{"id":8792,"date":"2018-02-15T21:22:27","date_gmt":"2018-02-16T02:22:27","guid":{"rendered":"https:\/\/www.doyonavocats.ca\/?p=8792"},"modified":"2019-07-28T22:00:26","modified_gmt":"2019-07-29T02:00:26","slug":"lack-avoidant-behaviour","status":"publish","type":"post","link":"https:\/\/www.doyonavocats.ca\/en\/lack-avoidant-behaviour\/","title":{"rendered":"What can lack of avoidant behaviour tell a trier of fact in a sexual assault case? : R. c. A.R.J.D., 2018 CSC 6,\u00a0"},"content":{"rendered":"

R. c. A.R.J.D., 2018 CSC 6,\u00a0<\/a><\/p>\n

R. v A.R.D., 2017 ABCA 237<\/a><\/p>\n

There is no juridical foundation upon which a trial judge could correctly conclude that, as a matter of sound legal principle, child sexual assault survivors will<\/i> demonstrate avoidant behaviour in relation to their sexual assault perpetrators<\/h2>\n

[<\/a>39]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The more important question is what, if anything, can evidence of a lack of avoidant behaviour by a complainant tell a trier of fact about a sexual assault allegation? The answer is simple\u2014nothing<\/strong>.<\/p>\n

[<\/a>40]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 There was no explanation provided by the trial judge for the relevance of his conclusion that there was no evidence of avoidant behaviour by the complainant, other than in the context of an expectation<\/i> that post-assault a victim generally, or this particular complainant, would avoid the perpetrator. Where that expectation was deemed to be unmet, it led to a direct finding against the complainant\u2019s credibility\u2014that her behaviour was not \u201cconsistent<\/strong> with [the] abuse\u201d alleged.<\/p>\n

[<\/a>41]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 First, there is a troubling circularity<\/strong> about the sought for avoidant behaviour, in that \u201cavoidance\u201d defines an interactional aspect of this particular interpersonal relationship which could be equally attributable to both the respondent and the complainant, or to neither of them. Its presence or absence signifies nothing in particular in relation to the credibility of the complainant about the alleged sexual assaults.<\/p>\n

[<\/a>42]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Second, it has long been recognized that there is \u201cno inviolable rule on how people who are the victims of trauma like a sexual assault will behave\u201d: R v D(D) <\/i><\/b>at para 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour \u201cmust not<\/u> be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions<\/strong> of how persons (particularly children) react to acts of sexual abuse\u201d [emphasis in original]: R v D(D)<\/i> <\/b>at para 63.<\/p>\n

[<\/a>43]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The most serious problem with the trial judge\u2019s comparison-based assessment of the complainant\u2019s credibility stems from his impermissible reliance on a myth or stereotype (masquerading as logic and common sense) about how a sexual assault complainant, in general and in this case, is assumed or expected to behave post-sexual assault(s). Put plainly, the trial judge\u2019s reliance on his own<\/strong> \u201clogic and common-sense\u201d about how humans react following sexual assault, is itself highly questionable as to relevance and reliability. But it becomes particularly dangerous when reliance on that \u201clogic\u201d overshadows any resort to or assessment of the actual evidence at trial. The trial judge found reasonable doubt because this particular complainant did not exhibit expected predictive, avoidant behaviour. In our view, it is neither logical nor a matter of common sense to expect a child complainant to behave in any<\/i>particular manner.<\/p>\n

[<\/a>44]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Stereotypicality is never a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality must never translate to less credibility.<\/p>\n

[<\/a>45]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Moreover, although it is trite that reasonable doubt leading to an acquittal can rest on an \u201cabsence of evidence<\/strong>\u201d, the absence of evidence found here\u2014no evidence of avoidance or change in behaviour\u2014appears to be based solely on the trial judge\u2019s impermissible reliance on his own<\/i> unmet expectation, rather than on a clearly articulated and full assessment of the complainant\u2019s police statement or trial testimony. In the result, the trial judge misdirected himself by basing his credibility assessment of the complainant not on a proper evidentiary foundation, but on inappropriate judicial stereotyping, a point ably made by the Manitoba Court of Appeal in R v RGB<\/i><\/b>, 2012 MBCA 5<\/span> (CanLII)<\/a> at para 59, 287 CCC (3d) 463<\/span><\/span>:<\/p>\n

\n

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\u2019s 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<\/strong>.<\/u> [Emphasis added]<\/p>\n<\/blockquote>\n

[<\/a>46]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 We agree that an evaluation of the \u201cactual evidence\u201d in a given case is the proper means to assess whether the Crown has met its burden of proof beyond a reasonable doubt. Where however, that evidence and its relevance is not clearly identified by the trial judge, and the complainant\u2019s credibility is instead assessed solely in comparison to what the trial judge concludes would be \u201cexpected\u201d post-sexual assault behaviour by a complainant, in our view that evaluation is fully rooted in reliance on impermissible reasoning based on myths and stereotypes.<\/p>\n

[<\/a>47]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 There is no juridical foundation upon which a trial judge could correctly conclude that, as a matter of sound legal principle, child sexual assault survivors will<\/i> demonstrate avoidant behaviour<\/strong> in relation to their sexual assault perpetrators. Or, in particular, that this child in this situation, had she truly been repeatedly sexual victimized by her step-father, would exhibit avoidance of her perpetrator.<\/p>\n

[<\/a>48]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 In our view, the expressed judicial expectation is devoid of any of the certainty or invariability that are preconditions to legal reliability. In this case, the pernicious impact that prescriptive norms can have in the adjudication of sexual assault erroneously tainted the credibility assessment of the complainant.<\/p>\n

The Supreme Court of Canada, and this Court, have held that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning that is often, if not always, an error of law<\/h2>\n

[<\/a>69]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 In summary, the trial judge\u2019s acquittals were directly tied to a legal error of applying an impermissible stereotype or myth that avoidant behaviour was \u201cexpected\u201d, and concluding the absence of such behaviour negatively impacted the complainant\u2019s credibility. As stated, it was the trial judge\u2019s assessment that a victim would avoid her perpetrator or otherwise exhibit a change of behaviour; he thus engaged in a prohibited, stereotypical-based assessment of credibility that cannot stand.<\/p>\n

[<\/a>70]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The search for avoidant behaviour or a change of behaviour in a sexual assault complainant, particularly a child, is in its essence nothing more than a search for confirmatory evidence, without which a complainant becomes less worthy of belief. The problem with such a search is that there is no reliable support for the presumption that a sexual assault victim will invariably, more often than not, or even to a statistically meaningful degree, display any predictable behaviours following the abuse. Indeed, the converse may well be true<\/strong>: that a vast proportion of child sexual abuse victims are asymptomatic in the post-victimization period both before and after disclosure.<\/p>\n

[<\/a>71]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 An accused\u2019s constitutionally-protected right<\/strong> to make full answer and defence does not permit reliance on prejudicial generalizations about sexual assault victims. Reasonable doubt is not a shield against appellate review if that doubt is informed by inferences based on external, personal assumptions or expectations<\/strong> about how sexual assault victims behave either generally, or specifically. Appellate courts must carefully scrutinize reasons to ensure that findings said to be based on \u201ccommon sense or logic\u201d are reliably just that, and are not, in fact, unfair and inaccurate external viewpoints that find no foundation in the record.<\/p>\n","protected":false},"excerpt":{"rendered":"

R. c. A.R.J.D., 2018 CSC 6,\u00a0 R. v A.R.D., 2017 ABCA 237 There is no juridical foundation upon which a trial judge could correctly conclude that, as a matter of sound legal principle, child sexual assault survivors will demonstrate avoidant behaviour in relation to their sexual assault perpetrators [39]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The more important […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[2],"tags":[],"yst_prominent_words":[],"acf":[],"_links":{"self":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/8792"}],"collection":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/comments?post=8792"}],"version-history":[{"count":0,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/8792\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/media?parent=8792"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/categories?post=8792"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/tags?post=8792"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/yst_prominent_words?post=8792"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}