Crown Counsel's Cultural Stereotyping Leads to New Trial
Another Canlii Connects case summary. This time we review R. v. B.G., 2022 ONCA 92 where the Ontario Court of Appeal addressed the scope of cross-examination and submissions touching on cultural practices.
Issue: Did Crown Counsel invite the jury to rely on impermissible racial or cultural stereotyping through their cross-examination and in submissions?
Facts: B.G. was convicted by a jury of sexual assault, sexual interference, invitation to sexual touching, and uttering threats. The complainant was his daughter. The alleged offences were said to have occurred many years prior to the charges being laid. B.G. testified and denied the allegations.
B.G. and his wife immigrated from India. The complainant testified to a traditional Indian upbringing with various restrictions relating to her social activities, style of dress and hair cuts.
The defence argued, the complainant attributed all of her difficulties in life – an early and unhappy marriage, early parenthood, drug addiction, poor health, financial problems – to the strictness of her parents, and particularly her father, who provoked her adolescent rebellion and pressured her to get married as a culturally appropriate resolution of the scandal of having run away with her boyfriend. The defence argued that the complainant fabricated the allegations against her father as revenge for the degree of control he had exercised over her life as she was growing up – including his role in pressing her to get married – and the suffering she believed resulted from it.
Through cross-examination of the accused and other defence witnesses the Crown advanced three propositions related to the defence witnesses’ culture:
(1) the witnesses’ culture – and specifically the concept of honour within their culture – provided them with a motive to lie;
(2) one aspect of the witnesses’ culture is that the women of a household are dominated by the men and will do what they are told, and
(3) the witnesses’ culture permits lying under oath.
The jury was not cautioned in relation to the arguments advanced by Crown Counsel.
Ruling: The Court allowed the appeal, set aside the conviction and ordered a new trial.
The questioning and submissions of the Crown were found to have created a risk of the jury engaging in an impermissible pattern of reasoning. The court ruled that there was a real danger that the jury would accept the stereotypes in place of properly assessing the evidence, and that this harmed the credibility of the defence witnesses in the jurors’ minds, while bolstering the credibility of the complainant.
In the result the Court explained:
The Crown was entitled to pursue the theory that the defence witnesses were lying to protect the appellant. Similarly, the Crown was entitled to put to the witnesses that they lacked agency, believed it was permissible to lie to protect family honour, and were in fact lying at the direction of male relatives. But where questioning is so heavily freighted with negative cultural stereotyping – stereotyping that may subconsciously resonate with the jurors even though the questions turned up empty – the questioning itself creates a risk that without some instruction from the trial judge, a jury will seize on the stereotype even though it is not established in evidence. In this case, where the Crown effectively invited the jury to conclude the witnesses were lying because their religion and culture either demanded it or excused it, there was a risk that the jury would leap from the fact that the witnesses were Indian women living in households governed by traditional Indian norms to the conclusion they were therefore less likely to be truthful witnesses. In particular, the jury ought to have been expressly instructed not to reason from the facts that the witnesses were members of “traditional” Indian households that value family honour, and that several of the witnesses had been married in accordance with Indian custom, to the stereotype that Indian women are culturally conditioned to submit to the domination of men, tolerate physical and sexual abuse by the family patriarch, and lie about it under oath to protect family honour.