R. v. A.R.J.D.

:
IT’S TIME TO MOVE BEYOND STEREOTYPES-BOUND
ADVOCACY AND DECISION-MAKING

Anna S.P. Wong*

Resorting to stereotypes in the courtroom is like eating the

forbidden fruit in the Garden of Eden. It is a thou-shalt-not, an error
of law. Stereotyping invites witness assessments and decision-
making based on preconceived beliefs rather than open-minded
inquiry, risking miscarriage of justice.
Still, the temptation to rely on stereotypes looms in the
courtroom, waiting to take hold. And take hold it did in the recent
case of R. v. A.R.J.D.,1 involving a man on trial for sexually
assaulting his stepdaughter.

R. v. A.R.J.D.
As with many sexual assault trials, there were only two witnesses:
the complainant and the accused. They were the only ones present
when the incidents took place. There was no evidence other than
their conflicting stories, and so the trial came down to a he-said, she-
said credibility contest.
The complainant was 17 at the time of trial. She testified that the
accused sexually fondled her approximately 50 times when she was
between 11 and 16 years old; on one occasion, he simulated sex until
he ejaculated.
The accused took the stand and did what was expected: he denied
everything. Because of his denial, and the presumption of innocence,
it fell on the complainant to prove that he was guilty by proving
herself, and in turn her evidence, credible. She was effectively placed
on trial, her character and behaviour scrutinized under a magnifying
glass.
In a bid to secure an acquittal for his client, defence counsel went
on the attack by exploiting rape myths and stereotypes. The
* Anna S.P. Wong practises civil litigation as a partner with Landy Marr Kats
LLP in Toronto. In the spare time that she manages to wrestle out of her
days, Anna enjoys mulling over legal issues that are beyond where her
practice normally takes her.
1. (23 February 2016), Edmonton 140876020Q1 (Alta. Q.B.), reversed 2017
ABCA 237, 422 D.L.R. (4th) 471, 353 C.C.C. (3d) 1 (Alta. C.A.), affirmed R.
v. A.R.J.D., 2018 SCC 6, 422 D.L.R. (4th) 469, 43 C.R. (7th) 207 (S.C.C.).

222
2019] Stereotypes-Bound Advocacy and Decision-Making 223

defence’s theory of the case pivoted on stereotypical assumptions of

how a victim of sexual abuse ought to behave. A “real” victim is
expected to struggle and resist, show visible upset, make a timely
complaint, and avoid her assailant afterwards out of fear. To the
extent that the complainant did not exhibit these expected
behaviours, the theory goes, she was not a “real” victim, and what
happened could not have been sexual assault.
During cross-examination of the complainant, defence counsel
played on stereotypical norms about sexual assault to impeach her
credibility and paint her as a liar:
Q: Did it happen when people were in the home?
A: Sometimes.
Q: Did you ask and scream for any help or anything?
A: No.
Q: Why not?
A: Because I didn’t really want anyone to know about it.
Q: How come you didn’t talk to your teachers about this?
A: It’s not something teachers needed to know.
Q: Now, after these incidents started happening, did [the accused] ever
drive you to school?
A: Sometimes, yeah.
Q: So you weren’t uncomfortable being with him?
A: No.
Q: Did you have nightmares?
A: No.
Q: Bed-wetting?
A: No.
Q: I’m going to suggest to you none of this happened at all –
A: Pardon –
Q: – and you made it all up.
A: Pardon me?
Q: I’m going to suggest to you that none of this happened at all and
you’ve made it all up.
A: Why?
Q: That’s not the proper response. Did you make it up or not?
A: No.
The stereotypes-infused line of questioning continued, in what
must have been a harrowing and humiliating experience for the
complainant, whose voice faded to a whisper at one point:
Q: And at no time you thought about asking – telling anyone in your
house, when [the accused] was touching you there were people
there, you didn’t yell out “Stop,” or anything else like that?
A: I thought about it.
Q: But you didn’t do it?
224 The Advocates’ Quarterly [Vol. 49

A: No.
Q: Why not?
A: Because I didn’t want anyone to find out.
Q: Pardon? I can’t hear you, what you said at the end.
A: I didn’t want anyone to find out.
Q: But you eventually went to the police?
A: Yes.
Q: So eventually you did want somebody to find out . . .2
In closing submissions, defence counsel touted his theory of the
case. He urged the trial judge to evaluate the complainant’s
behaviour against rape stereotypes and conclude that she could
not possibly have been sexually assaulted, since she had not reacted
according to how a rational and “real” victim was expected to react
in a sexual assault situation.
And Finally, Sir, based on the evidence which the Court – if the Court
accepts it, puts the whole situation into reasonable doubt would be that
[the complainant], Sir, has indicated that in school she had a course
that touched upon what you should do when situations like this arose.
She did nothing. She did nothing when these happened with people in
the house, Sir. These are her relatives. She easily could have asked for
help. There was no time did she say that she withdrew herself from [the
accused]. She used to go places with him. There were no questions of
her being afraid to be with him or anything else like that. Given all that,
Sir, it would be my submission the situation itself would lead the Court
to possibly say there is enough reasonable doubt. [Emphasis added.]
After a brief recess, the trial judge gave his oral reasons, acquitting
the accused. He began with self-instructions that purportedly
distanced himself from myths about “real” victims of sexual assault:
I do not discount the complainant’s credibility because she delayed com-
plaint or because she did not cry out or search out help from her mother
or other family members. To judge her credibility against those myths of
appropriate behaviour is not helpful. The supposed expected behaviour
of the usual victim tells me nothing about this particular victim.
Yet the trial judge proceeded to rely on them anyway, rejecting the
complainant’s account because she deviated too far from what is
assumed to be appropriate responses for a “real” victim. His
2. Although there was no objection by the Crown and the trial judge did not
intervene, defence counsel should not have asked questions about whether
the complainant thought about raising a hue and cry, as her state of mind on
the issue was of no relevance. He also should not have made the remark that
he made at the end, which was clearly editorial and out of line: see R. v.
Bouhsass (2002), 169 C.C.C. (3d) 444, 62 O.R. (3d) 103, 165 O.A.C. 247
(Ont. C.A.) at para. 12.
2019] Stereotypes-Bound Advocacy and Decision-Making 225

assessment of her credibility was coloured by stereotypes. In a thinly

veiled manner, he faulted her for her months-long delay in
disclosure. Compounding the delay in complaint, her failure to
conform to his expectations that a “real” victim would have shown
outward changes in behaviour after being assaulted, like avoiding
her abuser, left him doubting her veracity. The trial judge reasoned:
[G]iven the length of time that these events occurred over, and the fact
that the most serious event occurred months before [the complainant]
complained, I would have expected some evidence of avoidance either
conscious or subconscious. There was no such evidence. As a matter of
logic and common sense, one would expect that a victim of sexual abuse
would demonstrate behaviours consistent with that abuse or at least some
change of behaviour such as avoiding the perpetrator.
All told, stereotypes regarding sexual assault pervaded the trial,
and ultimately led to the verdict being overturned by the Alberta
Court of Appeal in a 2-1 decision.3 On appeal to the Supreme Court
of Canada, Chief Justice Wagner affirmed the majority’s decision,
hammering home the point that judicial stereotyping is
impermissible.4
To truly appreciate why reliance on stereotypes is impermissible in
the courtroom, we need to understand how stereotypes work.

What’s Wrong with Using Stereotypes?

Stereotypes are not intrinsically bad. At the most basic level,
stereotypes are generalizations about groups of people, which can be
positive (for example, thin people are fit) or negative (fat people are
lazy). They help us make sense of our complex world, simplify our
decision-making, and guide our social interactions. As Pulitzer
Prize-winning journalist Walter Lippmann explained:
There is economy in this. For the attempt to see all things freshly and in
detail, rather than as types and generalities, is exhausting, and among
busy affairs practically out of the question . . . Instead we notice a trait
which marks a well known type, and fill in the rest of the picture by
means of the stereotypes we carry about in our heads.5
Stereotypes, in short, enable cognitive shortcuts, conserving mental
effort and time.6

3. 2017 ABCA 237, 422 D.L.R. (4th) 471, 353 C.C.C. (3d) 1 (Alta. C.A.).
4. R. v. A.R.J.D., 2018 SCC 6, 422 D.L.R. (4th) 469, 43 C.R. (7th) 207 (S.C.C.).
5. Walter Lippmann, Public Opinion (1922), reprint (New York: Free Press,
1965) at 59.
6. Susan T. Fiske and Shelley E. Taylor, Social Cognition, 2nd ed. (New York:
226 The Advocates’ Quarterly [Vol. 49

In enabling cognitive shortcuts, stereotypes endorse hasty judg-

ments, and that is where the trouble lies. Stereotypes can seduce us
into thinking that they have more predictive value than they actually
do, obscuring the need for more careful investigation and analysis.
This is especially true when our incentive for accuracy is wanting
because of time-of-day effects (morning people, who hit their func-
tional peak earlier in the day, are more likely to rely on stereotypes in
judgmental tasks in the afternoon; vice versa for evening people),
lack of personal involvement, and distraction.7 We end up, in the
words of Justice Bridget Mary McCormack and Professor Len
Niehoff, “settling for lazy and undisciplined guesswork when we
could find substantially more reliable predictors if we put some effort
into finding the relevant data”.8
When we judge people by stereotypes, we fall prey to the
paradoxical assumption that individuals can be understood by
disregarding their individuality. Group generalizations can over-
simplify differences in people, and they do not always ring true. Even
when they do contain a kernel of truth, they might not be reliable for
making predictions about an individual member of the group.
Norma illustrates the point. She was a model created by renowned
physician-sculptor Robert Latou Dickinson in the 1940s based on
measurements taken of 18,000 women from all over of the United
States and from various walks of life. Carved out of white alabaster,
with Anglo-Saxon facial features, Norma was a youthful white
woman – the stereotype of the all-American, post-War girl.9 In 1945,
the Cleveland Health Museum held a look-alike contest headlined
“Are you Norma, Typical Woman?” to find the woman in Ohio
whose body most resembled Norma’s. Close to 4,000 women sent in
their measurements. If Norma embodied the stereotypical American
female, then most contestants’ measurements should be similar to
hers. That was far from reality. Merely one percent of the contestants
were like Norma on five of nine body dimensions, and no one
matched her on all dimensions.10
McGraw-Hill Book Company, 1991) at 13; Perry Hinton, Stereotypes,
Cognition and Culture (New York: Psychology Press, 2000) at 66-67.
7. Galen V. Bodenhausen, “Stereotypes as Judgmental Heuristics: Evidence of
Circadian Variations in Discrimination” (1990), 1:5 Psychological Science at
319.
8. Hon. Bridget Mary McCormack and Len Niehoff, “When Stereotypes
Attack” (Summer 2015), 4:4 Litigation 28 at 28.
9. What is deemed to be typical oftentimes coincides with the stereotypical, and
in the case of Norma, it certainly did.
10. See the discussion of Norma in Peter Cryle and Elizabeth Stephens, Normal-
ity: A Critical Genealogy (Chicago: University of Chicago Press, 2017) at
2019] Stereotypes-Bound Advocacy and Decision-Making 227

Stereotypes, operating like self-fulfilling prophecies, can close our

minds to new perspectives and important information. Given the
human tendency to seek out information that supports pre-existing
beliefs,11 when we believe that a stereotype is accurate, we will search
for and favour information that confirms the stereotype, and ignore
information that contradicts it. If an individual does not appear or
behave as expected according to the stereotypes by which she is
judged, then she is likely to be misjudged, or discounted as a fake.
Take the stereotype of surgeons as Dr. Oz-looking, middle-aged
white men. Someone who subscribes to this stereotype may quickly
pass over a young black woman in scrubs at the hospital,
misconstruing her as a nurse despite the badge she is wearing that
says “surgeon”.
Given that stereotypes can impede open-minded assessment, they
can get in the way of a fair trial and the delivery of justice. A fair trial
is “one that is based on the law, the outcome of which is determined
by the evidence, free of bias, real or apprehended”.12 Integral to a fair
trial is an arbiter who is impartial. Impartiality, which has been
described as “the core attribute of the judiciary”13 and “a cardinal
virtue of a judge”,14 is inextricably linked to open-mindedness: “The
essence of impartiality lies in the requirement of the judge to
approach the case to be adjudicated with an open mind.”15 For all
the trappings of stereotyping discussed above, impartiality is
compromised when judges resort to stereotypes in assessing
witness credibility and interpreting evidence. Justice L’Heureux-
Dubé put it crisply: “judging based on myths and stereotypes is
entirely incompatible with keeping an open mind.”16
320-23; and Todd Rose, The End of Average: How We Succeed in a World
That Values Sameness (Toronto: HarperCollins Publishers Ltd., 2016) at 5-6.
11. This tendency is what psychologists refer to as “confirmation bias”.
12. R. v. S. (R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, 118 C.C.C. (3d)
353 (S.C.C.) at para. 3.
13. Canadian Judicial Council, Ethical Principles for Judges (Ottawa: Canadian
Judicial Council, 1998) at 30: https://www.cjc-ccm.gc.ca/cmslib/general/
news_pub_judicialconduct_Principles_en.pdf.
14. Jeremy Webber, “The Limits to Judges’ Free Speech: A Comment on the
Report of the Committee of Investigation into the Conduct of the Hon. Mr.
Justice Berger” (1984), 29 McGill L.J. 369 at 389, quoted with approval in
Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory
(Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, 383 D.L.R. (4th) 579
(S.C.C.) at para. 23 (Yukon).
15. Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, 231
D.L.R. (4th) 1 (S.C.C.) at para. 58. See also Yukon, supra.
16. Claire L’Heureux-Dubé, “Beyond the Myths: Equality, Impartiality and
Justice” (2001), 10:1 Journal of Social Distress and the Homeless 87 at 92.
228 The Advocates’ Quarterly [Vol. 49

It is no surprise then that our legislators and courts have time and
again affirmed that stereotypes have no place in the courtroom. The
introduction of rape shield legislation in 1992, meant to stave off the
twin myths that sexually active women are less trustworthy and
consent indiscriminately to sex,17 is a nod to the realization that
stereotypes can taint perceptions and ultimately, legal outcomes.
Over the course of the last three decades, many other rape myths
have been judicially discredited as irrelevant, discriminatory and
harmful, including the following:
. women mean “yes” even when they say “no”;18
. women who dress provocatively or flirt are at least
partially responsible for being raped;19
. women fantasize about rape;20
. women cannot be raped against their will;21
. only “bad girls” are raped;22
. rapes are committed by strangers, not spouses or people
known to the complainant;23
. delayed reporting of rape is reason to doubt the
complainant;24
. women who are not of respectable character or who are on
social assistance are more likely to have consented to sex
with the accused.25
When any of these myths creep into a judicial decision, it can result
in an error of law, warranting a new trial. Cross-examination tactics
17. Criminal Code, R.S.C. 1985, c. C-46, s. 276.
18. R. v. Ewanchuk, [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193, 131 C.C.C. (3d)
481 (S.C.C.) at para. 82 (Ewanchuk).
19. Supra.
20. R. v. Seaboyer, [1991] 2 S.C.R. 577, 83 D.L.R. (4th) 193, 66 C.C.C. (3d) 321
(S.C.C.) at para. 141 (Seaboyer).
21. R. v. Osolin, [1993] 4 S.C.R. 595, 109 D.L.R. (4th) 478, 86 C.C.C. (3d) 481
(S.C.C.) (Osolin).
22. Supra.
23. Seaboyer, supra, footnote 20 at para. 141, and the 1983 amendments to the
Criminal Code (C-127), An Act to amend the Criminal Code in relation to
sexual offences and other offences against the person and to amend certain
other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c.
125. The amendments, among other things, repealed the spousal exemption,
making it possible for a husband to be charged with rape of his wife, and
replaced the word “rape” with “sexual assault” to avoid the moral stigma
connected to the word “rape”.
24. R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, 191 D.L.R. (4th) 60 (S.C.C.)
at para. 63; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, 214 D.L.R. (4th)
215 (S.C.C.) at paras. 172-173 (Shearing).
25. Osolin, supra, footnote 21; Seaboyer, supra, footnote 20.
2019] Stereotypes-Bound Advocacy and Decision-Making 229

that exploit stereotypes are also forbidden. As former Chief Justice

McLachlin instructed in R. v. Mills: “The accused is not permitted to
‘whack the complainant’ through the use of stereotypes regarding
victims of sexual assaults.”26 While sexual assault cases have been
particularly prone to the infiltration of stereotypes, the prohibition
on their use extends beyond the sexual assault context. Take, for
instance, R. v. S. (R.D.),27 which grappled with the stereotyping of
police officers, and R. v. W. (R.),28 which dealt with stereotypes
relating to the inherent unreliability of children’s evidence.
Civil proceedings are not in the least immune from the pervasion
of stereotypes. Consider the jury selection process, thought to be a
pivotal part of jury trials where cases are won or lost.29 Generation
after generation of civil litigators have been schooled to rely on
stereotypes in assessing potential jurors, in pursuit of a jury
favourable to one’s client. Jury selection manuals and folklore
have preached stereotyping jurors and weighing their suitability on
the basis of gender, race, age, occupation, marital status, and even
physical characteristics.30 For example, plaintiff lawyers should
weed out women, especially housewives, if the damages sought are
significant, since they are not used to thinking in substantial sums.31
They should also avoid professionals whose work requires precision,
such as bankers and accountants.32 Civil defence counsel, for their

26. R. v. Mills, [1999] 3 S.C.R. 668, 180 D.L.R. (4th) 1, 139 C.C.C. (3d) 321
(S.C.C.) at para. 90. See also Shearing, supra, footnote 24 at para. 76; Osolin,
supra, footnote 21 at 669, wherein Justice Cory stated, “A complainant
should not be unduly harassed and pilloried to the extent of becoming a
victim of an insensitive judicial system.”
27. [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353 (S.C.C.).
28. [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134, 13 C.R. (4th) 257 (S.C.C.),
reconsideration/rehearing refused (Nov. 18, 1992), Doc. 21820 (S.C.C.).
29. Margaret Bull Kovera and Brian L. Cutler, Jury Selection (New York:
Oxford University Press, 2013) at 3.
30. While most jury selection guides and studies are American sources, there is
no reason to believe that Canada takes exception to the practice of juror
stereotyping. Indeed, anecdotal evidence suggests that the practice is very
much alive here. Toronto lawyer Adam Goodman wrote in a blog detailing
his involvement in a jury selection process: “we had very little information to
go with. For a profession that prides itself on thoughtful decisions not based
on stereotype, the jury selection process is quite instinctual and somewhat
stereotypical”: http://aglaw.ca/clemens-jury-selection.
31. Solomon M. Fulero and Steven D. Penrod, “The Myths and Realities of
Attorney Jury Selection Folklore and Scientific Jury Selection: What
Works?” (1990), 17 Ohio N.U.L. Rev. 229 at 232-33. See also Gilda
Mariani, “Peremptory Challenge – Divining Rod for a Sympathetic Jury?”
(1975), 21 Cath. Law. 56.
32. Fulero and Penrod, supra, at 231.
230 The Advocates’ Quarterly [Vol. 49

part, should seek female jurors unless the defendant is an attractive

woman, lest they be jealous of her beauty. Poor people, unaccus-
tomed to large amounts of money, are good for civil defendants.33
Underpinning these jury selection techniques are stereotypical
assumptions of how an individual would think and behave by
virtue of the social categories to which he/she belongs.
Like their criminal counterparts, civil litigators too weave
stereotypes into their case theories, and consequently, their
examinations, openings and closings. The use of stereotypes tends
to be more subtle in civil cases than criminal ones, or otherwise less
likely to draw attention and become the subject of appeal. Be that as
it may, sometimes it does taint trial fairness to such a degree that the
verdict is overturned on appeal. Such was the case in the personal
injury trial of Abdallah v. Snopek.34 The plaintiff there was an
immigrant, an irrelevant fact that defence counsel spotlighted and
stereotyped in his jury address:
Mr. Abdallah also talked about how much he loves Canada. Let’s just
review what he’s done since he’s been in Canada.
He came to Canada, he got a job that he worked for five months and then
quit. Then he made an EI claim. Six months later he was in an accident
and made an accident benefits claim. He then goes on to work a total of
three weeks over the next almost five years.
He goes back to the Middle East twice for a total of 20 months and he
moves his entire family back there. And now he’s here asking for money
from my client. Sure, he loves Canada. Why not? What’s not to love?
We’re all immigrants or our forefathers are immigrants, but Canada
wasn’t built that way. It was built by hard working people who don’t
drop out of the workforce for five years because of a fender bender.
Canada wasn’t built by people who try to take advantage of a car
accident to write their ticket.
.....
Ask yourself what you think will happen if you order my client to pay
him money. Do you think he will take that money and sit around the
house for the next five years and use it for medical treatment, or do you
suspect he may find the energy and back strength to start his own
business, perhaps not even in this country? Which do you think is more
likely to happen?
Ladies and gentlemen, this car accident should not be an opportunity for
Mr. Abdallah to get a leg up on everyone else who comes to this country
trying to start a new life.
33. Fulero and Penrod, supra, at 236.
34. (2008), 290 D.L.R. (4th) 234, 63 C.C.L.I. (4th) 266, 89 O.R. (3d) 771 (Ont.
Div. Ct.).
2019] Stereotypes-Bound Advocacy and Decision-Making 231

Defence counsel was in effect urging jurors to judge the specific

plaintiff in the case based on invidious stereotypes of immigrants,
rather than on a rational, evidence-based analysis of whether he
sustained any injury in the accident. It worked: the jury disbelieved
the plaintiff, returning a verdict that he was not injured and his
damages were zero.35 But it worked only for so long, for the verdict
was later set aside. In ordering a new trial, the Divisional Court
plainly frowned on the improper enlisting of stereotypes:
By drawing a distinction between the kind of immigrants who built
this country and the kind of immigrants who take advantage of a car
accident to “write their ticket”, defence counsel was playing on a
negative stereotype of the immigrant as a leech on our system and
seeking to have the jury place the plaintiff within that stereotype. That is
the very essence of an inflammatory and improper jury address.36

Beyond Stereotype-Bound Advocacy and Decision-Making

Despite legislative directives and judicial reminders to eschew the
snare of myths and stereotypes, as R. v. A.R.J.D. attests, lawyers and
judges continue to succumb to stereotypical reasoning. It is not
difficult to see why the temptation looms. The human brain is
naturally inclined to reach for quick and easy solutions, which
stereotyping enables, despite the significant risk of error associated
with sweeping the individual into the general. This is especially so
when we are pressed for time and mental energy, as many judges and
lawyers are.
Nevertheless, the mistakes that transpired in R. v. A.R.J.D. are
not fated for repetition. Stereotyping may be hard to resist, but it is
by no means impossible. Here is a three-prong approach to breaking
away from stereotypes-bound advocacy and decision-making.

1. Ethical Lawyering
Resort to stereotypes may be that much easier to resist when
lawyers understand and accept that they are professionally and
ethically obliged to resist it.
Lawyers have a special responsibility to not discriminate, as well
as a positive duty to endeavour to improve the administration of
justice. Such responsibilities come with membership in the legal
35. The jury’s verdict flew in the face of the trial judge’s findings on the defence’s
threshold motion, heard while the jury was deliberating, that the plaintiff’s
evidence was credible and a substantial damages award was merited.
36. Supra, footnote 34 at para. 32.
232 The Advocates’ Quarterly [Vol. 49

profession, and are greater than those of private citizens. They are
codified in every province’s and territory’s code of professional
conduct. Take for example Rules 6.3.1-1 and 5.6-1 of the Law
Society of Ontario’s Rules of Professional Conduct, which provide:
6.3.1-1 A lawyer has a special responsibility to respect the require-
ments of human rights laws in force in Ontario and, specifically, to
honour the obligation not to discriminate on the grounds of race,
ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex,
sexual orientation, gender identity, gender expression, age, record of
offences (as defined in the Ontario Human Rights Code), marital status,
family status, or disability with respect to professional employment of
other lawyers, articled students, or any other person or in professional
dealings with other licensees or any other person.
5.6-1 A lawyer shall encourage public respect for and try to improve
the administration of justice.37
The obligation to not discriminate is complemented by the duty to
act with integrity, which is enshrined in Rule 2.1-1. Integrity, as the
commentary to the rule explains, entails protecting the dignity of
individuals:
A lawyer has special responsibilities by virtue of the privileges
afforded the legal profession and the important role it plays in a free and
democratic society and in the administration of justice, including a
special responsibility to recognize the diversity of the Ontario commu-
nity, to protect the dignity of individuals, and to respect human rights
laws in force in Ontario.
Defence counsel assailing complainants with aggressive cross-
examinations that exploit rape myths and stereotypes (such as asking
questions about their past sexual experiences and provocativeness of
attire in an effort to character-assassinate and victim-blame) leads to
their re-victimization, which is wholly antithetical to protecting their
dignity. Such affront to human dignity should not be happening,
least of all in the sanctity of courtrooms, but it does. One
complainant found the cross-examination to which she was
subjected to be “long, repetitive, bullying and painful”.38 Another,
observed the trial judge, “wilted after three days of cross-
examination, much of it convoluted and confusing”.39

37. See also Rules 6.3-5 and 5.6-1 of the Federation of Law Societies of Canada’s
Model Code of Professional Conduct. Every provision in the Model Code has
a corresponding provision in each provincial or territorial code.
38. R. v. L. (G.), 2014 ONSC 3403, 114 W.C.B. (2d) 108, 2014 CarswellOnt 8026
(Ont. S.C.J.) at para. 22.
2019] Stereotypes-Bound Advocacy and Decision-Making 233

To the skeptics who clamour “zealous advocacy” as if it were a

trump card, it is important to remember that the duty of zealous
advocacy exists in concert with other professional obligations,
including the duties to not discriminate, to protect the dignity of
individuals (not just of one’s client), and to improve the adminis-
tration of justice. Particularly in light of these contemporaneous
obligations, zealous representation does not give lawyers permission
to employ stereotypes that have been judicially discredited as
irrelevant and discriminatory. When lawyers choose to not resort to
stereotypes, the choice they are making is not between stereotyping
and weak advocacy. Rather, the choice is “between stereotyping and
data; between stereotyping and science; between stereotyping and
superior ways of thinking carefully, critically, and deeply about the
complex and messy thing we call human behavior”.40
When lawyers stop peddling stereotypes, judges are less likely
going to go down the path of using them to fill in gaps in the evidence
and make factual inferences; in turn, stereotypes are less likely to
sway the truth-seeking process.

2. Judicial Intervention and Education

While lawyers undoubtedly have a key role to play in overcoming
stereotyping, in no way is it their exclusive province. Judges share the
responsibility too, for they cannot remain passive witnesses to
counsel’s attitudes and strategies, especially when the latter cross the
line.
Judges have a duty to assert firm control over court proceedings
and ensure that they are conducted in an orderly and efficient
manner.41 Concomitant with this duty, they are obliged to protect
witnesses from harassment by counsel,42 from cross-examination
that is “repetitive, prolix or abusive”,43 and intervene as necessary.
Cross-examination questions that draw on outdated, discriminatory
39. R. v. H. (J.J.), 2015 ONSC 4054, 122 W.C.B. (2d) 510, 2015 CarswellOnt
9595 (Ont. S.C.J.) at para. 87.
40. Supra, footnote 8 at 34.
41. Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, [2010] 2
C.N.L.R. 18, 265 O.A.C. 247 (Ont. C.A.) at paras. 235-236, additional
reasons 2010 ONCA 408, 189 A.C.W.S. (3d) 43, 2010 CarswellOnt 3730,
leave to appeal refused (2010), 276 O.A.C. 398 (note), 409 N.R. 396 (note),
2010 CarswellOnt 4919 (S.C.C.). See also Ethical Principles for Judges, supra,
footnote 13 at 33.
42. R. v. H. (C.) (1999), 554 A.P.R. 32, 182 Nfld. & P.E.I.R. 32, [1999] N.J. No.
273 (Nfld. C.A.) at para. 28, leave to appeal refused (2000), 586 A.P.R. 182
(note), 195 Nfld. & P.E.I.R. 182 (note), 258 N.R. 400 (note) (S.C.C.).
43. R. v. Peazer (2005), 200 C.C.C. (3d) 1, 201 O.A.C. 246, [2005] O.J. No. 3551
234 The Advocates’ Quarterly [Vol. 49

stereotypes are, at best, irrelevant, and at worst, harassing. Judicial

intervention is called for, and may be the only way to stop the
harassment at the time that it is happening. This is particularly so
when counsel tendering the witness fails to object.
To help judges fulfill their duty and avoid the legal error of
stereotyping, proper education and training is imperative. Training
can take many forms. At a minimum, it needs to enable judges to
understand how stereotypes function and the dangers of
stereotypical thinking; to identify myths and stereotypes when
they come up, implicitly or otherwise; and finally, to debunk them.
Debunking, according to Justice L’Heureux-Dubé,
is more than simply being able to recognize myths and stereotypes. It is
about exposing the ideological and cultural foundations of the myths and
stereotypes prevalent in each culture and eradicating these fictions from
the reasoning of all those who interpret our general culture, and, in
particular, those in positions of power who contribute to their reinforce-
ment.44

3. Diversity
When it comes to debunking stereotypes in the way that Justice
L’Heureux-Dubé described, a diverse bench, made up of judges of
different races, cultures and backgrounds,45 is best suited for the
task.
Perhaps a sheer coincidence, or a simple offshoot of the judiciary
being predominantly white and male, but the awkward reality we
find ourselves in is that the judges who have been found to have
committed the error of relying on rape myths and stereotypes, many
of which are involvedly gendered, are men.46 On the corollary,
judgments that broke grounds in debunking once unchallenged
stereotypes are oftentimes penned by female judges.47 Can it be said
that who a judge is matters?
(Ont. C.A.) at para. 23; see also R. v. Griffin, 2016 ONSC 2448, 130 W.C.B.
(2d) 252, [2016] O.J. No. 1916 (Ont. S.C.J.) at paras. 114 and 118.
44. Supra, footnote 16 at 91.
45. See the definition of “diversity” in Merriam Webster, and in Black’s Law
Dictionary.
46. By way of a couple of recent examples: Justice Gregory Lenehan, who
decided R. v. Bassam Al-Rawi, oral decision (March 1, 2017); Justice Robin
Camp in R. v. Wagar, 2014 CarswellAlta 2757 (Alta. Prov. Ct.). See also the
unreported trial decisions of Ewanchuk, Mills, and R. v. Darrach, 2000 SCC
46, [2000] 2 S.C.R. 443, 191 D.L.R. (4th) 539 (S.C.C.).
47. See for example, Justice Bertha Wilson leading the charge in dispelling
battered woman stereotypes in R. v. Lavallee, [1990] 1 S.C.R. 852, 55 C.C.C.
2019] Stereotypes-Bound Advocacy and Decision-Making 235

Judges’ life experiences and cultural outlooks shape the lens

through which they construe evidence and legal rules.48 Men and
women, and people of different ethnicity, sexual orientation, class,
and (dis)ability status invariably have different life experiences.
Women and minority judges, by virtue of the experiences that their
membership in traditionally disenfranchised groups has forced upon
them, may have a keener openness and motivation to debunk
stereotypes than judges who have not had the experience of being
“outsiders” in the legal system. If there is one experience shared
among women and minority judges, it is the experience of meeting
sponsors and colleagues who saw past adverse stereotypes ascribed
to women and minorities, making it possible for them to achieve the
career success requisite for judicial appointment. Such experience
engenders more empathetic judges – judges who can empathize with
people, including those appearing in their courtrooms, who are at
risk of being prejudged by, or pinned to, irrelevant, discriminatory
stereotypes.49
Who judges are affects not only how they judge and respond to
stereotypes, but also how their peers judge and respond to
stereotypes. An empirical study of the effects of gender on legal
outcomes found not only that female judges are more likely than
male judges to rule in favour of plaintiffs in employment
discrimination cases and sexual harassment cases, but male judges
are more likely to rule the same way when they sat on a panel with at
least one female judge.50 So not only does gender – and presumably,
(3d) 97, 76 C.R. (3d) 329 (S.C.C.), and Justice L’Heureux-Dubé doing the
same for a host of rape stereotypes in Seaboyer.
48. Justice Oliver Wendell Holmes, Jr., famously wrote in 1881, “The life of the
law has not been logic; it has been experience”: The Common Law (Boston:
Little, Brown, and Co., 1881) at 1. See also Beverley McLachlin, “Judging in
a Democratic State” (3 June 2014) Sixth Templeton Lecture on Democracy,
University of Manitoba, available at https://www.scc-csc.ca/judges-juges/
spe-dis/bm-2004-06-03-eng.aspx; and Paul M. Secunda, “Cultural Cognition
at Work” (2010), 38 Fla. St. U. L. Rev. 107 at 108.
49. Judging is a very human activity, and empathy – the ability to appreciate
another’s circumstances by imagining oneself in their position – is a judicial
virtue rather than a weakness. As Rebecca Lee contends, “Empathy
encourages both cognitive and emotional understanding of others with
different experiences, identities, and worldviews”: “Judging Judges: Empathy
as the Litmus Test for Impartiality” (2014), 82:1 University of Cincinnati
College of Law Scholarship and Publications 145 at 205. In a press conference
held on May 1, 2009, Barack Obama invoked empathy as a key judicial
qualification: “I view that quality of empathy, of understanding and
identifying with people’s hopes and struggles, as an essential ingredient for
arriving at just decisions and outcomes”: https://obamawhitehouse.archi-
ves.gov/blog/2009/05/01/presidents-remarks-justice-souter.
236 The Advocates’ Quarterly [Vol. 49

race and other attributes – influence the decision-making process of

the female judge, it can also push and prod their colleagues and
enrich the collective decision-making process with different
perspectives borne of different life experiences. From this, it may
be said that diversity can empower the entire bench to approach
cases with greater empathy, to challenge the status quo, and to resist
the deployment of stereotypes as a basis for decision-making.

Conclusion
Stereotypes wear the black hats in the courtroom, and rightly so.
They invite prejudgement, can close our minds to alternative
perspectives and cause us to ignore important information.
Despite being told again and again that stereotyping is prohibited,
it still happens, as R. v. A.R.J.D. illustrates. There, rape myths
imbued defence tactics and judicial reasoning, notwithstanding the
apparent contrary intention of the trial judge.
When lawyers and judges resort to stereotypes that are irrelevant
and discriminatory, we are not just substituting painstaking analysis
for lazy judgment, we are also running afoul of our professional
obligations. But there is hope. Through better awareness of our
duties, proper judicial intervention and greater diversity, we may be
able to rid stereotypes from the justice system for good.

50. Pat K. Chew, “Judges’ Gender and Employment Discrimination Cases:

Emerging Evidence-Based Empirical Conclusions” (2011), 14 J. Gender,
Race & Just. 359. See also Christina Boyd et al., “Untangling the Causal
Effects of Sex on Judging” (2010), 54 Am. J. Pol. Sci. 389.