SCC Hears Appeal on Stereotypes in Sexual Assault


Yesterday on February 9, 2018, the Supreme Court of Canada dismissed an appeal from the Alberta Court of Appeal, which held that a trial judge prejudicially relied on stereotypes about sexual assault survivors in an acquittal. The appellant was charged with three counts of sexual assault and sexual interference involving his step-daughter. The alleged assaults occurred on a regular basis from 2008-2014 while the complainant was between the ages of 10-16.

The trial judge acquitted the appellant because he found a reasonable doubt in the complainant’s credibility. The sole reason for this doubt was that the child complainant had not made a concerted effort to avoid the appellant. The trial judge stated:

“As a matter of logic and common sense, one would expect that a victim of sexual assault would demonstrate behaviours consistent with that abuse or at least some change of behaviour such as avoiding the perpetrator.”

The Attorney General submits that although the trial judge properly instructed himself not to rely on stereotypes that require sexual assault survivors to make a timely complaint, his reasoning in turn relied on other stereotypes. The Alberta Court of Appeal found the trial judge’s reasoning of how people, especially children, should react to sexual assault not to be “a matter of logic and common sense.” The appellate court noted this finding was not based in an evidentiary record, but on a prejudicial stereotype resulting in legal error.

Canada’s criminal legal system has a long history of relying on stereotypes and myths in sexual assault trials. Some reforms have addressed this issue, such as amendments to the Criminal Code to make evidence on the complainant’s sexual reputation and history inadmissible. As this appeal clearly shows however, stereotypes continue to influence sexual assault jurisprudence.

While the reliance on stereotypes in this appeal are clear, in other sexual assault cases the use of stereotypes may be more insidious. This case speaks to the importance of judicial training in sexual assault laws and myths. In this decision, the trial judge could acknowledge stereotypes on timely complaint but could not identify the stereotypes in his reasoning on sexual assault survivors’ behaviour following an assault. This issue is not isolated to only this judge, but widespread

Bill C-337 seeks to address this deficiency in our judicial system. The bill seeks to amend the Judges Act to make comprehensive sexual assault education a requirement for judicial appointment. The bill is currently at the Senate in its second reading.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.