R v Kruk: Bringing Sense Back to Common-Sense Assumptions

In R v Kruk, 2024 SCC 7 [Kruk], the Supreme Court of Canada (“SCC”) rejected the “rule against common-sense assumptions,” affirming the importance and necessity of trial judges’ common-sense reasoning to their credibility assessments. This decision is significant for two reasons: (1) it sets out the narrow role that myths and stereotypes as legal errors are to have in the criminal law, and (2) it reasserts the high standard for appellate intervention on a trial judge’s credibility assessments.

Facts

This appeal arose out of two unrelated charges of sexual assault on two separate accused — Mr. Kruk and Mr. Tsang. Both Mr. Kruk and Mr. Tsang were accused of penetrative sexual assaults on complainants who were strangers to them prior to their respective assaults. For Mr. Kruk, the central issue at trial was whether the sexual activity actually occurred, and his conviction turned on the credibility of his own testimony and that of the complainant (Kruk, para 5). For Mr. Tsang, the issue at trial was whether the complainant had consented to certain aspects of their sexual activity. While both parties admitted the sexual activity occurred, their testimony diverged as to the specific sexual acts performed and, most crucially, the issue of ongoing and active consent (Kruk, para 13).

Judicial History

Both Mr. Kruk and Mr. Tsang were found guilty at trial. In rejecting the evidence of both accused, the respective trial judges relied on common-sense suppositions about human behaviour and experience. These inferences led the respective trial judges to reject Mr. Kruk and Mr. Tsang’s versions of events, as their testimony was incongruous with observations about typical human conduct. For example, in accepting the complainant’s evidence in Mr. Kruk’s case, the trial judge held that while there were many gaps in her evidence, her testimony with respect to the core of the sexual assault allegation was credible. In making this finding, the trial judge observed that it would be extremely unlikely that a woman would be mistaken about the feeling of penile-vaginal penetration despite her intoxication (Kruk, para 7). The complainant’s testimony was also supported by key circumstantial evidence. In Mr. Tsang’s case, the trial judge rejected his evidence based on three key assumptions that were at odds with Mr. Tsang’s testimony: (1) a person would not ask to be spanked while engaging in sexual activity “out of the blue,” (2) a controlling person would not refrain from engaging in intercourse merely because they could not find a condom, and (3) a person would not abruptly drive away from someone with whom they had engaged in consensual sex (Kruk, para 15).

For a more detailed statement of the specific facts at issue in both Kruk and Tsang and an analysis of the decisions below, see the previous Appeal Watch articles by Joey Jang and Jennifer Laws: Kruk and Tsang.

British Columbia Court of Appeal 

The British Columbia Court of Appeal (“BCCA”) unanimously overturned both Mr. Kruk (2022 BCCA 13) and Mr. Tsang’s (2022 BCCA 35) convictions. The BCCA in Mr. Kruk’s case relied on R v Roth, 2020 BCCA 240 [Roth], to emphasize that while trial judges can rely on personal life experience to conduct their credibility assessments, they must be careful to avoid speculative reasoning that invokes common-sense assumptions not grounded in the evidence (Kruk, para 9). In the absence of proper evidence on neurology, physiology, and psychiatry, therefore, the trial judge had erroneously concluded that a complainant would not likely be mistaken about the sensation of penile-vaginal penetration (Kruk, para 9).

For Mr. Tsang, the BCCA took issue with all three of the assumptions made by the trial judge. They again relied on the rule against common-sense assumptions, which, to the tune of Roth, prohibits generalizations that are not grounded in the evidentiary record (Kruk, para 15). Such instances of “speculative reasoning” constitute reversible legal errors. Since the errors were material in both cases, they warranted a new trial.

Decision

The SCC unanimously allowed the appeals and rejected the proposed “rule against common-sense assumptions” that had been accepted by the BCCA in both cases. While Rowe J diverged as to the specific analysis to be undertaken in determining whether a trial judge’s use of common-sense constitutes reversible error, all members of the Court agreed that generalized expectations about human behaviour (within reasonable limits) are a necessary component of the judicial fact-finding process.

The majority offered two primary reasons for rejecting the rule against common-sense assumptions: First, in extending the role of myths and stereotypes to include assumptions about accused persons, the rule distorts the distinct body of law applicable to sexual assault complainants, which has a definite remedial purpose (Kruk, para 30). Second, the rule allows appellate courts to assume a highly invasive role, disrupting the unique position of a trial judge in conducting credibility assessments (Kruk, para 70). 

The Role of Prohibitions Against Myths and Stereotypes

The rule against common-sense assumptions turns all forms of generalizations in a criminal trial — including those made about the accused or third-party witnesses — into reversible legal errors. In writing for the six-member majority, Martin J spent considerable effort laying out the specific harms of generalizations against complainants in sexual assault trials and why, in light of their role, a rule against all generalizations in criminal trials should not be adopted. 

The law’s prohibition against myths and stereotypes about sexual assault complainants has a narrow purpose: to remedy historical attitudes in the legal system that contributed to the view that women were less worthy of belief in the context of a sexual assault (Kruk, para 31). The term “myths and stereotypes” in the legal sense was coined specifically to describe how the heightened procedural protections historically afforded to those accused of sexual assault “discriminated against complainants and made sexual assault not only the most underreported crime, but one that was exceptionally difficult to prove in court.” (Kruk, para 32) Myths and stereotypes convey archaic worldviews about what constitutes “real” sexual violence and what does not, and serve to demean and diminish the status of women complainants in court (Kruk, para 37). Legislative changes such as the introduction of s 276 of the Criminal Code, RSC 1985, c C-46 were made specifically to combat the prevalence of sexual assault, encourage reporting, and protect the privacy interests and dignity of complainants (Kruk, para 40).

Thus, while it is true that reliance on myths and stereotypes to discredit sexual assault complainants amounts to a reversible error of law, the history, purpose, and character accompanying that error cannot be transposed onto just any generalization (Kruk, para 45). A rule that prohibits all generalizations disregards the distinctly discriminatory character of myths and stereotypes — “it instead lumps together the sort of pernicious, discriminatory stereotypes that both the courts and Parliament have worked to condemn and correct with more benign generalizations that, while they may be factually wrong, have nothing to do with inequality of treatment.” (Kruk, para 51) Defining generalizations that amount to errors of law must be done precisely, and courts should not equate harmful and discriminatory stereotyping with all assumptions about human behaviour (Kruk, para 57).

The Bar for Appellate Intervention on Credibility Remains High

The SCC’s second key reason for rejecting the proposed rule against common-sense assumptions was that it erodes the high standard for appellate intervention on a trial judge’s credibility assessment. 

The common-sense knowledge and inductive reasoning skills of a trial judge are indispensable to judgments of credibility. Credibility assessments are largely based on the specific circumstances of the case, and they require trial judges to fall back on their life experiences and acquired knowledge of human behaviour to properly weigh the evidence (Kruk, para 73). In this regard, common-sense assumptions are a necessary component of all credibility assessments — without using generalizations about human behaviour, how else would trial judges be able to identify an improbable narrative or ascertain whether a witness appeared to have an unclear or uncertain memory? Further, unlike appellate courts, trial judges have the benefit of seeing and hearing the witnesses before them (Kruk, para 75). Allowing appellate courts to descend from on high and parse a trial judge’s minute observations about a witness’s behaviour would detract from the deferential approach we afford to credibility assessments, which exists precisely because of the unique positioning of trial courts (Kruk, para 83). As Martin J points out, this creates a chilling effect that deters trial judges from giving thorough and frank reasons for fear of being overturned on appeal (Kruk, para 88).

In the end, the SCC reaffirmed that the standard of review for credibility assessments remains unchanged. Like all other aspects of credibility assessments, common-sense assumptions are reviewable only for palpable and overriding error (unless the assumption alleged is a recognized error of law, like a myth or a stereotype about a sexual assault complainant) (Kruk, para 97). An appellant challenging a common-sense assumption must demonstrate (1) a specific assumption that was made, (2) that the assumption is beyond the bounds of what common-sense and the judicial function support, (3) that the erroneous reliance on the assumption is palpable, in that it is plainly seen or identified, and (4) that the erroneous reliance was overriding, in that it affected the result or went to the core of the outcome of the case (Kruk, paras 94-99). Applying this standard, the SCC found that the trial judge had not made an assumption at all in Mr. Kruk’s case, but rather stated a response to a defense submission, whereas in Mr. Tsang’s case, while the trial judge made one erroneous assumption, it was not material to the outcome of the case (Kruk, para 124).

While Rowe J concurred in the result and on the roles of myths and stereotypes, his analytical approach was slightly altered. In his view, it is only an error of law to rely on unreasonable generalized expectations, i.e., those that depart from objectivity and community consensus and are relied on in themselves as conclusive and indisputable facts (Kruk, para 215). An appellate court reviewing for  legal error should be guided by three questions: (1) did the trial judge rely on a generalized expectation in their reasoning? (2) if yes, was the expectation reasonable? (3) was the generalized expectation relied upon as itself a conclusive and indisputable fact? (Kruk, para 163)

Analysis: Bringing Sense Back to Common-Sense Assumptions

The majority decision has brought back a sensible, efficient, and appropriately deferential approach to credibility assessments. In an era where judicial economy and trial delay are of utmost importance in the criminal law, forcing trial judges and counsel to source every benign generalization about human behaviour in the evidence risks dragging trials on for far too long. Further, the rule against common-sense assumptions harkens back to an anachronistic time where the testimony of sexual assault complainants was recieved with heightened suspicion. Trial judges should be allowed to receive, believe, and accept a complainant’s (or any witness’s, including the accused’s) evidence based on their knowledge of human behaviour without fear of an appellate court dissecting their reasons in a line-by-line hunt for error. 

The decision to leave the standard of review on common-sense assumptions unchanged from that of other aspects of credibility assessments also maintains certainty and reduces confusion in the criminal law. By parsing out assumptions from other aspects of credibility assessments and affording them their own standard of review, Rowe J’s proposed approach risks misidentification of what actually constitutes an assumption and detracts from the SCC’s established approach whereby trial judges’ reasons are read as a whole, with a view to substance over form.

Ultimately, after the courts below sought to stray off the deferential path, the SCC in Kruk has brought sense back to a trial judge’s use of common-sense reasoning. Kruk is a definitive pronouncement that the law should not lose sight of the distinct and unparalleled role of myths and stereotypes, nor should appellate courts become hawk-eyed in their assessment of a trial judge’s crucial evidence-weighing function.

This article was edited by Jeremy Vyn.