The B.C. Court of Appeal has overturned the conviction of a man for sexual assault on the ground that the trial judge engaged in speculative reasoning about what the victim had felt, but a legal scholar says she is concerned the decision could open the door to questioning women about their past sexual history.
Christopher Kruk had been found guilty at trial for the sexual assault of a woman who was described as “highly intoxicated.” The woman admitted in court that she was unclear about some details of the evening in question but said she clearly remembered waking up to find Kruk on top of her with his penis inside her vagina. The trial judge had concerns about the reliability of the complainant’s testimony due to the “extreme” level of her intoxication (blood alcohol tests indicated she was nearly three times the legal limit to drive) but he said that it was “extremely unlikely” that a woman would be mistaken about the feeling of having a penis inside her vagina and thus convicted Kruk, who maintained he was innocent of the charge against him.
But B.C. Court of Appeal Justice Leonard Marchand wrote the lower court judge’s findings on the issue of penetration “was not grounded in the evidence and was not the proper subject of judicial notice or common sense.”
“It is a finding that was not sought by the parties, was not grounded in the evidence, and engages questions of neurology (the operation of the body’s sensory system), physiology (the impact of alcohol on perception, memory and the body’s sensory system) and psychiatry (the impact of alcohol and/or trauma on perception and memory),” he wrote. “[The trial judge] did not make a finding that was tethered to the evidence. Instead, he engaged in speculative reasoning. He made an assumption on a matter that was not so well known as to be notorious, that was not capable of immediate and accurate proof by resort to a readily accessible source of indisputable accuracy, or that was a matter of common sense.”
Isabel Grant, University of British Columbia
Brent Anderson of Vancouver’s Johnson Doyle, who represented Kruk, said a fundamental tenet of the Canadian justice system is that decisions can only be made on the basis of evidence that is led at trial.
“A trial judge can only take judicial notice of a fact not led in evidence in very limited circumstances,” he said. “The fact in issue in this case did not meet that stringent test.”
Isabel Grant, a criminal law professor at the University of British Columbia, said she feels the decision “opens up a number of troubling possibilities.”
“Does this mean we are going to start questioning complainants about what they have experienced in the past and do they know what this feeling is like? To me that seems to be opening a door to questioning women about their past sexual history and about sex they may have participated in when they were intoxicated,” she said. “This is someone who testified quite openly that she didn’t remember everything, but she distinctly remembered this and was confident about it. If a woman said she was drunk and this man came up and punched me in the back of the head we would never pursue what a punch in the back of head feels like, and I think that goes to not believing what women report about sexual violence when they are intoxicated.”
But Anderson said the Court of Appeal’s decision was “in no way, shape or form based on stereotypes.”
“A fair reading of the decision reveals it was based solely on a fairly unique legal error on the part of the trial judge — that taking judicial notice of a highly contested fact without any evidence on the point having been led at trial,” he said. “As the Court of Appeal noted, it was open to the trial judge to accept the complainant’s evidence. However, it was not open to the trial judge to do so by impermissibly taking judicial notice of that fact.”
B.C. Prosecution Service (BCPS) spokesperson Daniel McLaughlin said in an e-mail that the Crown has decided to seek leave to appeal the decision to the Supreme Court of Canada.
“We expect to file our application for leave to appeal the court’s decision within the next few weeks. The complainant has been advised or our decision in this regard,” he said. “As the matter continues before the court there will be no further comment at this time.”
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