounding those events, however, found that was likely explained by her recounting events that had taken place over the preceding six year period. He found that her description of the nature of the offences was not exaggerated, but also found that while her testimony that the touching happened two or three times a week was likely an exaggeration, he determined she was simply guessing, and that it did not make her evidence any less believable or reliable. 27 [20] With respect to the Complainant s evidence that she did not complain immediately and did not cry out or seek help from her mother or other family members, the Trial Judge gave an unambiguous and unquestionably accurate self-instruction about the need to avoid relying on the doctrine of recent complaint, or impermissible myths about how a usual victim of sexual assault is supposed to behave: 22 Trial Transcript at 59/ Trial Transcript at 59/ Trial Transcript at 60/ R v W(D), [1991] 1 SCR Trial Transcript at 60/5-6, and 60/ Trial Transcript at 60/22-35.

8 6 I do not discount the complainant s credibility because she delayed complaint or because she did not cry out or search out help from her mother or other family members. To judge her credibility against those myths of appropriate behaviour is not helpful. The supposed expected behaviour of the usual victim tells me nothing about this particular victim. [Emphasis Added] 28 [21] Immediately after this self-instruction, the Trial Judge concluded that the Crown had not proven the allegations beyond a reasonable doubt and reached the crucial finding ultimately impugned by the Respondent, and the majority of the Court below: Having said all of that, however, given the length of time that these events occurred over, and the fact that the most serious event occurred months before [the complainant] complained, I would have expected some evidence of avoidance either conscious or unconscious. There was no such evidence. 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 of behaviour such as avoiding the perpetrator. While I recognize that everyone does not react in the same way, the evidence suggests that despite these alleged events the relationship between the accused and the complainant was an otherwise normal parent/child relationship. That incongruity is significant enough to leave me in doubt about these allegations. 29 [22] He found the Appellant not guilty on all three counts before the Court and dismissed the charges. Alberta Court of Appeal [23] The Crown appealed the acquittal to the Alberta Court of Appeal arguing the Trial Judge had erred 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. 30 The majority of the Alberta Court of Appeal found that this issue raised a question of law that was subject to appellate review. The majority went on to conclude that the acquittals were directly 28 Trial Transcript at 60/ Trial Transcript at 61/ Reasons for Judgment of the Court of Appeal of Alberta, 2017 ABCA 237 ( ABCA ) at para. 5 [Appellant s Record, Volume 1, Part I, Tab 4]

9 7 tied to a legal error of applying an impermissible stereotype or myth that avoidant behaviour was expected, and concluding the absence of such behaviour negatively impacted the complainant s credibility. 31 The Crown s appeal was allowed, and a new trial was ordered. [24] In his dissenting reasons, Slatter J.A. found that the Crown s appeal did not raise a question of law and that the Crown had not demonstrated that the Trial Judge had erred in law by relying on impermissible stereotypes and myths. He held that this appeal is not, however, in substance about an error of law, or about an error of fact, or about a finding of credibility. It is a challenge to the conclusion of the trial judge that he was left with a reasonable doubt at the end of the case. 32 He went on to conclude that the Trial Judge was entitled to rely on his logic and common sense in assessing the evidence, or absence of evidence, in the record before him and to draw inferences from that evidence so long as he did not rely on prohibited reasoning based on forbidden stereotypes. 33 He found that the Trial Judge had not relied on impermissible stereotypes, and in fact, had clearly instructed himself not to do so. 34 He further held that even if the appeal raised a question of law, the Crown had failed to demonstrate that the trial judge had made an error: Determining if there is a reasonable doubt based on the evidence or absence of evidence is the particular mandate of the trial judge. Trial judges are entitled to rely on logic and common sense, so long as inferences are not based on stereotypical thinking. This trial judge self-instructed on the need to avoid prohibited lines of analysis. Assuming this record engages a question of law, the Crown has not shown that the trial judge made the asserted error, and the appeal should be dismissed. 35 [25] As a result of Slatter J.A. s dissenting reasons, the Appellant now appeals the Alberta Court of Appeal s decision to the Supreme Court of Canada as of right pursuant to section 691(2)(a) of the Criminal Code ABCA at para ABCA at para ABCA at para ABCA at paras ABCA at para Criminal Code, RSC 1985, C-46, s. 691(2)(a).

10 8 PART II: QUESTIONS IN ISSUE [26] The issues in this case are as follows: 1. The Crown has not raised the necessary question of law as required under s. 676(1)(a) of the Criminal Code of Canada. 2. In any event, the Trial Judge did not make the asserted error in law, namely, relying on stereotypical assumptions about how a victim of a sexual assault in these circumstances would behave. PART III: STATEMENT OF ARGUMENT 1. The Crown has not raised the necessary question of law as required under s. 676(1)(a) of the Criminal Code of Canada. (a) The Trial Judge s reasons about the complainant s after-the-fact behaviour do not raise a question of law that may ground a Crown appeal. [27] This appeal concerns an experienced Trial Judge s conclusion that the Crown had not proven its case beyond a reasonable doubt and a challenge by the Crown to that conclusion by framing it as an error in law. [28] It is a fundamental principle of Canadian law that the Crown is barred from appealing an acquittal on the sole basis that it is unreasonable, without asserting any other error of law leading to it. 37 The concept of an unreasonable acquittal is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt. 38 This Court in R v George very recently confirmed that Crown appeals are limited to questions of law and disagreement by an appellate court over the trial judge s weighing of evidence and drawing of inferences cannot support such an appeal: 17 Whether an error is legal generally turns on its character, not its severity (J.M.H., at paras ). In this case, the majority confused these two concepts; it translated its strong opposition to the trial judge s factual inferences (severity) into supposed legal errors (character). Here, that was 37 R v Biniaris, 2000 SCC 15, at para Biniaris at para. 33.

11 9 an improper approach, and it disregarded the restraint required by Parliament s choice to limit Crown appeals from acquittals in proceedings by indictment to question[s] of law alone (Criminal Code, s. 676(1)(a)). 24 While one may disagree with the weight the trial judge gave this evidence, no legal error arises from mere disagreements over factual inferences or the weight of evidence (J.M.H., at para. 28). Indeed, many of the majority s comments reveal that its discomfort with this evidence was not because it was irrelevant (which would have illustrated a misconception of principle, a legal issue: ibid., at para. 29), but because its relevance was marginal (a factual issue). The trier of fact is best situated to assign weight to evidence. 39 [29] There are important limits on the categorization of factually based errors as errors of law and as Freedman C.J.M. once observed: It is not usually difficult for an experienced Crown counsel to frame an appeal in language suggesting that a question of law is there involved. But the Chief Justice went on to note: a ground of appeal thus framed may on analysis prove to be without validity, for one of two reasons. It may, in the first place, be wholly without support in the record a theoretically good ground poised, as it were, in the air but not rooted in the factual situation facing the Court. Or, secondly, it may on examination prove to involve questions of fact rather than of law. Its form may give jurisdiction but its substance deny it. 40 [30] In R v JMH, Cromwell J. described the various categories of errors of law that may ground an appeal from an acquittal. 41 The majority of the Court of Appeal based its decision on one of these four categories: the assessment of the evidence on the basis of a wrong legal principle. 42 Cromwell J. elaborated on this category of error as follows (at paras ): This is another category mentioned in [R v. Morin, [1992] 3 S.C.R. 286]. In that case, Sopinka J. stated at p. 295, Failure to appreciate the evidence cannot amount to an error of law unless the failure is based on a misapprehension of some legal principle. In [R v. B. (G.), [1990] 2 S.C.R. 57], Wilson J. added important cautionary words concerning this basis for appellate intervention:... it will be more difficult in an appeal from an acquittal to establish with certainty that the error committed by the trial judge raised a question of law alone because of the 39 R v George, 2017 SCC 38, at paras. 17 and R v Odeon Morton Theatres (1974), 45 DLR (3d) 224 (Man CA), at p. 226, as cited in R v RGB, 2012 MBCA 5, at para R v JMH, 2011 SCC ABCA at para. 28 and 62.

12 10 burden of proof on the Crown in all criminal prosecutions and the increased importance of examining critically all evidence that may raise a reasonable doubt. [p. 75] This proposition was said by Lamer J. (as he then was) in [R v. Schuldt, [1985] 2 S.C.R. 592] to constitute the proper basis for the Court s decision in Wild v. The Queen, [1971] S.C.R In Schuldt, at p. 610, it was affirmed that except in the rare cases in which a statutory provision places an onus upon the accused, it can sometimes be said as a matter of law that there is no evidence on which the court can convict, but never that there is no evidence on which it can acquit as there is always the rebuttable presumption of innocence. This approach was also adopted in B. (G.) by Wilson J., at pp , and the point was further underlined in the concurring reasons of McLachlin J. (as she then was), at p. 79, where she wrote: In the absence of... misdirection the law is clear that doubts about the reasonableness of the trial judge s assessment of the evidence [in the context of a Crown appeal of an acquittal] do not constitute questions of law alone.... [31] The Crown s power to appeal against acquittal is especially narrowly circumscribed where the appeal is grounded in credibility findings: while appellate courts may reverse convictions on the basis of unreasonable verdict where the assessment of credibility is not supported by the evidence, this appellate power does not apply to Crown appeals on acquittal. 43 A Crown appeal, insofar as it attacks the trial judge s assessment of the credibility, reliability, and weighing of the evidence does not raise questions of law alone. 44 The question of whether the proper inference has been drawn by a trial judge from the facts established in evidence is a question of fact, 45 and therefore, not subject to a Crown appeal. Similarly, the question of whether or not the judge, on appreciating or weighing the evidence [after having rejected the evidence of the accused] was still left with a reasonable doubt is a question of fact, 46 and the failure of the trial judge to infer guilt, even in the face of compelling evidence, is a question of fact, no matter how wrong that failure is regarded by the appellate court R v RGB at para R v Powell, 2010 ONCA 105, at para R v Kent, [1994] 3 SCR R v Picot, 2011 NBCA 70, [2011] NBJ No 516 at para. 22 (per Richard J.A., dissenting), appeal allowed and decision rev d substantially for the reasons of Richard J.A., R v Picot, 2012 SCC R v Poirier (1997), 147 Nfld & PEIR 195, 1997 CanLII 4560 (PEISCAD) at para. 8 (per Mitchell J.A., for the majority), appeal dismissed at R v Poirier, [1998] 1 SCR 24.

13 11 [32] Furthermore, as noted in JMH, 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. 48 In his dissenting reasons in the court below, Slatter J.A. held that for an appeal of an acquittal based on a reasonable doubt, the presumptive standard of review is not correctness, or even reasonableness; acquittals based on a reasonable doubt are highly resistant to appellate review. 49 [33] Therefore, it is extremely important to determine the nature of the error alleged by the Crown. In this case, the Appellant submits that Slatter J.A. is correct in his dissenting reasons when he states: This appeal is not, however, in substance about an error of law, or about an error of fact, or about a finding of credibility. It is a challenge to the conclusion of the trial judge that he was left with a reasonable doubt at the end of the case. 50 It therefore follows that this being an acquittal based on a reasonable doubt, the standard of review is not correctness, or reasonableness, it is instead a decision that is highly resistant to appellate review. [34] In this case, the Trial Judge reviewed the evidence of the two witnesses, the Complainant and the Appellant. His decision came down to a determination of whether the Crown had proven the case beyond a reasonable doubt, and he found that, on the evidence he did accept, he was not convinced of the Appellant s guilt and found the Crown had not proven its case beyond a reasonable doubt. 51 The Trial Judge did not find as a fact that the Complainant was not avoiding the Appellant, instead, he clearly articulated that there was no evidence on the matter, leaving him with a reasonable doubt. 52 [35] The acquittal was solely based on the absence of evidence. He stated: Having said all that, however, given the length of time that these events occurred over, and the fact that the most serious event occurred months before [the Complainant] complained, I would have expected some 48 JMH at para ABCA at para ABCA at para Trial Transcript at 61/ Trial Transcript at 61/2-11, ABCA at para. 86.

14 12 evidence of avoidance either conscious or unconscious. There was no such evidence. [36] This Court in R v Lifchus established that a reasonable doubt can arise not only from the evidence, but from the absence of evidence: 36 Perhaps a brief summary of what the definition should and should not contain may be helpful. It should be explained that: the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit [Emphasis added]. 53 [37] Here, the Trial Judge s finding of reasonable doubt was based on the absence of evidence of after-the-fact avoidant behaviour by the Complainant, and the Crown cannot appeal a trier of fact s conclusion that a reasonable doubt exists, as that is a not a question of law. 54 (b) Not every concern about how a trial judge evaluates after-the-fact behaviour of a complainant raises a question of law. [38] If this Court does not agree that the Trial Judge s finding was a conclusion on reasonable doubt based on an absence of evidence, and instead that the acquittal was based on a finding on the Complainant s credibility, the Court must then consider how appellate courts should distinguish between impermissible errors of law (which are subject to a Crown appeal against 53 R v Lifchus, [1997] 3 SCR 320, at para RGB at para. 59.

15 13 acquittal) and permissible factual findings on credibility (which do not open the door to a Crown appeal). That is one of the central issues raised by this case, but there is little appellate authority addressing this question. [39] The majority of the Court of Appeal held that the finding that there was no evidence that the complainant avoided the respondent or changed her behaviour after the alleged incidents of sexual touching, was deemed inconsistent with her evidence of having been abused, thus negatively affecting her credibility and raising a reasonable doubt. 55 The majority went on to hold that if the reasoning about the complainant s credibility was based on an impermissible myth or stereotype, the Crown will have met its burden of establishing an error of law warranting appellate intervention. 56 [40] As a basis for finding that the Trial Judge s reliance on a lack of avoidant behaviour translated into an error of law, the majority held to say that a particular child s behaviour is incongruous with the stereotypical child victim, and to assess that child s credibility negatively because of that finding, is a mis-direction and is wrong in law. 57 In the majority s view, this error was based on the Trial Judge having drawn a comparison between the expected post-sexual assault behaviour by a complainant (avoiding the perpetrator), and the lack of evidence of avoidant behaviour in this particular case. The majority found that it was this comparison that resulted in a reliance on a stereotype of how a complainant would be expected to behave in the aftermath of a sexual assault. [41] Merely characterizing a trial judge s findings as stereotypical, however, cannot open the door to a broad review of the judge s verdict for reasonableness. Not every arguably unreasonable inference arising from the after-the-fact behaviour of a complainant in a sexual assault case can be safely labelled a myth or stereotype and thereby reviewed on appeal as a question of law. The basis for the appeal to the Court below was that the Trial Judge used the wrong legal test in his assessment of the complainant s credibility, 58 yet there is no legal test for assessing credibility, 55 ABCA at para ABCA at para ABCA at para ABCA at para. 93.

16 14 and there is no appeal from an acquittal on the basis of an unreasonable inference about credibility. Just as Freedman C.J.M. noted how it is not difficult for an experienced Crown prosecutor to frame a ground of appeal as a question of law, it is not difficult for an experienced Crown prosecutor to impugn a trial judge s credibility findings as applying the wrong standard for evaluating evidence. [42] There is a risk that, in an attempt to correct what it believes are unreasonable inferences, an appellate court may define credibility findings in terms of errors in principle and thereby create a form of de facto unreasonable acquittal appeal. Yet an appellate court s error-correcting role is limited by the terms of the Criminal Code, as courts have frequently noted, and striking the right balance in this context is difficult. The most detailed treatment of the issue of when reliance on a myth or stereotype will constitute an error of law is found in the Manitoba Court of Appeal decision of RGB. There, after a review of the authorities, the Court of Appeal summarized its view of the law as follows: To sum up, because credibility findings are questions of fact, the Crown generally has no right to appeal from an acquittal on a ground that alleges an error with respect to such a finding. Similarly, the Crown cannot appeal a judge s conclusion that there exists a reasonable doubt, as that does not raise a question of law. Nevertheless, the credibility of a witness should be judged on the evidence before the judge, not on stereotypical assumptions. A judge would err in law if there is a sound basis to conclude, on appellate review, that a credibility finding was not based on a proper evidentiary foundation, but rather on inappropriate judicial stereotyping. 59 [43] Of note, even some trial decisions that raise concerns about questionable judicial reasoning on the basis of after-the-fact behaviour have passed without comment. In JMH, the trial judge had rhetorically asked why did [the complainant] insist in going back to the same bed that she had been violated in?. He also described the words bittersweet and regret (found in a poem written by the complainant) as hardly the words that describe a rape. 60 Even though this was a case where the Crown had impugned the trial judge s assessment of the evidence, this arguable stereotyping went without comment. 59 RGB at para JMH at paras

17 15 [44] There are examples of cases from this Court, and other appellate decisions, where the reasoning based on a presumption that a victim will act a certain way is impugned, without making it an error of law to draw credibility inferences based the particular facts of the case. For example, in R v DD, a majority of the Court held that the [a]pplication of the mistake reflected in the early common law now constitutes reversible error. 61 Yet the mistake reflected in the early common law was applying a strong presumption that an honest complainant would raise a prompt hue and cry. The legal error was the evidentiary presumption, not any consideration of delayed reporting. Major J. favourably cited R v TEM, where the Alberta Court of Appeal held that timing of disclosure could still ground an adverse inference against the complainant s credibility, so long as the trier of fact is warned about how different victims may react in different ways. 62 [45] In R v LS, in the context of an application under s. 276 of the Criminal Code, the Ontario Court of Appeal recently considered whether evidence that the parties had continued a relationship after an alleged sexual assault was admissible. The Court held that evidence of their continued relationship was admissible and could be considered by the trier of fact, but was not determinative: [87] On the evidence heard by the jury, the appellant and E.K. had a spousal relationship that began sometime before the alleged sexual assault and carried on long after the alleged sexual assault. In her evidence, E.K. acknowledged that after the sexual assault, she and the appellant carried on as if nothing had happened. It was the defence position that in fact nothing had happened. [88] I think that evidence that the relationship between E.K. and the appellant, including the sexual component of the relationship, carried on as it had before the alleged assault was relevant to whether the assault occurred. The defence could argue that evidence that the sexual component of the relationship carried on as before, supported the defence position that the parties carried on as if nothing had happened because nothing had in fact happened. [1] [89] I do not suggest that evidence that E.K. and the appellant continued a relationship that included consensual sexual intercourse after the alleged assault demonstrated that the assault did not occur. Different people will react differently to the same event. However, to acknowledge that evidence that the relationship continued as before was far from determinative of 61 R v DD, 2000 SCC 43 at para R v TEM, 1996 ABCA 312 at para. 11.

18 16 whether the assault occurred, is not the same as holding that the evidence is irrelevant. Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative: see R. v. A. (No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.). This evidence was relevant. 63 [46] The Court held that the information about the continuing relationship was probative, but not determinative and could properly be considered by the trier of fact, so long as it was accompanied by a warning about the impropriety of stereotypical reasoning. 64 [47] These authorities suggest that not every issue surrounding after-the-fact behaviour by the complainant will involve a question of law. [48] Similarly, Binnie J. s comment in R v Shearing that sexual assault cases should be decided without resort to folk tales about how abuse victims are expected to react to the trauma was not meant to establish a strict rule of law that prohibited triers of fact from ever considering after-the-fact behaviour of complainants and considering whether this behaviour was consistent with their ordinary experience and common sense. 65 In that case, defence counsel had sought to cross-examine the complainant about the absence of any mention of the alleged sexual abuse in the complainant s diary. The trial judge prohibited such cross-examination. As Binnie J. explained, cross-examination should have been permitted because this issue may have had relevance, not because it relied on rape myths, but because within the specific context of a case, after-the-fact behaviour may be relevant: The defence was rightly precluded from assuming [sexual abuse would have been recorded, if it had occurred], but it did not follow that the defence should also be precluded from attempting to demonstrate it with this particular diary on the particular facts of a case [Emphasis in original]. 66 Again, the law emphasizes the importance of warning triers about 63 R v LS, 2017 ONCA 685, at paras LS at paras R v Shearing, 2002 SCC 58, at para Shearing at para. 146.

19 17 stereotypical reasoning, without foreclosing all reasoning about after-the-fact behaviour on the particular facts of the case. [49] Not all cases that discuss rape myths or inappropriate stereotypes help define when reliance on after-the-fact behaviour amounts to an error of law. As the Manitoba Court of Appeal noted in RGB, cases such as Seaboyer and Osolin did not focus on the interplay between stereotypical assumptions and credibility findings and when deference is owed on appellate review. 67 [50] The majority of the Court of Appeal cited R v Caesar, 68 but that decision simply highlights how credibility determinations based on a complainant s behaviour are questions of fact, reserved for the trier of fact. In that case, the accused in a historic sex assault argued that the complainant s continued association with him was implausible had the complainant been assaulted. In argument, the trial Crown made some comments to the effect of Why did the altar boy go back to the church after the priest assaulted him? There s no set standard as to what people are supposed to do. On appeal, the accused argued the comments were inappropriate and inflammatory. Yet the Crown apparently did not respond to the appeal by arguing that the error was harmless because defence counsel should not have been permitted to make the argument on the basis of after-the-fact conduct by the complainant at all. Instead, the Court of Appeal dismissed the appeal on the basis that the comments were fair, and on the basis that members of the public today had a better understanding of the various ways sexual assaults may be committed. Thus, Caesar stands for the proposition that these arguments raise questions of fact that are reserved for the trier of fact s consideration. [51] As noted in the above examples, it is not an error for a trier of fact to rely on the actual conduct of the actual complainant in the actual context before the Court, and determine that inferences arise from it: R.G.B. at paras because evidence or the absence of evidence found in the record before the trial judge can properly form the basis of a reasonable doubt leading to an acquittal [Emphasis in original] RGB at para ABCA at para. 57, citing R v Caesar, 2015 NWTCA 4, at paras ABCA at para. 95.

20 18 [52] Courts have widely held that in sexual assault cases, after-the-fact behaviour and behavioural changes are relevant and can be properly considered by the trier of fact. In R v RAN, the Alberta Court of Appeal confirmed that post-offence behaviour can be considered by the trier of fact: 20 Trial judges now often rely on their common sense and experience without expert opinion, to understand why a complainant may act in a certain way. In the context of sexual offences, despite the lack of assistance of an expert, it has been held that evidence of declining academic performance, rebelliousness and running away could be relied upon to confirm allegations of sexual assaults: R v. V.(G.R.) (1996), 76 B.C.A.C. 72 (C.A.); leave to appeal refused (1996), 136 W.A.C. 238 (S.C.C.). In R. v. Munroe (1994), 1994 CanLII 1619 (BC CA), 51 B.C.A.C. 174 (C.A.) it was held that evidence of nightmares and emotional changes strengthened the belief in the complainant s allegations of sexual assaults. So too did withdrawal and unresponsiveness in R. v. Falkenberg (1995), 1995 ABCA 27 (CanLII), 95 C.C.C. (3d) 307 (Alta. C.A.). 70 [53] If actual behavioural changes in the complainant can be relevant and probative evidence of a sexual assault having taken place, the absence of such behavioural changes are also relevant and probative. 71 In this vein, evidence that a complainant avoids his or her abuser would be relevant and probative, and so too would evidence that the complainant did not. In either case, there is no presumption that this after-the-fact behaviour is conclusive of a sexual assault having taken place. This Court and many others have held that the reactions of sexual assault victims can vary widely, 72 however, the evidence or absence of evidence about the complainant s after-the-fact behaviour is nonetheless probative and can properly be considered by a trier of fact without amounting to an error in law. [54] In TEM, the Alberta Court of Appeal noted that the law does not go so far as to say that a jury could never draw an adverse inference based on an absence of recent complaint, but that there must be a general warning to the trier of fact not to rely on stereotypical thinking in considering that evidence: 70 R v RAN, 2001 ABCA 68, at para. 20. See also R v Bedard, 2003 SCC 56, R v RO, 2015 ONCA 814 at paras , and R v Ghomeshi, 2016 ONCJ 155 at paras ABCA at para DD at para. 65

21 19 11 But, while I agree that the issue must be left to the jury, I am of the view that there must be a general warning to attempt to insure that the jury does not fall into error in the exercise of the freedom of choice the law permits. I would say to a jury that, as they no doubt have observed in their own life experience, there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will want to raise a hue and a cry, some will want to crawl into a hole and die. Reactions vary. It surely would not surprise the jury to hear, for example, that some children who are sexually abused by a parent are so humiliated that they do not want to tell anybody, but want instead to take the secret to their graves. This jury must decide whether, on the basis of their experience in life, this complainant acted after the alleged incident in a way that is consistent with her story. To assess that, the jury must consider the state of mind of the witness at the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her alleged abuser. It may well be that the jury can draw no conclusions of consequence about her subsequent behaviour, and will decide that it is not a telling point one way or the other on the truth of her story. 73 [55] So long as the trier of fact does not rely on stereotypical reasoning, inferences of fact and credibility drawn from the actual record can legitimately be made, and post-event behaviour is relevant. 74 As Slatter J.A. confirmed in his dissenting reasons in the court below, it is clear that because of the risk that reasoning may be based on myths and stereotypes, the trier of fact must be instructed that it can rely on logic, common sense and life experiences so long as the reasoning is not based on certain types of prohibited reasoning that underline the forbidden stereotypes. 75 (c) Although this is not a case involving recent complaint reasoning, cases on this issue help highlight how the ultimate assessment of a complainant s evidence remains a question of fact, reserved for the trier of fact. [56] The doctrine of recent complaint was a common law rule of evidence that established a strong, but not conclusive 76 presumption, rooted in specious Victorian-era stereotypes, that a complainant had fabricated an allegation of sexual assault where she failed to raise an immediate hue and cry. The doctrine strongly invited the trier of fact to draw a presumptive adverse inference against the complainant s credibility on the basis that there was no prompt disclosure of 73 TEM at para ABCA at para ABCA at para See e.g. R v Timm, 1980 ABCA 59 at para. 48, and DD at para. 60.

22 20 the allegations. The rule was weakened somewhat at common law, 77 before finally being abolished legislatively. 78 [57] However, the abolition of this presumptive inference did not make evidence about the absence of recent complaint either inadmissible or irrelevant in every case. After the abolition of the common law rule, there is no strong, presumptive inference drawn as a result of a failure to disclose abuse promptly after it is alleged to have occurred. But the converse is not also true, as the Alberta Court of Appeal acknowledged in TEM: the law does not go so far as to say to the jury that they can never draw an adverse inference based on an absence of recent complaint [Emphasis in original]. 79 [58] As the Ontario Court of Appeal explained, an allegation of recent complaint goes directly to the credibility of the complainant and thus the decision to draw such an inference is a matter properly within the discretionary province of the trier of fact [Emphasis added]. 80 The accused may properly raise the timing of the complaint as an issue relevant to credibility because in the particular circumstances of the case, such timing may be relevant. 81 The abrogation of the doctrine of recent complaint did not establish an exclusionary rule that prohibits the accused from ever adducing any evidence about when the complaint was first made. Nor did it establish a rule of reasoning that prohibits the issue of recent complaint from ever being considered by the trier of fact in any circumstances. [59] Instead, as Major J. explained for a majority of the Supreme Court in DD, delayed disclosure standing alone cannot give rise to an adverse inference against a complainant s credibility. Where such concerns are not standing alone that is, when delayed disclosure is assessed in light of all the facts of the case, and where the trier of fact reasons from the basis that there is no inviolable rule how people who are victims of trauma like a sexual assault will 77 See Timm, ibid., aff d at R v Timm, [1981] 2 SCR See Criminal Code, RSC 1985, C-46, s. 275: The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 153.1, 155 and 159, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and TEM at para R v O Connor (1995), 25 OR (3d) 19, [1995] OJ No 2131 (CA), at para R v Henrich (1996), 29 OR (3d) 740, [1996] OJ No 2537 (CA) at paras

23 21 behave 82 a delay in disclosure may have some relevance to a complainant s credibility. See for example the Newfoundland Court of Appeal s comments in HT, 83 or the British Columbia Court of Appeal s comments in Williams. 84 Or consider, by analogy, Handy, where Binnie J. properly relied upon the delayed disclosure of abuse, in combination with the likelihood of a financial motive. 85 [60] While this is not a recent complaint case, the case law on recent complaint remains instructive because it highlights how the ultimate assessment of the presence (or absence) of delayed disclosure remains a question of fact that may be properly considered by the trier of fact, so long as it does rely on the erroneous assumption that any honest complainant would raise a prompt hue and cry, and so long as it is assessed in light of all the evidence. The abolition of strong evidentiary presumptions about the behaviour of complainants in sexual assault cases did not foreclose triers of fact from relying at all upon concerns about the timing of disclosure in order to be left with a reasonable doubt. While late disclosure standing alone cannot give rise to an adverse inference, it is one factor that can be considered in the overall factual matrix of the case. Whether an adverse inference is, in fact, drawn by the trier of fact is a question of fact. 86 Therefore, it would not be open to the Crown to appeal such a credibility finding. [61] As a result, no Crown appeal lies from an acquittal where the trier of fact disbelieves a complainant because of after-the-fact behaviour, so long as the trier of fact approaches the evidence with the understanding that there is no universal correct way for victims of sexual assault to behave, and so long as the trier of fact considers the after-the-fact behaviour within the context of all the evidence. 87 The legal principles underlying recent complaint suggest that, after a proper self-instruction, the impact of a complainant s after-the-fact behaviour on a trial judge s decision will usually involve a question of fact, not a question of law. 82 DD at para R v HT, 2009 NLCA 69, at para R v Williams, 2004 BCCA 207, at para R v Handy, 2002 SCC 56, at para See Kent, supra. 87 ABCA at para. 97.