Common Sense, Speculative Reasoning, and Judicial Notice: SCC Grants Leave in R v Kruk

Content Warning: This article includes details about an allegation of sexual assault that may evoke strong emotions.

In R v Kruk, 2022 BCCA 18 [Kruk], the British Columbia Court of Appeal (“BCCA”) noted that “[relying] on … life experience to assess the credibility of witnesses is a daily and appropriate exercise for trial judges” (Kruk, para 41). After all, judges are human beings. However, when does the use of human experience and common sense cross over into speculative reasoning that constitutes a legal error? This issue is especially prevalent in sexual assault trials, where judges often have to adjudicate “with little evidence beyond the conflicting testimony of the complainant and the accused” (Kruk, para 1). In Kruk, a case involving an allegation of sexual assault, the BCCA set aside the trial judge’s conviction of the accused and provided guidance on the line between the use of human experience and common sense and speculative reasoning. On July 28, 2022, the Supreme Court of Canada (“SCC”) granted the Crown’s leave to appeal.


Facts and Background

On May 27, 2017, the complainant attended a party in the afternoon, then went to a bar in Gastown, British Columbia. At 11:30 p.m., she left to meet friends at a different bar. At this time, the complainant was highly intoxicated; she became disoriented and lost and eventually stopped on a sidewalk, crying (Kruk, para 7).

Mr. Kruk, a 34-year-old man, saw the complainant crying on the sidewalk, then introduced himself to her and offered to get her home safely (Kruk, para 8). They took the train together to Coquitlam station (Kruk, para 9). After getting off the station, Mr. Kruk and the complainant took a taxi to Mr. Kruk’s home in Maple Ridge. Once the cab arrived at his home, Mr. Kruk exited the cab, paid the fare, and asked the driver to take the complainant to her own home (Kruk, para 10). However, about five or ten minutes later, the taxi driver returned the complainant to Mr. Kruk’s home due to her high level of intoxication (Kruk, para 11).

Inside Mr. Kruk’s home, the complainant either passed out or fell asleep in Mr. Kruk’s bedroom. In her testimony, she stated that when she woke up, her pants were off, and she found Mr. Kruk on top of her with his penis inside her vagina (Kruk, para 13). In his testimony, Mr. Kruk denied having sex with the complainant. According to Mr. Kruk, he gave the complainant a glass of water which she spilled on herself. He then gave her spare pyjamas to change into in his bedroom and subsequently found her passed out on his bed with her pants at her ankles. She awoke very startled after Mr. Kruk attempted several times to wake her up (Kruk, para 14).

Meanwhile, the complainant’s father was able to track down Mr. Kruk’s address and came to Mr. Kruk’s house with the complainant’s brother to pick up his daughter (Kruk, para 16). The complainant “told her brother words to the effect that Mr. Kruk had sexually assaulted her” (Kruk, para 17). Later that same morning, the complainant filed a police complaint and went to a hospital for a medical examination (Kruk, para 18). Mr. Kruk was eventually arrested and gave the police a voluntary statement in which he denied sexually assaulting the complainant (Kruk, para 19).


The Trial Judge’s Decision

At the Supreme Court of British Columbia (R v Kruk, 2020 BCSC 1480 [Kruk BCSC]), the trial judge stated that the live issue of this case was “whether or not the alleged conduct occurred” (Kruk BCSC, para 50). In other words, if the trial judge was “satisfied beyond a reasonable doubt that the accused inserted his penis into her vagina, all the essential elements of sexual assault [would be] established,” and he would have to acquit (Kruk BCSC, para 51). 

In his decision, the trial judge considered the key testimony given by each witness (Kruk, para 22). He found the complainant to be “an obviously unreliable witness because of her state of extreme intoxication” and that there were “massive gaps in her memory” (Kruk BCSC, para 48).

After assessing the evidence, the trial judge made a number of findings (Kruk, para 28). Significantly, on the complainant’s “core assertion” that the accused’s penis was inside her vagina when she woke up in his bedroom, the trial judge found that although the complainant’s evidence was “devoid of detail,” it was “extremely unlikely that a woman would be mistaken about that feeling” given that “her tactile sense was engaged” (Kruk BCSC, para 68). After considering this and other factors, the trial judge was satisfied beyond a reasonable doubt that the offence occurred and found Mr. Kruk guilty (Kruk BCSC, para 71).


The BCCA’s Decision

Mr. Kruk appealed the trial judge’s decision to the BCCA. One of Mr. Kruk’s submissions was that the trial judge “erred in taking judicial notice of a highly contentious fact” (Kruk, para 4). The BCCA noted “the privileged position of the trial judge to see and hear the witnesses in the court,” stating that their “credibility findings deserve particular deference.” However, the BCCA also noted that trial judges must “avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence” (Kruk, para 41). If a trial judge fails to do so, their reasons will disclose a reversible error of law.

In its decision, the BCCA explored two cases involving sexual assault where the respective appeal courts ruled that the trial judge engaged in speculative reasoning not grounded in evidence. One was R v Perkins, 2007 ONCA 585 [Perkins], where a contentious live issue was whether “the appellant was wearing a condom that came off during the sexual activity, as alleged by the appellant, or whether he was never wearing one at all” (Kruk, para 45). In deciding for the Crown, the trial judge in Perkins found that “a virile young man with a full erection bound on having a climax would not lose his erection [so that the condom would fall off]” and that the only reasonable interpretation was that “he did not have a condom at all” (Perkins, para 30). The Ontario Court of Appeal (“ONCA”) held that the trial judge improperly took judicial notice without relying on any evidence and the closing submissions of the parties (Perkins, paras 31 and 32). Courts can only take judicial notice of a fact “so well known as to be a notorious fact that could not be the subject of debate among reasonable persons” or “capable of immediate and accurate proof by resort to some readily accessible source of indisputable accuracy” (Perkins, para 41). For the ONCA, the unlikelihood of a healthy young man losing his erection during intercourse did not meet this standard.

Applying the applicable legal principles to the case at hand, the BCCA pointed out that the Crown never submitted at trial that the judge should accept the complainant’s testimony because it was “a matter of medical science or common sense” that it was improbable that a woman could be mistaken about the feeling of a penis inside her vagina (Kruk, para 66). Yet, the trial judge primarily accepted the complainant’s core assertion for that reason (Kruk, para 65). By doing so, the trial judge took improper judicial notice because he engaged in speculative reasoning, which led to a finding not sought by the parties and not grounded in the evidence (Kruk, paras 67 and 68). Based on this clear legal error, the BCCA allowed the appeal, set aside the conviction, and ordered a new trial.


Analysis & Future SCC Decision

In its decision, the BCCA appropriately set aside the trial judge’s conviction of Mr. Kruk based on the trial judge’s finding on the complainant’s core assertion. There were numerous reasons why the trial judge’s finding was problematic. First, the Crown had not sought the trial judge’s finding. The BCCA noted that “very little detail was elicited from the complainant in her direct examination regarding her core assertion” and that “the Crown made comparatively brief submissions concerning the reliability of the complainant’s testimony;” the Crown simply noted that “the complainant felt Mr. Kruk’s penis inside her” (Kruk, paras 55 and 58). 

Judges should not stray from making decisions based on their consideration of the parties’ submissions unless exceptional circumstances call for otherwise. We have an adversarial system where opposing sides present their case to an impartial court that makes its decision after considering arguments from both sides. If judges routinely make decisions based upon findings not sought by the parties, they will fail to provide an unbiased adjudicative process and will be stepping outside the scope of their power. Judges hold significant influence over the parties involved in the proceedings; this is especially true in criminal proceedings where a person’s liberty may be at stake. Judges need to respect this power and ensure a fair legal process by confining themselves to the cases presented by the parties as a general principle. Our adversarial system is not perfect by any means; that can be especially evident in sexual assault trials, where the criminal justice system can be so unwelcoming for complainants for numerous reasons. Nevertheless, judges should not make their decisions in the way the trial judge did in Kruk.

The trial judge’s finding on the complainant’s core assertion was also troubling because it had no evidentiary ground. Trial judges cannot make findings not grounded in the evidence offered by the parties unless the finding is the proper subject of judicial notice. Here, as the trial judge’s finding on the complainant’s core assertion was not grounded in any medical or other expert evidence introduced by the parties, he presented his finding as a fact under judicial notice. Given the complicated nature of the topic, it was inappropriate for the trial judge to take judicial notice of his finding simply on the basis that the complainant’s “tactile sense was engaged” (Kruk BCSC, para 68). The BCCA noted that the finding “[engaged] 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)” (Kruk, para 67). The finding was not a matter of “common sense” that was “so well-known as to be notorious” and “capable of immediate and accurate proof by resort to a readily accessible source of indisputable accuracy” (Kruk, para 69). In other words, there was a certain threshold that the trial judge failed to meet in order to take judicial notice. 

In setting aside the conviction, the BCCA agreed with the Crown that “there was a body of evidence on which the judge could convict” (Kruk, para 61). This means that if the trial judge had properly relied on the evidence to make his findings, the trial judge could have found Mr. Kruk guilty without committing any reversible errors. However, because the trial judge made a clear legal error, the BCCA correctly set aside the conviction and ordered a new trial. When the case comes before the SCC, it should uphold the decision of BCCA and set a precedent which calls for judges to avoid speculative reasoning not grounded in evidence or the parties’ submissions and to use the tool of judicial notice only when warranted.

Joey Jang

Joey Jang is a third-year JD student at Osgoode Hall Law School. He previously completed a Bachelor of Music at the University of Toronto. At Osgoode, Joey has volunteered for Law in Action Within Schools (LAWS) as a tutor and mentor to high school students facing barriers to success. He is currently an executive team member of Mock Trial, Osgoode’s annual student-run variety show. Joey has worked at two Legal Aid Ontario legal clinics, including as a caseworker at Parkdale Community Legal Services in the Housing Rights division. Joey’s legal interests include contract law, administrative law, civil litigation, and poverty law. Outside of law, Joey is active as a part-time professional musician.

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