Supreme Court of Canada Hearings

Please be seated. In the matter of D.R. Appellant and His Majesty the King Respondent, appearing for the Appellant, Jason Edwards, appearing for the Respondent, Sean Peton, I would note that there is a publication ban in this matter pursuant to Section 486.4 and Section 539, Subsection 1 of the Criminal Code. I would call on counsel for the Appellant, please. Forgive me, but I have only one regret for your appearance, because I'm pleased to see you, as I'm sure as are all of my colleagues. My only regret is that I will not be seeing Derek Hogan today. His demise was a great loss to the profession.

I thank you, Justice, for saying that the loss of Derek Hogan was a loss not just to the entire legal community in Newfoundland especially, and the appellate work and to the court, but to myself as well. And I thank you for your kind words. It is a sad appearance here today. While appearing before the court is always an honor, appearing under such circumstances is sad. Thank you. Please proceed. Okay. Good morning, Justices. Our appeal here today is very specific and on point. We believe that the court of appeal with respect erred in overturning the acquittal of my client. We believe that the court of appeal erred by finding that the credibility rulings of the trial judge was in fact a use of stereotypical reasoning versus an assessment of credibility. We believe that the mistake made by the majority of the court of appeal is very much on point with the mistakes that are pointed to be avoided in Arra versus Cook and Arra versus Roth. There are permissible uses for the evidence that the trial judge relied upon. No one disagrees that you cannot rely upon stereotypical considerations to enter an acquittal. That's not a point. Myself and Crown Council are entirely in agreement on that. What the danger is, as is pointed out in Cook, that sometimes in an effort to avoid falling into the trap of applying stereotypical reasoning, that they can ignore, a trial judge can ignore the responsibility that they have to assess credibility. And this is what brings us here today. I point out, I draw the court's attention to Arra versus Cook in tab two of our book of authorities. In paragraph 29, the Nova Scotia Court of Appeal drew attention to Arra versus Roth, and it quotes from paragraph 130 of that decision. And this is found in, I think, the fourth page of that decision, as paragraph 29. In Roth, it is pointed out that the risk of myths and stereotypes distorting a judge's fact-finding or reasoning process does not prohibit use of a complainant's behavior for all analytical purposes, assuming the evidence surrounding the behavior is properly before the court. And in Arra versus Roth, the court draws attention to the work of Professor Lisa Dufremont in myth interference and evidence of sexual assault trials, a portion that is quoted in a number of the cases cited by both the appellant and the respondent in this case. In paragraph 131 of Roth, which is cited in paragraph 29 of Cook, she points out, repudiating myths and stereotypes means rejecting certain discriminatory lines of reasoning, but it does not make whole categories of evidence irrelevant or inadmissible. Indeed, sweeping prohibitions that would rule out any consideration of particular forms of evidence are avoided as inconsistent with the accused's right to make full answer and defense, and with our overall approach to finding facts. And with respect to the Newfoundland Court, the majority of the Newfoundland Court of Appeal, we believe this is the trap that they fell into. Instead of looking at what use the trial judge made of the evidence, as he explains in his ruling, they sweep aside that and come to the conclusion that he was relying upon stereotypical reasoning.

But can we start here? That the stereotypical reasoning that is problematic can go to an credibility assessment. I think we would all have to agree. I mean, in fact, one of the twin myths that unchaste women lie is a myth that goes directly to a credibility assessment. Similarly, you couldn't say that the failure to raise a human cry would create a credibility issue. So when we're looking at the interrelationship between stereotypes and credibility here, isn't the problem you face is that there's no relevance to the things that were pointed out as potential inconsistencies here without reliance on the stereotype that if she is happy to see her grandfather, that a sexual abuse didn't take place?

with uh... thank you just for the question that is exactly the point they were making in our appeal that is not what happened for example by to draw a metaphor as you said uh... a person who was a victim of sexual assault myth is they're going to call it if they're in trouble that cannot be used for the purpose of challenging the credibility however for example uh... if a complainant says that they did call out but there's evidence before the judge that in fact there was no call out the issue is not whether or not uh... a complainant would call it under certain circumstances it has more to do with the evidence they've given to say for example the police into the court that's an inconsistency and that's what we're dealing with in this case the issue is not whether or not she was happy to see her grandfather the issue is whether or not she reported that to the police and to the court with the inconsistencies between that evidence that's what's at heart here is not why she was sad

But the Court of Appeal, Mr. Edwards, and your colleague on the other side, suggests that if the impermissible stereotype was removed, there would be no inconsistencies. The Court of Appeal says that, flatly at paragraph 50 and 46, that both of the inconsistencies pointed to by the judge are rooted in the idea that post-assault expression of happiness by a complainant signals a normal, strong relationship with the grandfather. And if you pull that stereotype out, because that's a stereotype, that's an impermissible stereotype, says the majority of the Court of Appeal, well then the two inconsistencies that the trial judge pointed to are no longer inconsistencies at all. They're only inconsistencies on the basis of the stereotype. I think that's what you need to answer.

And thank you, Justice. And I understand the question, and I saw that in the Court of Appeal. I believe you can actually remove that stereotype from the equation, and the incidences still exist, because the issue is not whether or not she was happy to be seeing her grandfather or act a certain way around him. It's that she said on one hand that she wasn't, or that her behavior changed, and was said as something different at trial. That's the inconsistency that the appellant is drawing attention to, and that the dissent in the Court of Appeal correctly saw as being within the discretion of the trial judge.

Can I bring you back to that though? I mean, when... let's accept your point that it's for a different purpose and it's... we're just talking about inconsistencies. I have a very difficult time reading this transcript as showing any inconsistency given the way that the question is framed to this young person. In a general sense, what's your relationship? Tell me there's no time frame in that question. We have a young person who says, I'm happy when I see him. This is ambiguous in terms of time frame and then she gives an explanation why she's happy because he often buys her presents from Walmart. And then we're asked to say that that's inconsistent with another line of questioning which is equally ambiguous as to time. Equally... do you remember telling the officer at that time that you're happy? Yes. And then she gives an explanation. No, the timing is different. So what... I'm even struggling with the establishment of the inconsistency and if I stop the... even if I say, okay, I'll stretch and see an inconsistency here, how is that possibly material especially absent the use of stereotypic reasoning?

The question is not necessarily, that question almost all goes directly to the issue of adequacy of inconsistencies. It's our position that the question, and we believe the majority of the Court of Appeal sort of took that approach, is that there's not enough inconsistencies. You know, it's inadequate. We believe that they are there and that they do show inconsistencies. And while they may be relatively minor, the trial judge was careful to point out that he was dealing with the whole factual matrix as a whole, you know, in assessing your credibility. So when the Crown is appealing an acquittal, the issue is not whether or not, because the highest standard you have to meet, we would suggest that there has to be no evidence before the trial judge that it can use. And we believe that there is some evidence. Perhaps another trial judge may have found the inconsistencies inadequate to make a finding of credibility, but that's within his discretion as a trial judge in assessing credibility in the entirety of the evidence before him. We do believe that, and I know my colleague is going to argue that these weren't inconsistencies, but we agree with the trial judge that they were, the adequacy of which falls within his discretion as a trial judge.

Isn't the issue that you're not dealing with sort of a factual, maybe this is following up on Justice Martin's question, isn't the issue that you're not dealing with a factual question of what happened? Yes. X or Y, but a description, a subjective description of somebody's emotional state. And it seems that it is very difficult to extricate any factual element from a description of somebody's emotional state. And you are inevitably relying on the inference that, as the basis of the inconsistency, that otherwise you would have avoidant behavior. Isn't that the problem? That it is a subjective description of emotional state, which becomes... It's very difficult to dissociate that from a concern about stereotypes.

And we acknowledge that. But again, we go back to the issue is not why she said it or why she behaved in a certain way, which goes directly to the use of stereotype, but whether in fact it did happen. So yes, but we acknowledge that it is difficult to remove the two. I'm not sure if I answered your question justice.

because we believe that it's, you know, we acknowledge that it is difficult, but in this case it is clear we believe that the trial judge did the appropriate thing, did not rely upon why or how, did not rely upon whether or not you know, she was avoiding the grandfather, had to do with whether her description of her behavior towards her grandfather. So it's not the actual behavior that forms the inconsistency, it's her description of the behavior. And that is our argument. And so there is some evidence of inconsistencies, and that brings us right back to the discretion that a trial judge has in determining credibility. And he is clear to say that he's pointing out a number of things that he had problems with when it comes to her credibility. So it's the entirety of it, and that falls squarely within his discretion. A discretion that I believe the majority of the Court of Appeal with respect did not pay attention to. And they made the mistake that Cook and Roth both pointed out must be avoided. You can't sweep it aside simply to avoid falling on stereotypes.

Well, I just, this, I don't want to dance in the head of a pin, but I think that if one looks at, in the course of appellate review, the weighing of credibility, one may take a deferential standard. That doesn't mean that it's a discretionary decision, right? The exercise of discretion is a little bit different from the fact-finding role where you accord a degree of deference. I'm not sure it amounts to much, but the nomenclature, it seems to me, isn't quite right there.

No, and I understand what you're saying again, that maybe my mistake can use the denominator, but it comes down to is there any evidence of inconsistencies because it is a crown appeal of an acquittal.

But when when a trial judge relies on anything related to a stereotype doesn't that skew his view about the rest of the evidence?

I would suggest that it doesn't, Justice. If you look at Cook and Roth, I think if that's the approach you take to a trial judge assessment, then what you are in fact doing is sweeping aside it in its entirety. There are permissible uses for evidence like that. It is relevant to the issue of credibility. What's not relevant is using it for an impermissible purpose. So the trial...

Just second so you said that there there's permissible uses so am I understanding you to say there's permissible use of Stereotypical evidence as long as you link it to credibility assessment

No, no, no, no. Stereotypical evidence is not permissible in a case like this or in any other case like it. What I'm saying is, for example, I go back to the example of the myth that if somebody is being the victim of a sexual assault, they're going to call out. You can't use that. However, if a complainant gives a statement that she did call out and there is evidence that she did not call out, then the inconsistency is in what she said, not in what actually happened. It's irrelevant why she said it at the time. And that's where the myth must be separated from its permissible uses. And I think that's what we're dealing with here. And if you look at the trial judge's decision as a whole, I think he is alive to that issue. But we do have to be mindful of, for example, situations like in Cook where it was completely swept aside.

Can I bring you to the second inconsistency that the trial judge discussed? And that's an inconsistency between two witnesses. Yes. As opposed to the one witness inconsistent statement model. And help me here, because the child witness says there was abuse, and the mother witness says, I didn't see it and I saw a strong relationship. What is the inference? How is it that the mother statement is at all relevant? And on what inference that is non-stereotypic, can that come to pass? Because as I reason my way through it, the inconsistency is built upon one of two ideas. One of them is the mother would know if there had been abuse, or the relationship couldn't appear strong if there had been abuse. What's the missing link that makes this just an inconsistency between evidence that's not grounded in one of those two observations, which would qualify as something that's not supported by our jurisprudence or our understanding of human behaviour?

And, and yes, I will acknowledge that. That's the second inconsistency is problematic. But if you look at the entirety of the findings of the trial judge, these weren't the only two factors that he found in assessing credibility. That's where we come down to. He found her evidence to be vague. She didn't remember a lot of things, which in and of itself may not have enough to challenge her credibility. He was also concerned about collusion and he was also concerned about the initial, the first inconsistency. So I think even if you remove that second one, I think there's still enough inconsistencies that the trial judge would have reasonable doubt. So I think that's where we are with that. But we acknowledge that the second inconsistency is problematic. The corollary of that question is, is that, and this ties to Justice's other question, is that does, is this evidence of the trial judge sort of being tainted when he's making the assessment of credibility? Did his reliance upon a stereotype shape his view of the evidence? I would suggest no, because he is careful to explain this is not the only basis upon which he makes these findings of credibility. So you have to look at the entirety. As I indicated earlier, the crown in appealing and acquittal has a very high bar to meet. We would suggest that the test is that, is there any evidence there that would support his findings? We would suggest there was some. The trial judges may find it to be inadequate, but this man, this judge did find it adequate to make a finding of reasonable doubt. And as is also pointed out in our factum, there is the issue of ambiguity. If there is an ambiguity in his ruling, we would suggest that it should go to the favour of the trial judge who is presumed to know the law. So if you take it as a whole, he's presumed to know the law and therefore deference should be made to his findings, because we suggest the ambiguity should be resolved in his favour as part of discretion to a trial judge. As I've pointed out, this is a very specific issue. And the court has our factum. It is a brief factum, but it is very much on point. So subject to any questions that the court might have, those be our submissions on this case. As I said, it is a very pointed issue. It is very specific. We're not dealing with a number of different issues. It is just that one specific issue, and it does come down ultimately to deference to the trial judge's finding of credibility, a recognition that he was making a finding of credibility but not relying upon the stereotypes. And with regard to the second inconsistency, even if that is problematic and is removed from the equation, there still is adequate evidence there upon which you could make a finding of credibility, which points out that the Crown has not met its owners in appealing that, because there is some evidence. There is not no evidence. So subject to any questions that the court has, I thank you for your time.

Thank you, Mr. Edwards. I call on Mr. Patton, please.

Thank you, justices. After hearing the questions that were posed to my friend, doesn't appear that the issue really is whether we're dealing with the stereotype.

but i will i think if you just a little closer to the microphone would help

I'm going to take my mask off. That's okay. I'll repeat what I said. You know, based on what I've heard, the questions canvassed with my friend, my colleague, it doesn't appear so much that we're dealing with a stereotype as what rather the question is whether that stereotype played any role in assessing the inconsistencies and whether it was material in the ultimate outcome. I will briefly discuss why the Court of Appeal got this correct, I'll say, in determining that we're dealing with a stereotype. I'll start by saying the trial court placed much emphasis on the strength and normality of this relationship between the complainant and the appellant. As I noted before, the Court of Appeal and the Court of Appeal agreed, strength and normality became relevant to the trial judge because during the complainant's statement to police, it happened to come up, as Justice Martin mentioned, that she was happy when she saw the appellant. As the Court of Appeal noted, the utility of happiness was based on the stereotype that a victim of abuse could not be happy to see their abuser as abuse would prevent any type of normal relationship. That stereotype assumes that a victim is unable to develop or feel any positive or tolerant feelings towards their abuser due to the pervasive nature of the abuse. It's a mouthful, but when you think about it, that's what the judge is doing, because it's not something that's clear immediately when you read it, but you see that's what the trial judge was doing and that's what the Court of Appeal pointed out. When the...

When judges speak about stereotypes, because judges talk in one language, from my education at Memorial University, which is reaching back quite a long time ago now, into psychology, it seems that what, it seems to me at least, that what academics and jurists have identified as stereotypes is really a misunderstanding of human behavior, and applying that misunderstanding of human behavior to make an inference which is unwarranted. Which is another way, I think, of saying what you just said, that it is quite possible for someone, we now understand through psychology, it's quite possible for someone who is the victim of abuse to at the same time exhibit a friendliness towards the person who's abusing them. Intuitively, superficially, it seems dissonant. How can these two things exist? But upon investigation, scientifically, it seems now established that that is indeed quite possible as a sort of a coping mechanism. There are other ways of expressing it. So stereotypes, it seems to me, are not these strange exotic things that are just juristic. They're really a way of jurists recognizing what has been an incomplete and flawed understanding of the human condition, or human nature, and human behavior, which now we have understood better, and therefore relying upon the obsolete understanding of human behavior gives rise to faulty reasoning to which we apply the label stereotypes.

Yes, and that's correct. And I'll speak about that in a moment because DD out of this court talks about the dangers of making assumptions based on victim's behaviour. And I'll talk about that in a second, Justice Roe. As the court of appeal noted in this case, strength and normality was not the question that the trial judge had to figure out or consider. The issue was whether the complainant was sexually abused. She got sidetracked and the court of appeal found that to be the case. As I just indicated a moment ago to Justice Roe, a victim may not act normal for a number of reasons and it's not an indication of anything. They could be fearful, they could be embarrassed, they cannot appreciate what's happened to them. And I also provided the Ontario Court of Appeal decision of W.O. in my condensed book and in my book of authorities to remind us that we have to look at the dynamics between a victim and a perpetrator. These are complicated relationships. And for a child, it may be overwhelming to come forward. This case had just about every one of those markers in it. In the evidence, in the police statement which became the evidence on voir dire, this complainant spoke about being embarrassed and I'll just I don't need to read that in but I'll just point out for quick reference for this court, you'll see a tab 3 of my condensed book, page 88. Just look in the corners, it's kind of hard to see but page 88. You'll see it line 22, the officer is asking her do you want to tell me about this? It goes back and forth a bit. The officer asks her you're probably a little embarrassed and she says hmm. The officer said that's understandable but just want you to know we're here for you. The next page, you know, she tries to reassure her and then she goes on again, the officer, you're a little bit shy to tell me about it? Mm-hmm. We also have a classic example in this case of the complainant perhaps not appreciating what's happening to her. Go to tab 7, I kindly ask the court of the respondent's condensed book. This is the mother on cross examination. Line 15. And just in relation to the complainant, just a general observation that you make about her is that whenever her pop your father would visit, the complainant was always hugging and hanging on to him looking for his attention. Is that a fair statement? This is the mother's response. Yeah, well, she was that's what she was shown from him. He was telling her it was out of love. That's what love is. So that's what she thought was normal. And I won't go on much further. I realized after it's not in my condensed book but you can look as well at the record of the appellant at tab 8, page 20, and she does indicate on the voire d'heir she had fear of telling anyone about what occurred. We're hitting all the key points here. Mr. Patten, isn't it?

Another way of expressing what is this, would this be an accurate statement of the law that there are inconsistencies and material inconsistencies and what makes this in the view of the trial judge a material inconsistency is the necessary reliance on the stereotype because people say inconsistent things all the time. They don't bear on somebody's credibility unless they're material and the stereotype supplies that missing link that makes in the view of the trial judge this material and the court of appeals said no that wasn't material quite apart from whether this is a description of a psychological state which you know for which there are gray areas even if it was an inconsistent statement of a psychological state even accepting that premise it only becomes material because of this reliance on stereotype.

Right. That's exactly right. Apologize. I had to get my water. My friend really didn't address it, I think, fulsome enough for this court, but we had to look at why is it material that she was happy or unhappy. How does it go to the matter and issue? I provided a foundation court out of the case at this court. It wasn't even dealing with sexual assault, but it talks about materiality and relevance. We had to go back to first year law school. We have to remember that it has to be material, first of all and foremost. And it's immaterial whether she was happy or unhappy, avoiding our grandfather, because it doesn't get us any further to challenging or getting to the question of whether she was sexually abused. And it is irrelevant to challenging her credibility on her evidence of her alleged abuse. It doesn't get us any further ahead. Period.

Your colleague suggests there may be a way to divorce the credibility findings from the stereotype to show that it would be material to credibility. What's your answer to that? He cites Cook, he cites paragraph 25 of his factum, he mentioned it this morning, Professor Dufresne's article on myths and inferences. Is there any room for separating credibility from the stereotypes in this case?

not in this case that's another point the judge has to conoli absolutely the judge can rely on her happiness he can rely on her avoidant behavior but has to be for miss will purpose and i'm just gonna and i'm gonna ask your question directly in a second but water the inferences here that trial judge left the court appeal first that a victim cannot be happy to see your user if she is happy the relationship is strong and normal therefore non-abusive what's the second inference that a victim would afford abuser or prevent or present negative behavior around her views are that a third party would see if she doesn't the victim is not abused the trial judge use it for those purposes explain how it's lacking in this case probably good to look at roth example in roth that was used in roth as we know the taxi cab driver said something that was inconsistent the victim the concern that the trial court or sort of court of appeal had and what they dealt with was we can't rely on the inconsistency that a victim would call it or scream out if she was in harm's way she's in a sexual assault and the court of appeals and no hold on the problem here with this case is she testified that she came up if you still in your shot of her perpetrator who's at the bottom of the stairs she said i want to say something but i couldn't because he could hear me the taxi cab driver said well actually no she was out by the door she wasn't within your shot the evidence is inconsistent not on the stereotype but on her credibility about whether her perpetrator was in your shot and it goes to the ultimate credibility under allegations of abuse this is lacking in this case we are dealing surely with stereotypes

This is a more general question, not tied really to the circumstances of this case, but I think it speaks to the framework for analysis. Chief Justice Le Maire, who was a great jurist, got himself in hot water one time because he made a comment to the effect that Chinese businessmen were known for gambling, and he was compelled to properly apologize for it because it was stereotypical. If he had made that statement as a trial judge in the course of a lengthy and otherwise flawless analysis, would it be a sufficient basis to order a new trial? Because there was one element of stereotypical comment, albeit it wasn't really in the line of analysis that led to the result.

justice robert difficult question answer because we need to know all the facts that were coming out at the trial proper we know all the facts here and i'm not that i'm avoiding your question i need to know more about what the facts were to see if it tainted the entire decision that's the problem there what was the issue what's the ultimate issue trial judge this case here now i'll go right to that now i'll talk about the issue of materiality i'll start by saying i think there's absolutely no that the trial judge relied on the stereotype to assess credibility there's no ambiguity here and all my friends saying well uh... he had to have known the difference council i think my friends and it was in the spectrum council spoke to this you know in their submissions well gee that's the exact same thing that happened in a r g d index i think springboard and i commented on just chief justice comment he was told about it but he did it anyway and that's what we have here he was told about it but engage in the stereotype the trial judge clearly reached in this case a material factual conclusion and will need to go look at that i think to really see it and in my condensed book we're at tab six paragraph one thirteen of the trial judge's decision the material factual conclusion is to complain it was in a strong and normal relationship up to the time of the allegations where is that eight lines down paragraph one thirteen the evidence satisfies me that a b r had a strong normal relationship with the accused and then are up to the time sisters came forward with the allegations in late twenty sixteen why did you draw that conclusion well it's fit flip it over to back of paragraph one thirteen about six or seven lines down it is my conclusion from the questions and answers from when a b r told the police she was happy when she saw the accused she was describing how she felt at the moment she gave her answer socials happy at the moment she gave her statement socials in a strong normal relationship at the time the allegations that is a material factual conclusion not all and also my friends can see it this but let's throw this on top of it in addition he relied on the evidence of the mother to stop strong normal relationship up to the time of the allegations also based on the stereotype court appeal correctly notes that the acquittal stem from this impermissible stereotypical reasoning of how complainant should have reacted she's being abused by the appellate

But can we even go further here on the first inconsistency? It seems to me reading the evidence as a whole, the use of a stereotype to fill in a gap is one thing. But when there isn't a gap, when the direct evidence of the witness establishes an explanation for the behaviour, she says, I'm happy to see him because he buys me a present. But then further on, and I find this very interesting, when she's asked during direct examination of how it made her feel when she was being abused, she said, well, I didn't think anything of it. And so she is providing an explanation on both sides of the equation as to why that statement might be, as she's explaining from her perspective. And so to fill in an inference when you have direct evidence that says, well, at the time, probably because of my age, she says I didn't think anything of it. She didn't know that it was something that, as she later learned, made her feel disgusted. So it's not even an inference, it's an inference against evidence as well.

Exactly. I skipped over this part of my submissions because it didn't seem I need to go there. But the core of appeal, Justice Hoy spoke about the fact that another error of law was committed by the judge. He didn't consider the evidence as a whole. He should have looked at evidence to support the allegations she was putting forward as is evident in BG. He has to do that. He has to demonstrate he considered the evidence of a whole. I appreciate it doesn't have to be written in black and white. But when you give the case a complete reading, a whole reading, I think a jhm makes clear a reading of the case, you can see his stereotype blinds the trial judge from actually considering the evidence of a whole, considering Justice Martin what you put forward, considering evidence from the mother who established that there was opportunity for this to happen. Let me go out and find that as a reference for this court. She actually indicates tab 7 of my book, condensed book, page 4. I won't read it all out, but you can see there, justices, that she talks about the fact that there was periods of time when the children lived alone or lived with the grandparents over an extended period of time. All of these things when we're going to the core issue of whether she was abused should have been considered. It was supporting the allegations that were being put forward and not really, not at all, challenged in any way outside of the stereotypical assumptions that the trial judge reached.

Mr. Patten, can I ask you a question about your, something you say in your factum? Do you have your factum at your elbow?

Paragraphs 31 and 32 of your factum. And I'll just ask you for a reference for these points. 31, you say the majority in setting aside the decision was correct to conclude that the judge's errors had a material bearing on the acquittal, so it's that word material. In 32, the last sentence at the bottom of page nine of your factum, these inconsistencies played an important role in the conclusion to acquit the appellant. And over the page on 33, the last sentence, as the error grounded the inconsistencies and were material to his decision, the majority was correct to conclude the trial judge committed a reversible error. For this idea of the material impact of the mistake, do you have a paragraph in the court of appeal reasons that you would point to?

Well, it's more that they're talking about that the stereotype is not the matter and issue. Because that comes from my friend's factum. He uses the word material and I responded to it.

Well, if you do you have the judgment, paragraph 61 of the judgment?

Are we talking about the Court of Field decision? Yes. Okay.

So the heading before paragraph 61, did the stereotypical reasoning have a material effect on the judge's acquittal? So actually they did. They did, so I apologize. And in that next paragraph, in this case, you see the sentence, this penultimate sentence, in this case the judge's acquittal of DR was based principally on impermissible stereotypical reasoning, respecting how ABR ought to have reacted if she were truly being abused by her grandfather. Is that in your view a grounding for the points that you make at 31, 32, and 33?

Yes. When I say it probably wasn't the best choice of words in my factum, I acknowledge that by saying played an important role. I think what we had to take from ‑‑ I wasn't they're 친구. You know what they are? The 친구.

being critical of you at all. No, I was just asking for the reference, and I think we've got, and you're saying that that's the reference.

That is the reference. I'll perhaps be more critical of myself because I was thinking about should I use that language. This was a material finding and I'm talking about his finding a fact about the complainant being in a strong normal relationship at the time of the allegations. This wasn't incidental. This wasn't something that really didn't matter in the decision. This was a material finding and I suggest to this court, the Court of Appeal was correct to say that it cannot be safely said the same result would have occurred without the error. And that's what they're saying when paragraph sixty-one in this case the judge's quidditch was based principally on this impermissible stereotypical reasoning and that's what they're talking about. This was the principal finding. It wasn't incidental. That's how I interpret the Court of Appeal. Even if justices other reasons are provided, which my friend spoke to, and the Court of Appeal addressed by the way, it cannot safely be said that the same conclusion would be reached without this error. Trial judge is supposed to assess the complainant's evidence in light of all of the evidence and part of that evidence, a huge chunk of it, is based on a stereotype. So due to this error of law, which is assessment of the evidence based on a wrongly legal principle, a stereotype, it is not possible to divorce this flawed reasoning from the acquittal. I will speak briefly to Justice White in dissent.

But can I just, I mean, part of the reason the Court of Appeal could say that this was material is because the trial judge himself gave very clear reasons as to what he was thinking. I mean, he said there was probably abuse here. I can't say no, it wasn't. And the burden of proof beyond a reasonable doubt is so high. And for these reasons, I can't say that I think there's general credibility, but I can't, I have pause on the reasonable doubt standard because of the things that he articulates. So the reasons themselves are disclosing that it had a material impact.

right i mean it's clear if you look just structurally in paragraph one thirteen he starts off with a bank talking about the stereotype let's get good and he spends a whole paragraph talking about it and that takes the rest of his reasoning there's no question uh... a couple comments about justice white with respect to the stereotype i suggest work with respect to justice white he engaged in the same stereotypical logic nowhere in the complaints evidence that you say that she was in a normal relationship why did he say that because he's complaining happiness with normalness normal strong relationship so unfortunately due to that he felt the same air sex inconsistencies on the stereotype application of the nova scotia court of appeal decision which its name now slips my mind we'll we know the case we're talking about my friend spoke about it we're not dealing with the same situation here as that case in that decision the trial judge cut herself off at the knees every time she came upon something which potentially invoked a stereotype and she didn't do a proper assessment here the trial judge true conclusion that was stereotypical and basis assessment on that so these cases are distinct coming near the end here and i'm just about done justice white suggests and i think he suggests that he says after this paragraph this is paid paragraph sixty seven a tab two he says in a sexual assault trial judging complaints credibility based solely on the correspondence between the behavior and expect behavior stereotypical victims sexual assault is an error of law and he quotes from the this court and he writes in after underlining added i think you meant to say italics at it because the word solely is an italics all i need to say uh... with with great respect and all the some confusion maybe this court will clear this up today stereotypical reasoning the story interpretation that case that's not correct as noted jc at tab twelve my book of the condensed book and i'm about six or seven lines down this is from the ontario court of appeal i thought that the court of appeal did a good job uh... navigating this court says in my view when these courts refer to the impermissible stereotypical reasoning as a sole reasoning there were there this was not a definition they were not defining a precondition to air what were for referring to the particular facts of that case is instructive that near d paragraphs five six majority scrubby errors relying on impermissible stereotype or prejudicial prejudicial generalize generalizations in conclusion stereotype was the only reason offered in so the word solely were directed at the facts in that case doesn't mean if you put other other things for it then it indicates the stereotype and i think that's obvious but i i felt it was necessary to address so i asked that this uh... appeal dismissed appeal i suggested everything correctly here this is stereotypical reasoning at its finest and uh... for subject twenty four questions that would be response missions

Thank you, Mr. Patten. Mr. Edwards in reply. Thank you. The court will retire to deliberate and I would ask that counsel remain at the disposal of the court, please.

First, I would like to thank counsel for their thoughtful reasons. We have deliberated, and we are ready to render our decision unanimously. This is an appeal, as of right, from a decision of the Newfoundland and Labrador Court of Appeal, setting an aside an acquittal and ordering a new trial in a case of sexual assault among other offenses. The accused is the grandfather of the complainant, who was between seven and 10 at the time of the alleged offenses. There was evidence that the complainant was happy to see the accused and exhibited no avoidant behavior toward him. From this, the trial judge inferred that the complainant had a strong and normal relationship with the accused, which caused the trial judge to doubt the credibility of her testimony regarding the alleged offenses. Writing for the majority, Justice Hoyg observed that the trial judge, quote, rested his reasonable doubt on his conclusion that their strong and normal relationship meant that her grandfather could not have been sexually abusing her, end of quote. We agree with the majority of the Court of Appeal that this inference by the trial judge was rooted in stereotypical reasoning, rather than the entirety of the evidence, and that this constituted an error of law. While the trial judge set out other lines of reasoning relating to the complainant's credibility, his reliance on stereotypical inferences undermines his assessment of her credibility, and thus his verdict. The majority of the Court of Appeal decided correctly in the circumstances that the trial judge's stereotypical reasoning had a material effect on the acquittal of the accused. See paragraph 61 of the Court of Appeal reasons and the heading for that paragraph. Accordingly, we would dismiss the appeal and order a new trial. Thank you.