- Hearsay
- Posts
- Human experience
Human experience
SCC tells us what happens when trial judges assume. Plus the doctor disciplined for his masking views and a father's fight against medical assistance in dying.
Dylan Gibbs
March 13, 2024
Justice Minister Arif Virani getting into a social media spat with Elon Musk and Margaret Atwood wasn’t on my 2024 bingo card. But I guess that’s what it takes to defend the new online harms legislation. Virani clapped back after Atwood suggested Canada is policing “thoughtcrime” and Musk called life sentences for hate speech “insane”.
— Dylan Gibbs
TODAY'S DOCKET | 6 min read |
What happens when trial judges assume?
Cases of interest, like the doctor disciplined for his masking views
A father’s fight against medical assistance in dying
Meat rules on both sides of the border
CRIMINAL LAW
Common sense prevails at the SCC
Appellate courts need to stop messing with credibility findings after criminal trials. Last week the Supreme Court confirmed that — as attractive as it might sound — there’s no legal rule against “ungrounded common sense assumptions”.
How we got here: A recent line of cases decided that trial judges can’t use generalizations about human behaviour to assess credibility — if they do, it’s a legal error that appellate courts will overturn on appeal. This is how the Ontario Court of Appeal put it:
[J]udges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice.
Some courts said that convicting an accused based on generalizations is just as bad as discrediting a sexual assault complainant based on myths and stereotypes. So, without finding any palpable and overriding errors, appellate courts overturned trial judges for making statements like:
It makes no sense that a healthy young powerlifter, who wasn’t drunk, would fall asleep after kissing the complainant for an entire cab ride.
“I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity.”
And, in Mr. Kruk’s case, “It is extremely unlikely that a woman would be mistaken about [the feeling of penile penetration].”
But according to the Supreme Court: There’s no general rule against “ungrounded common sense assumptions”. Some generalizations do raise a legal error — like relying on myths and stereotypes to discredit a sexual assault complainant or making assumptions that undermine an accused’s right to silence. But appellate courts generally need to let trial judges use their common sense.
Where a person with a vagina testifies credibly and with certainty that they felt penile‑vaginal penetration, a trial judge must be entitled to conclude that they are unlikely to be mistaken.
That doesn’t give trial judges carte blanche to make whacky generalizations. Generalizations that are palpably wrong and have an overriding impact on the outcome of a case won’t stand.
[C]ommon sense is far from a catch-all phrase that licenses any form of reasoning, no matter how faulty. Common sense is not always “common”, does not always make “sense”, and worst of all, may be based on falsehoods or discriminatory beliefs.
Going with the flow: Justice Rowe wrote slightly different concurring reasons. My favourite part is his flow chart. As you might have guessed, I’m a big fan of simple and innovative approaches to explaining the law. Something about the wording in this flow chart makes my brain hurt, but kudos to Justice Rowe for trying something different.
SNIPPETS
Recent cases of interest
😷 An appeal board said Ontario’s College of Physicians and Surgeons reasonably disciplined a doctor who told a patient that masks don’t stop the spread of COVID-19. The appeal board suggested that the disciplinary arm of the College can determine which “officially authorized narrative[s]” doctors are not allowed to question.
As stipulated in the [College’s] policies, due to their unique position of public trust, physicians are required to ensure that scientific claims made to patients are based on verifiable, available evidence.
🛠️ British Columbia’s Court of Appeal said that you can sue someone for filing an exaggerated lien claim. According to the Court, the conduct falls under the tort of abuse of process.
[T]he critical question in this case [is] whether the fact that a claim of lien is intentionally exaggerated or based upon false or misleading evidence is sufficient to support an abuse of process claim, without more.
In my opinion, [this case] amounted to an abuse of process. The Contractor improperly employed the legal process to secure funds to which it knew or ought to have known it was not entitled.
🧑💻 According to Ontario’s Superior Court of Justice, a man who secretly accessed online accounts to use his wife’s communications against her during family law proceedings committed the tort of intrusion upon seclusion.
The surreptitious obtaining of a spouse’s private communications by the adverse spouse, with a view to using those private communications [in] family law proceedings, is not to be sanctioned…
HEARSAY ROUNDUP
Canadiana
💡 Looking for programming and perks tailored to in-house lawyers? Check out Counselwell. Here’s a message from the founder about why it’s a great time to join the community:
We're close to 200 members and will be giving away an undisclosed prize to the 200th member. Undisclosed, because I haven't yet determined an appropriate prize. Apply today and you just might be member #200!
🏥 A father wants to stop his daughter from resorting to medical assistance in dying. Justice Feasby of the Alberta Court of King’s Bench reserved his decision on whether the father (and the Court) can intervene. In a similar case, the Nova Scotia Court of Appeal said courts don’t have the institutional capacity to review MAiD eligibility assessments.
👕 US investment firm Browning West is in a shareholder dispute with Quebec-based Gildan Activewear. The dispute has been brewing since late last year, when Gildan fired its CEO. Browning West is now pushing to overhaul the company’s board of directors and reinstate the ousted CEO. The firm just sued Gildan in Quebec to ensure the company holds its annual meeting in May, as planned.
🐄 Jewish groups are suing the federal government over recent changes to food processing rules. The groups say the new rules violate freedom of religion by effectively putting an end to kosher slaughter.
Beyond the border
🥩 In other meat rule news, changes in the US might hurt Canadian farm exports. Currently, sellers can claim that meat is “Made in the USA” or a “Product of the USA” even if the meat comes from animals born and raised in Canada. Starting in 2026, companies can only refer to meat as a US product if the animals are born, raised, slaughtered, and processed in the US.
 | That’s all for today. You can also find me on LinkedIn and X/Twitter @DylanJGibbs. If someone sent you this email, subscribe here. |
SHARE HEARSAY
Don’t keep us a secret. Get your friends to sign up and you’ll be rewarded. You can find your custom referral link in the email version of Hearsay.
