{"id":13347,"date":"2021-03-05T12:54:25","date_gmt":"2021-03-05T17:54:25","guid":{"rendered":"https:\/\/www.nrlawyers.com\/chinese\/?p=13347"},"modified":"2021-03-05T12:54:25","modified_gmt":"2021-03-05T17:54:25","slug":"the-role-of-common-sense-in-sexual-assault-trials","status":"publish","type":"post","link":"https:\/\/www.nrlawyers.com\/chinese\/the-role-of-common-sense-in-sexual-assault-trials\/","title":{"rendered":"The Role of \u201cCommon Sense\u201d in Sexual Assault Trials"},"content":{"rendered":"

Joseph A. Neuberger, Neuberger & Partners LLP<\/strong><\/p>\n

Criminal Lawyers Toronto<\/strong><\/p>\n

 <\/p>\n

In a March 3, 2021 Ontario Court of Appeal decision, Justice Paciocco addressed the growing complexity in defining what comprises a stereotype in sexual assault trials. R. v. J.C.<\/em>, 2021 ONCA 131 offered a number of opportunities to examine how the accused are being blocked from adducing properly relevant evidence.<\/p>\n

The first issue of stereotypes arose in relation to the suggested motive that the defence put into play during trial. The Crown position was that it was a stereotype that \u201cwomen with boyfriends\u201d are prone to lying about sexual assault. The defence suggestion, however, had an evidentiary basis which showed this particular boyfriend was instrumental in how the allegation was disclosed and acted upon.<\/p>\n

Justice Paciocco outlined how to differentiate \u201cuntethered generalizations about human behaviour\u201d from evidence that is a factual conclusion that is based on the evidence at trial. Additionally, the decision addresses the use and misuse of \u201ccommon sense\u201d with examples of how inferences can properly be drawn from the factual matrix of the evidence.<\/p>\n

Justice Paciocco breaks down the issue into two categories: \u201cThe Rule Against Ungrounded Common-Sense Assumptions\u201d and \u201cThe Rule Against Stereotypical Inferences.\u201d He then examines each of these errors in more detail.<\/p>\n

The approach takes into consideration that \u201cit is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility.\u201d He cites a number of recent cases which have highlighted how these generalizations are sometimes misapplied to the accused as well.<\/p>\n

He notes a \u201ccritical point in understanding the rule against stereotypical inferences is that this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence.\u201d<\/p>\n

This differentiation is often central to pre-trial applications which focus on determining admissibility of evidence and areas of cross-examination prior to trial. The onus is on the defence to show in advance that they will not be engaging in stereotypes or \u201ctwin myth\u201d reasoning.<\/p>\n

Another area of concern in this case was the improper consideration of why an untruthful complainant would submit herself to cross-examination. Justice Paciocco wrote:<\/p>\n

\u201cThe primary concern with using a complainant\u2019s readiness to advance a criminal prosecution is that doing so cannot be reconciled with the presumption of innocence. The trial is to begin on the rebuttable premise that the accused is not guilty, not on the basis that the mere making of a criminal sexual assault allegation favours a finding of guilt.\u201d<\/p>\n

The final consideration, aside from rejecting the curative proviso, was the trial judge\u2019s rejection of the accused\u2019s testimony that he obtained consent for each and every sexual act on the grounds that it was \u201cnot in accord with common sense and experience about how sexual encounters unfold.\u201d<\/p>\n

Justice Paciocco pointed out that a presupposition \u201cthat no-one would be this careful about consent\u201d undermines the law of consent. He summarizes this conundrum saying, \u201cSimply put, the behaviour the trial judge rejected as too perfect to be true is to be encouraged, not disbelieved ab initio<\/em>.\u201d<\/p>\n

Most certainly, it would be a problem in our legal system if men were required to engage in sexual behaviour which, if followed, would render their testimony to be unbelievable and contrived.<\/p>\n

To get the latest news on sexual assault law decisions, subscribe to our monthly newsletter<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Joseph A. Neuberger, Neuberger & Partners LLP Criminal Lawyers Toronto   In a March 3, 2021 Ontario Court of Appeal decision, Justice Paciocco addressed the growing complexity in defining what comprises a stereotype in sexual assault trials. R. v. J.C., 2021 ONCA 131 offered a number of opportunities to examine how the accused are being […]<\/p>\n","protected":false},"author":1,"featured_media":13348,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-13347","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-sexual-assault"],"_links":{"self":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts\/13347","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/comments?post=13347"}],"version-history":[{"count":0,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts\/13347\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/media\/13348"}],"wp:attachment":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/media?parent=13347"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/categories?post=13347"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/tags?post=13347"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}