To support us, please follow us wherever you're listening and visit our website to provide feedback.
Criminal law — Appeals — Standard for appellate intervention — Credibility and reliability assessment
(00:00:20) Reasons for Judgment: Martin J. (Wagner C.J. and Côté, Kasirer, Jamal and O’Bonsawin JJ.)
(00:00:28) I. Introduction – 1
(00:03:13) II. Background – 5
(00:03:14) A. Mr. Kruk – 5
(00:04:15) (1) Trial Decision – 7
(00:06:02) (2) British Columbia Court of Appeal Decision – 9
(00:07:03) B. Mr. Tsang – 10
(00:08:34) (1) Trial Decision – 13
(00:10:04) (2) British Columbia Court of Appeal Decision – 15
(00:10:57) III. Analysis – 16
(00:12:28) A. The Proposed Rule Against Ungrounded Common-Sense Assumptions – 19
(00:19:15) B. The Proposed Rule Against Ungrounded Common-Sense Assumptions Should Not Be Adopted – 27
(00:19:55) (1) The Proposed Rule Is Not a Logical Extension of the Prohibition Against Myths and Stereotypes About Sexual Assault Complainants – 29
(00:21:04) (a) The History of Myths and Stereotypes Against Complainants – 31
(00:31:47) (b) The Proposed Rule Should Not Be Adopted as a Corollary to the Prohibition Against Myths and Stereotypes – 45
(00:32:17) (i) The Proposed Rule Disregards the Distinct Character of Myths and Stereotypes – 46
(00:43:38) (ii) The Accused’s Rights Remain Protected – 58
(00:50:04) (iii) The Difference Between Factual and Legal Speculation – 67
(00:51:38) (2) The Proposed Rule Runs Contrary to Established Standards of Review and Is Counterproductive to Proper Testimonial Assessment – 69
(00:52:55) (a) The Role of Common Sense in Evaluating a Witness’s Testimony – 71
(01:01:22) (b) Established Standards of Review for Credibility and Reliability Assessments – 80
(01:11:16) (3) Summary – 92
(01:17:03) IV. Application – 100
(01:18:13) A. Mr. Kruk – 102
(01:25:17) B. Mr. Tsang – 110
(01:37:26) V. Disposition – 127
(01:37:35) Concurring Reasons: Rowe J.
(01:37:38) I. Overview – 128
(01:42:02) II. Jurisprudential Background – 134
(01:46:02) III. Principles of the Fact-Finding Process – 141
(01:46:38) A. Foundational Concepts – 142
(01:52:20) B. Generalized Expectations in the Fact-Finding Process – 151
(01:58:31) IV. Framework for Appellate Review of the Use of Generalized Expectations in the Fact-Finding Process – 160
(02:01:09) A. Did the Trial Judge Rely on a Generalized Expectation in Their Reasoning Process? – 165
(02:05:17) (1) Materiality and the Curative Proviso – 171
(02:11:56) B. If the Trial Judge Relied on a Generalized Expectation, Was the Expectation Reasonable? – 181
(02:18:54) (1) Question of Law or Fact? – 190
(02:30:59) (2) The “Rules” in JC – 209
(02:34:49) C. Did the Trial Judge Rely on a Generalized Expectation as Itself a Conclusive and Indisputable Fact? – 214
(02:39:23) V. Application to These Appeals – 220
(02:39:36) A. Mr. Kruk – 221
(02:46:57) B. Mr. Tsang – 233
(02:48:52) (1) A Person Would Not Ask To Be Spanked While Engaging in Sexual Foreplay “Out of the Blue” – 236
(02:51:38) (2) A Controlling Person Would Not Refrain From Engaging in Vaginal Intercourse Because of the Absence of a Condom – 240
(02:55:17) (3) A Person Would Not Abruptly and Unceremoniously Leave Another With Whom He Had Engaged in Consensual Sex – 245
(02:58:33) VI. Conclusion – 249
