Ottawa, unceded Algonquin Anishinaabe territory, March 8, 2024 – Today’s Supreme Court of Canada’s (SCC) decision affirms the importance of protecting survivors’ equality and dignity rights in the trial process, says West Coast LEAF and LEAF.
In its decision in R v Kruk and R v Tsang, the Court ruled against recognizing the proposed rule against “ungrounded common-sense assumptions” as grounding an error of law. In doing so, a majority of the Court emphasized the unique purpose of the prohibition against myths and stereotypes about complainants in sexual assault cases.
This case addressed the important question of how courts approach the credibility analysis in sexual assault cases where a trial judge has relied on a common-sense assumption.
Survivors of sexual assault already face an increased risk of facing traumatic and intrusive questions during trials. West Coast LEAF and LEAF intervened to argue that the lack of clarity around the rule against “ungrounded common-sense assumptions” increased this risk and created room for the use of stereotypes. This would create additional barriers to access to justice for survivors, who are more likely to be women, girls, trans, and non-binary people, often from intersecting marginalized communities.
“The Supreme Court explicitly recognized the very real harms that complainants could experience from the adoption of this rule,” says Megan Stephens, counsel for LEAF and West Coast LEAF. “We welcome the recognition that this could open a ‘back door to prohibited twin-myth reasoning’ as trial judges look to ‘ground’ their findings about a complainant’s testimony.”
In its decision, the majority specifically acknowledged that “the prohibition against myths and stereotypes about sexual assault complainants carries with it a discrete history, purpose, and character.” The Court held that a new rule against common-sense assumptions would expand this specific context beyond its proper scope.
“The court has rejected that a new rule preventing assumptions is needed to create parity between accused and survivors in the trial process,” says Humera Jabir, Staff Lawyer at West Coast LEAF. “The court has affirmed that the existing rules prohibiting myths and stereotypes do not create an advantage for survivors but remedy the serious inequality and unfairness that many survivors continue to face.”
“Today’s decision will have significant impact for all sexual assault survivors going through the trial process,” says Roxana Parsa, LEAF Staff Lawyer and co-counsel. “The decision signals a clear recognition of the ongoing harms perpetuated by the legal system against survivors of sexual violence.”
West Coast LEAF and LEAF are grateful to Megan Stephens for her pro bono representation before the Supreme Court, alongside staff lawyers and co-counsel Humera Jabir and Roxana Parsa.
For media inquiries contact:
Roxana Parsa
Staff Lawyer, LEAF
[email protected]
About West Coast LEAF
West Coast LEAF is a non-profit organization formed in 1985, the year the equality guarantees of the Canadian Charter of Rights and Freedoms came into force. West Coast LEAF’s mandate is to use the law to create an equal and just society for all women and people who experience gender-based discrimination in BC. In collaboration with community, we use litigation, law reform, and public legal education to make change. For more information, visit westcoastleaf.org.
About LEAF
The Women’s Legal Education and Action Fund (LEAF) is a national, feminist, non-profit organization that works to advance the substantive equality rights of women, girls, trans and non-binary people in Canada through litigation, law reform and public legal education. Since 1985, LEAF has intervened in more than 130 cases that have helped shape the Canadian Charter of Rights and Freedoms. To find out more, visit www.leaf.ca.
