R. c. A.R.J.D., 2018 CSC 6, 

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]           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—nothing.

[40]           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 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’s credibility—that her behaviour was not “consistent with [the] abuse” alleged.

[41]           First, there is a troubling circularity about the sought for avoidant behaviour, in that “avoidance” 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.

[42]           Second, it has long been recognized that there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R v D(D) at para 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse” [emphasis in original]: R v D(D) at para 63.

[43]           The most serious problem with the trial judge’s comparison-based assessment of the complainant’s 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’s reliance on his own “logic and common-sense” 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 “logic” 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 anyparticular manner.

[44]           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.

[45]           Moreover, although it is trite that reasonable doubt leading to an acquittal can rest on an “absence of evidence”, the absence of evidence found here—no evidence of avoidance or change in behaviour—appears to be based solely on the trial judge’s impermissible reliance on his own unmet expectation, rather than on a clearly articulated and full assessment of the complainant’s 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, 2012 MBCA 5 (CanLII) at para 59, 287 CCC (3d) 463:

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. [Emphasis added]

[46]           We agree that an evaluation of the “actual evidence” 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’s credibility is instead assessed solely in comparison to what the trial judge concludes would be “expected” 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.

[47]           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. 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.

[48]           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.

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

[69]           In summary, the trial judge’s acquittals were directly 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. As stated, it was the trial judge’s 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.

[70]           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: that a vast proportion of child sexual abuse victims are asymptomatic in the post-victimization period both before and after disclosure.

[71]           An accused’s constitutionally-protected right 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 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 “common sense or logic” are reliably just that, and are not, in fact, unfair and inaccurate external viewpoints that find no foundation in the record.