Kerri Froc: Judicial sense and nonsense

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In March, the Supreme Court of Canada issued a decision saying judges are entitled to rely on common sense assumptions about how human beings behave to assess the credibility of testimony, without the need for the Crown to lead evidence to support them. You would think this would be uncontroversial, but R v Kruk was a decision restoring sexual assault convictions. Nothing is ever straightforward in sexual assault law. This is no more evident than in a Saskatchewan appeal of a sexual assault acquittal I’ve written about before, Ukabam. The Court of Appeal upheld the decision of Justice Brian Scherman finding three sexual assault complainants credible but mistaken about their gastroenterologist assaulting them.

Shockingly, the Crown appeals division in Saskatchewan decided this month not to appeal this piece of judicial nonsense. It does not bode well for improving the pitiful rate of holding sexual assault perpetrators to account.

Sexual assault is an area of law corrupted by discriminatory beliefs about women. In no other area of law were victims of crime required to forcefully resist and immediately report (raising a “hue and cry”) in order to be believed. Additionally, complainants’ testimony needed to be corroborated with additional evidence apart from their testimony, because women were supposedly prone to lie about sexual assault. Parliament had to legislate in order to prohibit judges from relying on such myths and stereotypes enshrined in judge-made (“common”) law.

In Kruk, the Supreme Court said the Criminal Code prohibiting a judge relying on these discriminatory rules about sexual assault victims is different than a rule banning a judge from using his life experience to assess whether an accused person is telling the truth. A judge is entitled – in fact, obliged – to assess credibility using their common sense. The Crown does not need to provide additional evidence to these assumptions about how humans behave. It is only when a judge’s “common sense” is completely off the wall (a “palpable and overriding error” in legal terms), then their assessment can be overturned.

We make common sense assessments of credibility all the time when we are dealing with people. If I told you my friend says they are really interested in getting together but constantly cancels plans at the last minute or ghosts me completely, you would assume she is not sincere, for instance. To make this assessment, I wouldn’t need to tell you about all my other friends who follow through on plans to meet with me, or that the flaky friend keeps appointments that really matter to her (much less needing to get a psychologist to provide their expert opinion about the friend’s motivation or about typical behaviour in friendships).

The Saskatchewan appeal decision upholding Sylvester Ukabam’s acquittal turns the Supreme Court decision on its head. Justice Brian Scherman, relying on the British Columbia Court of Appeal (erroneous, as it turns out) ruling in Kruk that he could not rely on common-sense assumptions about the accuracy of physical sensations of sexual touching. Instead, he extrapolated from expert medical evidence about pressure felt from a rectal exam, to find that such pressure could be mistaken for vaginal penetration.

The complainants testified with certainty that during a medical procedure (a colonoscopy) or examinations, Ukabam digitally penetrated their vaginas. Both accused and defence agreed there would be no medical reason for him to do so; therefore, his sole defence was the sexual touching did not occur. The judge’s decision of reasonable doubt hinged on the finding the women could have been mistaken. He refused to accept, as a matter of common sense, that a woman would be unlikely to mistake her vagina for her rectum. He criticized the Crown at trial for failing to lead evidence on the “reliability of sensations of vaginal intrusions in the circumstances which the various complainants presented on the days in question.”

Compare what the Supreme Court said in Kruk, namely, “It belies belief that questions of neurology, physiology, or psychiatry would be engaged by testimony that an intoxicated witness was certain that they were physically assaulted in some other way…such that expert evidence would be required to support that testimony – yet this is exactly the type of evidence the court implied was necessary… in the context of penile-vaginal penetration.”

The trial judge also refused to accept the alleged sexual assaults perpetrated by Ukabam were evidence of a pattern – that it constituted “similar fact evidence.” To the contrary, the judge appeared to rely on the opposite – implying that because the accused had conducted “thousands” of examinations on female patients and yet was charged only with seven counts of sexual assault meant they should be regarded skeptically. Again, contrast decisions by the Ontario Court of Appeal, including one where it upheld the conviction of an anesthesiologist for sexually assaulting 21 women during medical procedures. As it recently said in a case this year, multiple complaints by non-colluding witnesses are indicative of guilt: “There is strength in numbers. Repetition engenders probative value.”

In a convoluted, technical decision, the Saskatchewan Court of Appeal upheld Justice Scherman. It found he erred in not accepting the testimony of the complainants as establishing a pattern of similar fact evidence, but that it did not affect his decision to acquit. If that makes you scratch your head, you are not the only one. The appeal court appeared to be swayed by the judge’s idea there might have been “subconscious collusion” after some of the complainants heard news reports about the accused, and his use of the expert evidence. But as a matter of common sense, however, one might question whether, if a number of women could be similarly mistaken about innocent gastroenterology procedures, why we do not have an epidemic of medical personnel wrongfully accused of sexual assault, not just one gastroenterologist on the prairies.

Ukabam shows how easily the spirit behind the Supreme Court’s admonishments is capable of being circumvented. The Court said sexual assault judges are to use common sense assumptions about human behaviour to help decide who is telling the truth. But even if sexual assault complainants’ credibility can no longer be attacked based on discriminatory beliefs, accused men may still be acquitted based on the possibility it is women’s bodies themselves that “lie.” Now that the Saskatchewan Crown has decided not to appeal to Ukabam, we are right to still be concerned about whether common sense is really that common in sexual assault trials.

Dr. Kerri A. Froc is a professor in the Faculty of Law, University of New Brunswick. The opinions she expresses are her own and should not be considered legal advice.