R v Cepic, 2019 ONCA 541: Common Sense Masking Stereotypical Assumptions In Credibility Assessments

In R v Cepic, 2019 ONCA 541 the Court of Appeal for Ontario (Benotto, Roberts and Miller JJ.A.) allowed an appeal where the trial judge's resort to ‘common sense’ to assess credibility, according to the Court, masked improper reliance on stereotypical assumptions about human behaviour. Writing for the Court, Madam Justice Benotto held that the trial judge used assumptions about female behaviour (i.e. what a woman would or would not do) as the basis for accepting the complainant’s testimony and to undermine the appellant’s credibility. The trial judge also seemed to rely on stereotypical assumptions about male aggression. I won't get into the facts as the judgment is brief.

The Court distinguished the judge's "blatant assumptions" in this case from other cases where trial judges properly made credibility assessments based on assumptions about human conduct (see R v Quartey, 2018 SCC 59, at para. 3; R v G.H., 2018 ONCA 349, at para. 5; R v F.B.P., 2019 ONCA 157, at para. 9), because the assumptions in those cases were linked to "what a particular person would do in the specific circumstances of each case". In contrast, the generalized assumptions about women and men in Cepic were "untethered to an evidentiary base".

Recent successful appeals where common sense credibility assessments have masked stereotypical assumptions and were used against an accused (as opposed to the more reported occurrence of being used against sexual assault complainants, such as R v Lacombe, 2019 ONCA 938 at paras. 46-55), include: R v J.L., 2018 ONCA 756 & R v Thompson, 2019 BCCA 1. A similar argument was not successful in R v Roberts, 2017 NWTCA 9.