SCC case may clarify permissibility of ‘common-sense assumptions’ by judges in sexual assault cases

A sexual assault appeal recently heard at the Supreme Court of Canada could clarify the permissibility of common-sense assumptions by judges in credibility assessments.

His Majesty the King v. Edwin Tsang comes to the SCC via Crown appeal. The BC Court of Appeal had overturned Tsang’s sexual assault conviction, finding the trial judge who convicted him had rejected his version of events based on three impermissible assumptions about human behaviour.

“It's an important case which has implications for survivors of sexual assault because the way in which the court approaches common sense assumptions and how those are reviewed can have significant implications on the dignity of survivors,” says Humera Jabir, counsel for the West Coast Legal Education and Action Fund Association and Women's Legal Education and Action Fund, intervenors in the case.

“The approach to this common-sense-assumptions analysis can also impact how the survivors experience the courtroom because it could lead to highly invasive questioning and trauma in the court process,” she says.

The SCC heard His Majesty the King v. Edwin Tsang, which originated in BC, on May 18. The court has reserved judgment.

Tsang and the complainant had mutual friends but met for the first time on the night of the alleged assault. While Tsang said the encounter remained consensual throughout, the complainant said that what began as consensual foreplay ultimately resulted in a sexual assault.

According to the Court of Appeal, the trial judge’s generalizations about normative behaviour which did not rest on the evidence included her failure to believe that a person would ask to be spanked “out of the blue,” that Tsang would refrain from intercourse because he did not have a condom, and that someone would “abruptly and unceremoniously” depart from a person with whom they just had consensual sex.

At the SCC, the Crown argued that the Court of Appeal erred in not deferring to the trial judge’s credibility assessment. While a court may only overturn these conclusions in the presence of palpable and overriding error, the appellate court deemed them “ungrounded common-sense assumptions.” This will be the SCC’s first hearing of the proposed “rule against ungrounded common-sense assumptions,” and the Crown told the court not to endorse the rule as an “independent basis for appellate intervention.”

The Crown distinguishes the alleged rule against common-sense assumptions with the rule against stereotypical reasoning, which, in sexual assault cases, prevents judges from relying on discredited myths about sexuality which is a “well-recognized and correct basis for intervention.”

Tsang argued that however one characterizes it, speculation is impermissible reasoning, whether it’s based on stereotypes and myths or ungrounded common-sense assumptions.

LEAF and West Coast LEAF intervened to argue that there should not be a standalone rule against common-sense assumptions by which the reviewing judge can overturn a trial judge’s credibility finding, says Jabir. Such a rule would create inconsistencies in sexual assault law, she says.

“What is a common-sense assumption in one case, might not be considered that in another case. It’s really a challenge for the consistency of verdicts.”

Another of LEAF’s concerns is that when an appeal court overturns a verdict based on a common-sense assumption, the court could replace those assumptions with its own myth- and stereotype-based inferences. This could perpetuate myths and stereotypes about consent and credibility findings for survivors, says Jabir.

“If common-sense assumptions, writ large, are a problem, that creates a high burden for complainant’s evidence,” she says. “A Crown may have to ask very invasive and traumatic questioning to ensure that there is an evidentiary basis for every assumption that a trial judge makes to ensure that it is founded when it comes to an appeal.”