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the case
Hearing Tribunals are increasingly called to make credibility and reliability assessments of witness evidence in cases involving allegations of sexual abuse. While disciplinary hearings are not criminal in nature, Hearing Tribunals are often presented with criminal cases that provide guidance on how to assess witness evidence.
In a recent decision of the Supreme Court of Canada (R v Kruk 2024 SCC 7) involving sexual assault allegations, the SCC was asked to recognize a new rule against “ungrounded common-sense assumptions”. The SCC reviewed the current state of the law, including the rules against myths and stereotypes when assessing the evidence of victims of sexual assault. However, the SCC declined to change the law regarding how other common-sense assumptions made by triers of fact will be reviewed on appeal.
The SCC considered the current prohibitions on myths and stereotypes of victims of sexual assault and provided a detailed review of the history and policy reasons for the development of the rules (including rules against myths and stereotypes such as: genuine sexual assaults are perpetrated by strangers to the victim; false allegations of sexual assault based on ulterior motive are more common than false allegations of other types of offenses; real victims of sexual assault should have visible physical injuries; a complainant who says “no” did not necessarily mean “no”; if a complainant remained passive or failed to resist the accused, either physically or verbally, they must have consented; a sexually active individual is more likely to have consented to the sexual activity and is less worthy of belief; the ‘failure’ to dress modestly indicates that the complainant is more likely to have consented; the mere fact of a complainant having psychiatric or therapeutic consultations is relevant to their credibility or reliability; a complainant associating with or not avoiding the accused after the alleged sexual assault suggests that there was consent (at paragraphs 36 and 41)).
If a decision-maker engages in these types of myths and stereotypes, they will be engaging in legal errors that will be reviewable on appeal. However, for other types of credibility and reliability assessments, common-sense assumptions are permitted. The Court held: “common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of ‘the way things can and do happen’; it is by applying common sense and generalizing based on their accumulated knowledge about human behavior that trial judges assess whether a narrative is plausible or ‘inherently improbable’” (paragraph 73).
our two cents for free
Credibility and reliability assessments are among the most difficult tasks for decision-makers. Hearing Tribunal members can rely on common-sense assumptions about human behavior, so long as they do not engage in impermissible myths and stereotypes when assessing witness testimony.
question
Do your Hearing Tribunal members have adequate training on how to make credibility and reliability assessments of a witness’s evidence, and an understanding of the policy reasons prohibiting Tribunals from engaging in myths and stereotypes regarding complainants in sexual abuse allegations?
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