Dans le présent article, les auteures se servent de la récente décision de la Cour suprême du Canada dans l’arrêt R. c DAI pour examiner la question de la compétence des femmes ayant une incapacité mentale à témoigner dans des causes d’agression sexuelle. Les auteures appuient la décision majoritaire de la Cour, mais elles remettent en question certains motifs, notamment le fait qu’on assimile les femmes avec une incapacité mentale à des enfants. Les auteures étudient quels types de questions sont désormais appropriées dans une enquête sur la compétence et se demandent s’il est pertinent, dans ce genre d’enquête, de recourir à des témoins non spécialisésetà des témoins experts. Elles soutiennent que le témoignage des femmes capables de communiquer est une étape de plus pour aider l’appareil judiciaire criminel à répondre au taux élevé d’agressions sexuelles contre des femmes ayant des incapacités mentales.
In this article, the authors use the recent Supreme Court of Canada decision in R. v DAI to examine the issue of competence to testify in sexual assault prosecutions for women with mental disabilities. The authors support the outcome reached by the majority of the Court but raise questions about some of the reasoning, including the equation of women with mental disabilities with children. The authors examine what types of questions are now appropriate in a competence inquiry and raise cautions with respect to the reliance on lay and expert witnesses to assist in the competency inquiry. It is argued that allowing women to testify who can communicate their evidence is a small step towards enabling the criminal justice system to respond to the high rate of sexual assault against women with mental disabilities.
Introduction
In Canadian criminal trials, both the Crown and the defence have the right to call witnesses of their choosing in order to introduce evidence to the court. In most [End Page 31] sexual assault cases, the oral testimony of the alleged victim will be essential to establishing the elements of the offence. This is particularly true where the accused does not deny that some sexual activity took place but, rather, argues that it was consensual. Because non-consent is established by reference to the subjective state of mind of the complainant, the focus becomes her testimony as to her state of mind and whether the other evidence is consistent or inconsistent with this testimony.1
Challenges to the competence of the complainant to testify assume particular importance in the sexual assault context. Because most sexual assault complainants are women,2 and the credibility of women alleging sexual assault has been historically suspect,3 such challenges also have a gendered dimension. In previous work, we have demonstrated how women with mental disabilities,4 who are subject to sexual assault at an alarming rate,5 face enormous hurdles in seeing their complaints [End Page 32] of sexual assault prosecuted and that systemic changes are necessary.6 Gender and disability intersect in this context to perpetuate sexual stereotypes about the complainant and her experience of sexual assault.7 In this article, we consider the threshold question of challenges to the mental competence of a complainant to testify in a sexual assault trial on the basis of her cognitive disabilities. We use the recent decision of the Supreme Court of Canada in R. v DAI as a vehicle for examining the issue of competence to testify.8 We believe it is particularly fitting in a volume honouring the contributions of Dianne Pothier to focus on a basic issue of access to the justice system for a group of women with disabilities.9 In particular, Pothier’s distinction between ad hoc and systemic accommodations has informed our understanding of what is necessary for the criminal justice system to recognize the experience of sexual assault for women with mental disabilities.10 Only by “contemplating diversity from the start” can we create a criminal justice system responsive to all women.11
In DAI, the majority confirmed that the competence inquiry must focus on whether the complainant can communicate the evidence, with accommodation if necessary, and not on whether she can articulate an understanding of the concept of promising to tell the truth. While applauding this result, we also consider some of the unexamined assumptions present in the Court’s decision that have the potential to reinforce stereotypes about women with mental disabilities and thus to unfairly undermine their credibility. We also address, after DAI, what questions are appropriate to ask a witness at a competency hearing.
Witness Competence under the Canada Evidence Act
Historically, lawyers have always been able to object to the competence of a witness to testify under oath. The alleged incompetence might come from the status [End Page 33] of the witness (for many decades, husbands and wives were not competent to testify against one another in criminal proceedings, even if they wished to do so)12 or the mental incapacity of the witness because of age or disability. At common law, only sworn testimony, given under oath, could be received in court.13 This rule was relaxed beginning in 1893 in the Canada Evidence Act to permit the receipt of unsworn evidence of children of tender years if it was corroborated by other evidence.14 We consider these provisions not because we wish to draw an analogy to children but, rather, because they show the historical development of the competency inquiry with respect to unsworn testimony and because they were the template for provisions respecting adults.
Where the competence of a child witness was challenged, judges would typically first conduct an inquiry into the witness’s ability to understand the nature of an oath, often by reference to religious beliefs and the prospect of punishment for lying. If the judge was of the view that the child was not able to understand the nature of an oath, she could still testify, according to the act, if she was “possessed of sufficient intelligence to justify the reception” of the evidence and understood “the duty of speaking the truth.”15 The child witness might be asked to define truth and lying, to say whether particular statements were true or not, or to explain what a promise was. If the witness passed these tests, she could testify unsworn, but the jury was instructed to give her evidence less weight and that it was unsafe to convict without corroboration.16
It is important to recognize, then, that the Canada Evidence Act at this point only considered the competence of children to testify. The ability to challenge the basic competence of an adult witness to testify remained with the common law. Because an adult’s testimony could only be given under oath, adult witnesses whose competence was challenged were subject to similar interrogations as to their religious convictions and their understanding of the punishments for lying, be they divine or judicial. However, there was no ability to testify unsworn if these tests were not met. [End Page 34]
In 1988, the sexual offence provisions of the Criminal Code relating to child victims were repealed and replaced with a series of new offences, influenced by the Badgley report on sexual offences against children.17 At the same time, the Canada Evidence Act was amended to broaden the circumstances in which the evidence of children could be received in court. For the first time, adults whose mental capacity was challenged were also included in the statutory provisions.18 These amendments introduced a number of improvements for child witnesses. First, the corroboration requirement for unsworn testimony was removed. Second, the focus was shifted from intelligence and the “duty” to tell the truth to a more functional approach: witnesses who were able to “communicate the evidence” could testify on a promise to tell the truth.
The inclusion of adult witnesses whose mental capacity was challenged can be criticized for erroneously equating them with children (a process of infantilization that we criticize below as unhelpful and inaccurate). On the other hand, if courts applied this provision as written, it had the potential to be a significant improvement for adult witnesses.19 First, they were not limited to testifying under oath. Second, all that was required for competence to testify was an ability to communicate the evidence. Notably, the section did not require on its face that the witness be able to explain the meaning of a promise to tell the truth or to demonstrate an understanding of the importance of truth telling. [End Page 35]
Nonetheless, most courts continued to require that witnesses of any age subject to a section 16 inquiry answer questions that would determine their understanding of the duty to tell the truth, similar to that used to determine whether a witness could testify under oath.20 For example in R. v McGovern, the Manitoba Court of Appeal upheld the accused’s conviction for sexual intercourse with a female under the age of fourteen on the basis of testimony from the complainant that was given on a promise to tell the truth after a section 16 inquiry.21 The complainant was nineteen years old at the time of the trial and was described as a “slow learner” with a developmental age of ten. Justice Twaddle noted:
An ability to communicate evidence is not defined [in section 16]. The word “evidence,” however, denotes a statement made by a witness under a legal sanction, whether that be an oath, a solemn declaration or a promise to tell the truth. It is thus quite clear that to be able to communicate evidence a witness must understand what it means to tell the truth. There would be no purpose in requiring a witness to promise to do so if an understanding of what truth is was not a requisite.
It is equally clear, in my view, that, in permitting a witness to give evidence “on promising to tell the truth,” the statute implicitly requires an understanding on the witness’s part of what a promise is and the importance of keeping it. Otherwise, the promise would be an empty gesture.22 [End Page 36]
The approach in McGovern was echoed by the Ontario Court of Appeal in R. v Farley.23 The complainant was a twenty-six-year-old man with a developmental disability who met the accused at a mall. The accused came to his group home the next day to take the complainant on an outing. Farley allegedly sexually assaulted the complainant by touching his penis and digitally penetrating him. The defence challenged the complainant’s competence to testify. As part of the section 16 inquiry, the trial judge asked the complainant if he went to church, to which he replied that he did not. She then asked the complainant why a person should tell the truth, why this was important in court, and why people are given a Bible and asked to tell the truth in court. She also asked the complainant what a promise meant and if a promise meant anything to him. He was unable to say what a promise, a lie, or the truth meant. He responded in the affirmative each time when asked if he knew what it meant to tell the truth and if he could tell the truth in court.24 At several points when asked about the importance of telling the truth, the complainant began to recount the details of what the accused had done to him. The trial judge found the complainant to be competent to testify on a promise to tell the truth. He testified, and the accused was convicted.
The Ontario Court of Appeal dismissed the accused’s appeal. Calling this a “close case,” the appeal court held that, in the absence of a manifest abuse of discretion, the trial judge’s decision was entitled to deference.25 Justice Doherty, for the court, held that the amendments to section 16 did not remove the requirement for an inquiry into whether the witness could appreciate what it meant to tell the truth.26 He applied the standard from R. v Khan, used for child witnesses,27 that the witness “understand[s] the duty to speak the truth in terms of everyday social conduct” and held that some inquiry into the witness’s understanding of the meaning of the promise was required.28
Throughout the decision, the complainant in Farley was equated with a three-year-old child, and his capacity to give evidence was evaluated according to tests developed in the context of children.29 As we discuss later in this article, these labels have the tendency to unfairly diminish the capacities of people with intellectual disabilities. The complainant in Farley was an adult who went to the shopping mall and other outings on his own. When the accused began to sexually assault him, the complainant told him to leave his body alone, pulled up his pants, got out of the truck, and walked home. These responses show considerable courage and resolve on the part of any sexual assault victim and are certainly beyond the abilities of a three year old. [End Page 37]
The trial judge’s section 16 inquiry in Farley was problematic. It was not surprising that the complainant could not explain the importance of truth or define what a promise or a lie meant in some abstract sense. When asked if he would tell the truth, the complainant began to explain what “Sunny” did to him. In other words, he began to speak the truth as he saw it. He did not seem to understand the point of the inquiry, so it was hardly surprising that he was not always responsive to the questions being asked.
Witnesses who are not labelled mentally disabled do not have to explain why telling the truth is important or whether they know the penalties for perjury or whether they know what an oath is. All they have to do is swear or affirm that they will tell the truth, and yet this process is not considered empty formalism. While age is only a rough proxy for levels of understanding, at least it is a quality that can be determined with precision. Mental ability, on the other hand, exists along a variety of spectra encompassing understanding, cognition, communication, suggestibility, and other factors. There is no clear threshold for when someone has an intellectual disability, and the only trigger for the section 16 inquiry is the defence request.
Section 16 was applied to child witnesses in a similar fashion to that endorsed in Farley. For example, the British Columbia Court of Appeal in R. v Ferguson overturned the conviction of the accused for sexually assaulting a four-year-old girl on the basis that the trial judge had erred in finding her competent to testify on a promise to tell the truth.30 The young witness endured a lengthy voir dire in which she was able to answer questions about what she did at kindergarten, to identify whether the colour ascribed to various books was “true” or a “lie,” and to speak in comprehensible terms about promising to pick up her toys and being grounded if she did not do so.31 Some of her other answers were non-responsive or expressed a lack of comprehension. Relying on Farley, the appeal court held that there was insufficient evidence that the witness understood the meaning of a promise to tell the truth, and her evidence was thus inadmissible.
As a result of such cases, advocates for child witnesses and researchers in the Child Witness Project at Queen’s University led by Nicholas Bala argued before Parliament that the suspicion levelled at child witnesses was unwarranted and that children were no more likely than other witnesses to give untrue evidence, so long as they were questioned in an age–appropriate manner. They also argued that abstract questions about the meaning of truth and promises were confusing and unhelpful.32 This research proved influential and led to further amendments to the Canada Evidence Act in 2006. The amended provisions split off children (defined as persons under fourteen years of age) from other witnesses whose [End Page 38] capacity was at issue and enacted a new section 16.1 to deal with challenges to children’s competence. The section dealing with children now provides:
16.1
1 A person under fourteen years of age is presumed to have the capacity to testify.
2 A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.
3 The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.
4 A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.
5 If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.
6 The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.
7 No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.
8 For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.33
These amendments represent a significant advance in securing equality for child witnesses. The hierarchy between sworn and unsworn evidence that continued to be applied by some courts was abolished, questions on the understanding of the promise to tell the truth were barred, and the threshold for competence became the ability to understand and respond to questions. Whether those responses are truthful was henceforth left to the trier of fact in assessing credibility.
However, the 2006 round of amendments left unchanged the wording of the 1988 provisions for adult witnesses whose competence is challenged. Section 16 currently provides: [End Page 39]
16
1 If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
a whether the person understands the nature of an oath or a solemn affirmation; and
b whether the person is able to communicate the evidence.
2 A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.
3 A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.
4 A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.
5 A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.34
The approach used in Farley, with its questions about the meaning of truth and promises, continued to be applied to adult witnesses. Whether this approach was correct, and the question of what sort of inquiry is mandated by section 16 for witnesses with mental disabilities, was at issue in R. v DAI.
R. v DAI
In DAI, three female complainants testified that the accused had sexually assaulted them. All three had intellectual or physical disabilities, and in each case the accused was dating or living with their mothers at the time of the alleged assaults. The trial judge acquitted the accused on all counts.35 The Crown appealed only with respect to the complainant “K.” She had reported to her teacher that the accused played a “game” with her when they were watching television in which he touched her breasts and her body. K was the oldest of the three complainants; she was nineteen years old when the alleged touching took place and twenty-two years old by the time of the trial. [End Page 40]
A videotape of her testimony was admitted at the preliminary inquiry, and she was cross-examined on its contents. The trial judge, however, found that the complainant was not competent to give evidence at trial on a promise to tell the truth. While the complainant was able to communicate the evidence and was able to answer correctly a number of questions about her family, school, and hobbies, the trial judge found that she did not understand the meaning of promising to tell the truth. At first, she was able to answer correctly questions about when something was or was not true, but her answers quickly reverted to a series of “I don’t knows.” The trial judge then refused to admit hearsay statements she had made to her teacher and other adults, in part because her lack of competence to give evidence under a promise to tell the truth made the hearsay statements unreliable.36
The Ontario Court of Appeal dismissed the Crown’s appeal on the competence issue.37 Relying on Farley, the Court noted that trial judges were to be accorded significant deference in their assessment of competence and that the trial judge had not erred in questioning the complainant on her understanding of promising to tell the truth.38 There are a number of problems with the competency voir dire conducted by the trial judge in DAI. First, the judge repeatedly questioned the complainant about abstract concepts—for example, what it means to promise something. Second, the judge twice referred to whether the complainant knew anything about religion.39 Third, the trial judge failed to acknowledge that the complainant never lied at any time when subjected to this lengthy examination. She either answered the questions truthfully or she said: “I don’t know.”40
The trial judge made clear that the ability to define truth is required rather than just being able to demonstrate that one can give truthful responses:
Having questioned [K] at length I am fully satisfied that [K] has not satisfied the prerequisite that she understands the duty to speak the truth. She cannot communicate what truth involves or what a lie involves, or what consequences result from truth or lies.41
Many of the questions asked of the complainant on the voir dire required her to describe or define the consequences of behaviour in the abstract. For example, the [End Page 41] complainant was asked what happens if you break a promise or tell a big lie. These questions were not placed in any concrete factual setting. It is hardly surprising that the complainant could not come up with an answer to these questions. One assumes that the trial judge wanted her to say that you would go to jail, or get in trouble, if you lie or break promises. Yet the real answer, in the abstract, may well be that “it depends.” Often lies and broken promises, even big ones, do not carry any consequences.
The trial judge declined to allow the Crown to call the complainant’s teacher to testify on the voir dire in advance of the complainant, which would have provided the Court with a better understanding of how the complainant might process and respond to questions. After the complainant was ruled incompetent, her teacher did testify on the voir dire to admit the complainant’s hearsay statements. The teacher gave evidence that saying “I don’t know” was the complainant’s manner of indicating that she could not process the question and retrieve the answer. The judge had asked the complainant if she wanted a break and she had declined, but this answer may well have been because she wanted to get the questioning over with or because she did not understand that a break might help her to refocus. She did indicate twice that she was finding the questioning “hard.”42
Counsel for the Crown suggested that asking the complainant to identify when she needed a break might be unhelpful, but it was rebuked by the trial judge:
You’re saying [K was] fresher [when she testified the first time.] I asked her specifically that, whether she was tired and she said she wasn’t. You’re making these assumptions, I mean she said to me she wasn’t, she was fine . . .
Well, the difficulty, Your Honour, frankly is that a mentally challenged or a witness who’s tired may not say “I’m tired, I need a break.”
Look, you know, you’re not speaking to a neophyte here, I’m one of the very few judges in Canada who took the Social Context Education course where we would teach judges, I’ve taught judges on this issue of mental capacity, I’ve got my degree in Social Context Education 1, Social Context Education 2 and the degree signed by the Chief Justice of Canada. So you don’t have to, Mr. Semenoff, try to teach me about disability, I’m completely aware of disability. I’m doing a s. 16 inquiry here and I have an obligation to ensure that this witness, this witness, understands the truth. She’s telling me she’s not tired. [End Page 42]
Yes, Your Honour, and I’m not trying to teach you, I’m not trying to patronize you in any way, sir. I’m simply stating my observations and my submissions . . .
I’m simply saying, Mr. Semenoff, you know, I do understand the issue of disabled individuals. I do understand it.
If I may just ask . . .
Understanding is one thing and applying the law is another.43
The complainant in this case was actually quite high functioning. She could recount some of the experiences of her day-to-day life, including details of her daily routine, interests, and going to school. She was able to communicate in an intelligible fashion to those around her about events that had happened several months previously.44 She could identify a favourite singer, the name of one of her songs, and a recent movie that she had watched.45 If this complainant was considered incompetent to give evidence on a promise to tell the truth, many women with intellectual disabilities would be disqualified from giving evidence. Because the trial judge relied in part on the complainant’s incompetence to testify to exclude her hearsay statements as unreliable, an acquittal was inevitable.
On further appeal to the Supreme Court of Canada, the Crown argued that the approach used by the trial judge in Farley was incorrect and that section 16 on its face did not require an assessment of the ability to tell the truth, only a determination that the witness could communicate the evidence.46 In the alternative, it argued for a functional approach to questioning grounded in everyday social conduct and argued that the threshold was met by the complainant in this case.47 The defence argued that the amendments to section 16 prohibiting questioning children on their ability to understand the promise made clear that Parliament intended to continue the practice for adults and that the trial judge’s decision was entitled to deference.
The Women’s Legal Education and Action Fund (LEAF) and the DisAbled Women’s Network (DAWN), in coalition, intervened in support of the Crown’s position, pointing out that the equality rights of women with mental disabilities should inform the interpretation of the legislation. In particular, in the absence of any evidence to suggest that a promise to tell the truth was insufficient to secure truthful testimony, the Court should not read in additional requirements. LEAF/DAWN [End Page 43] pointed out that challenges to witness competence were disproportionately directed at women complainants in sexual assault cases and that women with mental disabilities experience even higher rates of sexual violence than women generally. They explained that the courts should interpret section 16 in such a way as to maximize access to justice for this group of women.48
In a divided Supreme Court of Canada, the majority (per McLachlin CJ) overturned the judgment of the Ontario Court of Appeal and held that the complainant could not be questioned on her abstract understanding of the duty to tell the truth.49 The majority’s decision was based primarily on principles of statutory interpretation, which led to the conclusion that, once it is determined that the witness cannot testify under oath, the test in section 16(3) of the Canada Evidence Act is simply whether the witness can communicate the evidence and promise to tell the truth. Any further requirement would be reading into the legislation words that are not present.50
The majority found that the purpose of the 1987 amendments was to remove barriers that prevented witnesses with mental disabilities from testifying and to eliminate the idea that an abstract understanding of the promise was a prerequisite for testimonial capacity.51Obiter dicta from Khan, dealing with the predecessor legislation applicable to child witnesses, should not be adopted into section 16(3).52 The legislation at the time of Khan dealt only with child witnesses and required that the witness “understand the duty of speaking the truth,” which is not a requirement of the current legislation.
The majority judgment was premised on two underlying policy concerns: the need to bring to justice those who sexually assault women with mental disabilities and the importance of ensuring a fair trial for the accused. It is important not to set the bar for testimonial capacity too high, given that the trier of fact does not have to accept the witness’s testimony. Concerns about the accused’s fair trial rights can be met through the rules governing admissibility and weight. The witness’s testimony will be subject to cross-examination, and the trier of fact will assess the weight to be given to her testimony in light of how she answers questions. The majority addressed the two central arguments against its position. First, if one requires a promise to tell the truth but can have no inquiry into whether the witness understands this promise, is the promise merely an “empty gesture”? Second, why would Parliament have put in an express prohibition against questions about the [End Page 44] ability to understand a promise to tell the truth only for children and not for adult witnesses with disabilities, if it intended the same prohibition to apply to the latter group?53
The majority noted that a promise to tell the truth is not merely an “empty gesture” but, rather, one that reinforces the seriousness of the occasion.54 A promise to tell the truth can be meaningful in and of itself even if the witness cannot explain that promise. If one allows questioning on the nature of truth and falsehood, then there is very little distinction between the promise to tell the truth and an oath. It also concluded that when Parliament enacted section 16.1(7) prohibiting the questioning of children on their promise, it did not turn its mind to adult witnesses and was addressing the law regarding “children, and only children.” 55 Even with respect to child witnesses, the prohibition in section 16.1(7) merely confirms the existing law rather than changing the law. It was necessary to add the prohibition to section 16.1 because the courts were continuing to engage in improper questioning of children. The express ban on questioning for child witnesses does not demonstrate the intent to allow such questioning for adults with mental disabilities.
The dissent (per Justice Ian Binnie) focused on the importance of cross-examination and the defence’s need to be able to challenge the evidence of the complainant as well as on deference to the trial judge who observed the complainant on the stand.56 The dissent was clearly concerned that “K” would not be able to be rigorously cross-examined. Without cross-examination, there was no “secure method” of testing her credibility and thus allowing her to testify would have been unfair to the accused.57 The dissent held that there is more to a promise to tell the truth than the ability to make the promise. The complainant cannot merely “mouth the words.”58 The trial judge must determine whether the witness understands the difference between truth and fiction and the importance of telling the truth. The dissent used the ability to answer questions about a promise to tell the truth as almost a proxy for whether the witness can be cross-examined. If the witness cannot stand up to this questioning, she will not be able to stand up to cross-examination. If the promise is “reduced to an empty formality,” the accused does not get the protection offered by a promise to tell the truth.59
The dissent characterized the majority judgment as operating on a “don’t ask” basis rather than trying “to endeavour to determine whether the potential witness has any sense of what it means in simple concrete terms to promise to tell the truth.”60 The dissent noted that the “don’t ask” rule, enacted for children, was [End Page 45] based on empirical research on the capacity of children to understand a promise to tell the truth. No such studies were conducted with adults with mental disabilities. The dissent criticized the majority for treating persons with mental disabilities as being equivalent to children, in the absence of evidence, simply because they are both vulnerable groups.61
In the following section, we seek to clarify where the law stands after DAI, and we raise some concerns about the reasoning used. First, we begin by clarifying the purpose of a competency hearing and its connection to cross-examination. Second, we explore what questions can be asked in a competency inquiry after DAI. Third, we examine the tendency of courts to equate adults with mental disabilities with children by assigning a mental age equivalency to the individual. Finally, we examine the role of both lay and expert witnesses in assisting the court in the competency determination and applications to admit hearsay evidence. We have particular concerns about how expert evidence was handled in DAI, and, while we support the ability of persons close to the complainant to be able to testify about her abilities, we urge a note of caution in accepting such testimony uncritically.
The Competency Inquiry and Cross-Examination
It is important to remember what is at stake in a competence inquiry. The purpose of the inquiry is to “exclude at the outset worthless testimony.”62 A competence inquiry is not about credibility, demeanour, reliability, or how valuable her evidence will ultimately be to the prosecution or defence. All of those determinations are for the trier of fact. It may be that evidence from a witness with a mental disability will be found not to be credible for a variety of reasons. A poor ability to recall events, for example, may result in a jury rejecting that evidence as unreliable. By refusing to allow a complainant to testify, we are saying that her testimony is “worthless” and that we cannot allow the trier of fact even to hear the evidence and make an assessment about its weight. If we are concerned about silencing sexual assault claims by women with mental disabilities, it is essential not to set the threshold too high.
The idea that cross-examination serves a vital role in protecting the accused from wrongful convictions and that the competency inquiry can demonstrate an inability to be cross-examined lay at the heart of the dissenting judgment. The fact that the complainant’s videotaped evidence was admitted at the preliminary inquiry and that she was cross-examined on that evidence was ignored. More broadly, this focus on the importance of a rigorous cross-examination creates problems for women with mental disabilities. We have argued elsewhere that the typical confrontational cross-examination is particularly ill-suited for getting at the truth when dealing [End Page 46] with witnesses with mental disabilities.63 For example, the available research indicates that witnesses with disabilities do much better with open-ended questions where they can tell their story rather than with questions where a particular answer is being sought.64 Complex sentence structure, several questions at once, questions phrased in the negative, and, in particular, leading questions are especially difficult for many witnesses with mental disabilities.65 Leading questions are more likely to evoke a positive response because of the tendency of some persons with mental disabilities to be suggestible, especially to those in authority.66 Individualized accommodation may require further modifications to the examination process.67
If we need to rethink our approach to cross-examination, we also may need to rethink how we question witnesses about their competence to testify. Simply accepting that a rigorous and challenging cross-examination is always the best way to get at the truth, and then using the competency inquiry as a means to test that ability, fails to accommodate witnesses with disabilities in the judicial process. Instead, the competency hearing should be seen as an opportunity for determining what kinds of accommodations a witness might need to participate in the trial more effectively. The appropriate question is whether, with all of the necessary accommodations, the witness is able to communicate her evidence.
The Competency Voir Dire after DAI
What questions can be asked of a proposed witness on a competency voir dire after DAI? The majority described the standard as a basic ability “to relate events. This in turn implies an understanding of what really happened—i.e. the truth—as opposed to fantasy.”68 It is clear that concrete questions about everyday topics can be asked. These questions would demonstrate the degree to which the witness is able to communicate about non-controversial aspects of her life. These questions might take the form of direct requests for specific information (how do you get to school; who lives at your house), questions that ask the witness to describe certain events (what do you do before you go to school in the morning), or questions that allow the witness to express her preferences (what food do you like to eat; what television shows do you watch). These kinds of questions can test the ability of the witness to communicate responsively and accurately. [End Page 47]
Even these questions need to be tailored to the individual witness. For example, witnesses whose disabilities present difficulties with the sequencing of events should not be found incompetent to testify because they cannot describe the steps of their morning routine in chronological order. That is an issue going to the ultimate reliability of the evidence, which may depend on whether the ability to place certain events in sequence is material to the particular case. What is important is that the witness can give responsive answers (I eat; I brush my teeth) as opposed to fanciful or nonsensical ones. Even answers that might appear nonresponsive could be the result of the witness using slang terms or nicknames or expressions with which the judge is not familiar.69
These concrete questions could also relate to facts observable in the courtroom, such as “who came with you to court today?” or “is there anyone in the courtroom with a red sweater?” In DAI, however, the judge and lawyers went further and asked questions related to the accuracy of the concrete facts observable in the courtroom, namely whether a particular claim was “true” or a “lie.” These questions straddle the line between inquiries into concrete practical facts and questions about the understanding of truth. Is it permissible after DAI to ask: “Is it true that I am wearing a hat right now?” or “If I told you I was wearing a hat, would that be a lie?” The ambiguity arises from the majority’s disapproval of the obiter comments in Khan that a competency inquiry involves both an assessment of the ability to speak the truth in terms of everyday social conduct and also whether the witness understands the importance of promising to tell the truth.70 The majority reasoned:
[T]he Khan test, as already noted, is ambivalent. It first suggests that all that is required is an understanding of the duty to speak the truth “in terms of ordinary everyday social conduct” (p. 206). However, it then goes on to illustrate this test in terms abstracted from everyday social conduct. In my view, the former approach is preferable.
This lower threshold recognizes that witnesses of limited mental ability, whether by reason of age or disability, understand and articulate events in the concrete terms of the world around them. The capacity to abstract from the concrete and draw generalizations about conduct unrelated to concrete situations typically develops at a later, more advanced stage of mental development. A child or adult with mental disabilities may be able to distinguish between what is true and false or right and wrong in a particular situation, yet lack the ability to articulate in general language the reasons for this understanding. To insist on the articulation of the nature of the [End Page 48] obligation to tell the truth, abstracted from particular situations, may result in the witness’s evidence being excluded, even though it is reliable.71
This passage helpfully distinguishes the ability to respond to a question in concrete terms from the ability to abstract from the concrete and draw generalizations.
While it may be accurate to say that more witnesses will be able to identify whether a particular claim is “true” than will be able to define “truth” in the abstract, questions about whether something “is true” still require the witness to have the ability to grasp the meaning of truth, as a concept. If the majority’s decision is read to permit this distinction, the difference in the approach of the majority and that of the dissent becomes harder to discern. The dissent also disapproves of “abstract questions” but would endorse questions “designed to test the understanding of a promise to tell the truth in a concrete context”:
The Khan test specifically framed the inquiry as being into “ordinary everyday social conduct” (C.A., at p. 206). At no point did this Court in Khan . . . require that the potential witness be able to articulate or even understand in the abstract concepts such as oaths, affirmations or promises . . . [I]f it appears to the trial judge that the potential witness whose mental capacity is challenged has demonstrated an understanding of a promise to tell the truth in terms of ordinary, everyday social conduct, the witness has met the test for giving unsworn testimony. The same would be true in my view of a witness who understands the seriousness of the situation and “the importance of being careful and correct,” to use the Chief Justice’s words in this case (para. 36). However, even this approach could not be satisfied by K.B. according to the trial judge who was uniquely placed to observe her demeanour.72
The dissent did not provide examples of what such questions might look like, but the approval of the voir dire suggests that the questions asked by the trial judge were appropriate, including questions that required application of the concepts of truth or promising.
In our view, the competency voir dire after DAI should be limited to concrete questions about everyday matters, whether observable in the courtroom or related to the witness’s everyday life. In particular, it may be useful to know if the witness will answer in the negative where such a response is correct—for example, by asking “are the walls in here red,” when they are in fact white. However, the questioner should be careful not to veer off course with follow-up questions about truth and lies. The question “if I told you the walls were red, would I be lying” requires the witness to understand “lying” as a concept and [End Page 49] can easily lead to further questions about the importance of not lying in court. Not only does such a question require an understanding of truth and lies, but it also requires quite complex cognitive processing. “If I said the walls were red” (when they are not) requires the witness to understand a hypothetical scenario that does not exist. The witness’s response to “are the walls in here red” demonstrates whether she can accurately describe and communicate reality without the same potential for confusion.
A better approach would be to test the ability to respond in the negative by asking “do you ride a bicycle to school,” where the witness in fact walks and the assault is alleged to have taken place while she was travelling to school. This question is both concrete and not trivial or completely collateral to why the witness is there. If the witness answers “no,” she has demonstrated the ability to answer truthfully, which is what the Canada Evidence Act requires.
To conduct an effective voir dire, the judge needs information about what kinds of questions are appropriate for the particular witness. Inaccurate answers to some questions do not necessarily make the witness incompetent. A witness may have trouble with questions framed in the negative or multi-part questions. The witness may tire and become distracted, and an alert judge may need to call for a break. As described earlier, this latter issue was the subject of an exchange between Crown counsel and the trial judge in DAI, when the complainant declined the offer of a break. It is also worth remembering that some people with mental disabilities may reject offers of treatment they perceive as different from that accorded to everyone else.73 The fact that they are being subjected to an inquiry not required of other adult witnesses is already inherently stigmatizing, and there is no reason to think that this fact will be unnoticed by them. Simply calling for a routine break when responses deteriorate may be better than asking the witness if she needs a break. Competency inquiries really do put the witness on trial.
The Use of “Mental Age”
A very common tendency in the lives of adults with mental disabilities whenever they are “assessed” by professionals is to equate their abilities with that of a child. The complainant in DAI, for example, was said to have the range of a three-to-six year old (a range too broad to be meaningful in this context).74 We have criticized elsewhere this tendency to infantilize complainants with disabilities [End Page 50] by equating them with children.75 This practice tends to focus on what the woman cannot do rather than on the abilities that she does have and defines her in terms of her limitations in a manner that reduces her credibility from the outset. The majority judgment, in particular, is replete with such references.76 Perhaps the most troubling is the following passage:
[W]hen it comes to testimonial competence, precisely what, one may ask, is the difference between an adult with the mental capacity of a six-year-old, and a six year old with the mental capacity of a six year old? Parliament, by applying essentially the same test to both under ss. 16(3) and s. 16.1(3) and (6) of the Canada Evidence Act, implicitly finds no difference. In my view, judges should not import one.77
Mental age does not describe the complainant in a holistic way, and we believe that such reasoning reflects a complete failure of the imagination—we can only describe women with disabilities if we can compare them to a category with which we are familiar. We are unable to describe them on their own terms—as adult women with various disabilities. Mental age may be a useful device for describing specific ability levels—for example, the witness’s ability in mathematics or reading. However, it does not describe the complainant globally or recognize that her years of lived experience inform who she is as a person. The young woman who has been labelled as having the mental age of a six year old is not the same person she was when she was actually six. Her years of experience with the world and her development through the life cycle contribute to the adult she has become, whatever her intellectual abilities.
The dissent also criticized the earlier passage, suggesting that the majority is missing the fact that a six-year-old child does not have a disability:
In my view, the difference is that the six-year-old with the mental capacity of a six year old does not suffer from a mental disability. The fact that psychiatrists speak of persons with mental disabilities calibrated in terms of mental ages is a useful way of describing the relative extent and severity of a person’s disability, but it does not mean that a 22-year-old woman with a severe mental disability is on the same footing as a six year old child with no mental disability whatsoever, and of course the empirical evidence before Parliament in 2005 did not suggest otherwise.78 [End Page 51]
In this passage, the dissent not only rejected the equation to children, but it also implied that women with disabilities are somehow less able than children because most children do not have a disability. In our view, the majority’s error is not that a particular child witness does not have a disability but, rather, that the woman with a disability is not a child—she is a woman—and has life experiences and is at a developmental stage that renders the analogy seriously problematic.
Most empirical studies that we have found take for granted that mental equivalence is an appropriate tool.79 One exception can be found in the following passage by Kristine Ericson and Nitza Perlman:
Although research with children is informative with respect to some of the types of communication and other difficulties that can arise as a result of lack of understanding of legal terminology and court proceedings, [developmentally disabled] adults are not directly comparable to [non-disabled] children because they have undergone physical and hormonal changes associated with puberty, and may have had other learning and life experiences (e.g., normal sexual relationships, jobs, responsibilities, continued education) that [non-disabled] children would not have typically experienced.80
We believe that the equation of adult women with disabilities with children lies at the heart of some of the stereotyping that is particularly predominant in sexual assault prosecutions.81 If the complainant is analogous to a six-year-old child, then any sexual activity or conversations about sex on her part can be characterized as inappropriate.
The trial judge in DAI noted that the complainant described the accused as a “hottie” and that she and her friends showed an interest in sexuality.82 We suspect that this was only considered worthy of note because we have a tendency to view women with mental disabilities as both asexual, in the sense that sexual activity is not appropriate for them, and also as being oversexed or sexually [End Page 52] indiscriminate.83 Evidence that a nineteen year old talks about sex with her friends should not be all that surprising, whereas evidence that a three-year-old or a six-year-old girl does so would raise cause for concern. The trial judge described K as a “child in a woman’s body,” an idea that defines her as unnatural, a sexually precocious child.84 In fact, she is a woman with a disability in a woman’s body. There is nothing wrong with young adults having sexual feelings. They deserve education on sexual matters that will help them express their sexual feelings in ways that are healthy and non-coercive. Instead, the assumption seems to be that these impulses need to be controlled and dissipated or that they are evidence of uncontrolled sexuality that may have encouraged or welcomed sexual attention from the accused.85
Evidence from Other Witnesses
Depending on the facts of the case, evidence as to a witness’s capabilities may come from a variety of witnesses with varying degrees of expertise and familiarity with the witness. This group could include expert witnesses such as psychiatrists or lay witnesses such as family members, support workers, or teachers. The majority in DAI specifically endorsed the use of testimony from lay witnesses close to the complainant, such as parents or teachers.86 The majority found that such testimony could assist the trial judge in determining the particular testimonial needs of the witness. This seems a sensible approach under the current system since those closest to the witness are the most likely to be able to describe how to communicate with her effectively.
In our view, evidence from lay witnesses familiar with the complainant is preferable in this context to relying solely on the opinions of outside experts who have never spent any sustained time with the witness. In DAI, the defence called an expert who based his opinion on various documents pertaining to the complainant and on his observations of her on the witness stand. He testified that in his view she was not competent to give evidence.87 There are several concerns with such an approach. The expert witness is observing the complainant in a highly stressful and unnatural setting. While it is true that this is the setting in which she will be expected to give evidence, those with personal knowledge of the witness in everyday life will be able to assess whether the courtroom is impairing her typical communicative abilities. In addition, outside witnesses tend to focus on the complainant’s limitations rather than on her abilities. As such, it is not [End Page 53] the role of such an expert to suggest accommodations that might facilitate the receipt of the complainant’s evidence—accommodations that are required as part of the witness’s right to participate in the trial without discrimination on the basis of disability.
One might object to evidence from parents or teachers on the ground that it is not as objective or disinterested as that given by an outside expert. Obviously, those closest to the complainant have a personal interest in seeing her declared competent. However, if their evidence is limited to descriptions of the complainant’s level of understanding and the ways in which her particular disabilities are manifested, rather than to the opinion evidence about her competence to testify, this concern is attenuated. There is a greater concern that points in the opposite direction from unconscious bias in favour of the complainant. We should not assume that such lay witnesses are themselves necessarily free of myths and negative stereotypes about persons with mental disabilities.88 There is a danger that such stereotyping will be overlooked because it is assumed that such witnesses are supportive of the complainant.
These strengths and weaknesses were evident in the testimony of the complainant’s teacher in DAI. The trial judge received evidence from the complainant’s teacher on the question of whether the complainant’s hearsay statements were sufficiently reliable to be admitted in the absence of her direct testimony.89 During her evidence, the complainant’s teacher was able to give important evidence about the complainant’s ability to communicate and, in particular, about the discrepancy between her ability to understand and her ability to communicate, which caused frustration and resulted in her tendency to repeat that she “didn’t know” the answer to the questions.
In addition, the teacher’s evidence was that the complainant might give an answer to a question about what had happened that reflected what she had been thinking about or what she would have like to have happened. The teacher explained that if asked what happened over the weekend, the complainant might answer “DAI’s place” because she had been thinking of going there, not because she actually had been there.90 This statement was a useful caution that should have prompted a questioner to try and verify which of these two possibilities was meant by the witness’s answer. This possibility did not negate her ability to communicate. Yet the dissent at the Supreme Court of Canada relied on this characterization as evidence of the complainant’s tendency to “wishful thinking.”91
This leap of logic was possible because the teacher’s evidence also invoked stereotypes of mental disability and sexuality. She labelled her students as sexually [End Page 54] inappropriate, a theme picked up by the trial judge in his ruling on the hearsay evidence:
[K’s teacher] also testified that her experience with mentally challenged students is that they often act inappropriately in sexual matters. Simply put, they are children in women’s bodies and while their bodies have women’s needs the control mechanisms are those of a child and consequently inappropriate sexual behaviour is common in such individuals.92
Thus, the evidence of the complainant’s teacher, while useful and important, was not free from the stereotypical thinking about the hypersexuality and child-like nature of women with mental disabilities that is a recurring problem in these cases.
Conclusion
Women with mental disabilities are extremely vulnerable to sexual assault, particularly by those in positions of trust or authority over them. Labelling them as incompetent to testify is the most extreme way in which the legal system can silence their allegations of sexual assault, label their stories as worthless, and label their promises of truth as “empty gestures.” We do not accept that allowing women who can communicate the evidence to testify compromises a fair trial or contributes to wrongful convictions. Competence to testify is just one hurdle that must be overcome in prosecuting these cases. Even though the evidence is supposed to carry the same weight,93 witnesses testifying on a promise to tell the truth may well have their credibility damaged from the outset because of stereotypes about mental disability.94 They also still face hurdles with respect to their ability to withstand the perils of a rigorous cross-examination and with respect to demonstrating that their words and actions were “adequate” expressions of non-consent. Thus, while we have some concerns about the reasoning of the majority in DAI, we applaud its courage in recognizing the importance of allowing women to at least participate in this process. While it may be too late to obtain justice for “K,” DAI is nonetheless a step towards the systemic rethinking needed to successfully prosecute these cases. [End Page 55]
Janine Benedet is an associate professor in the Faculty of Law at the University of British Columbia, where her research focuses on male sexual violence against women. Her recent research considers the criminal law of sexual assault’s treatment of questions of capacity and voluntariness in the contexts of age and (with Isabel Grant) mental disability. She is active in opposing the prostitution and pornography industries as institutions of male violence.
Isabel Grant is a professor of law in the Faculty of Law at the University of British Columbia. She teaches in the areas of criminal law and mental health law, and her research focuses on criminal justice and gender with a particular interest in issues involving the intersection of mental disability and gender. She has also worked on a number of equality-related cases in the Supreme Court of Canada for LEAF and other public interest groups.
The authors would like to thank the Foundation for Legal Research for its generous support of this work. Thanks to Laura Johnston, Emily MacKinnon, Karen Segal, and Brendan Ward for their research assistance on this article.
Footnotes
1. R v Ewanchuk, [1999] 1 SCR 330, 169 DLR (4th) 193.
2. Women account for 87 percent of reports of sexual assault to police, according to data from the Uniform Crime Reporting Survey. Tina Hotton Mahony, “Women and the Criminal Justice System” in Statistics Canada, Women in Canada: A Gender-Based Statistical Report, 6th edition (Ottawa: Minister of Industry, 2011), online: Statistics Canada <http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11416-eng.htm>;. In the General Social Survey, which measures self-reported victimization regardless of reporting to police, 70 percent of reported sexual assault victims were female. Samuel Perrault and Shannon Brennan, “Criminal Victimization in Canada, 2009” (2010) 30 Juristat, online: Statistics Canada <http://www.statcan.gc.ca/pub/85-002-x/2010002/article/11340-eng.htm>;.
3. Constance Backhouse, Carnal Crimes: Sexual Assault Law in Canada 1900–1975 (Toronto: Irwin Law, 2008). See also Rosemary C Hunter, “Gender in Evidence: Masculine Norms vs Feminist Reforms” (1996) 19 Harvard Women’s Law Journal 127; Ann Althouse, “The Lying Woman, the Devious Prostitute, and Other Stories from the Evidence Casebook” (1993–4) 88 Northwestern University Law Review 914; and Christine Boyle, “Reasonable Doubt in Credibility Contests: Sexual Assault and Sexual Equality” (2009) 13 International Journal of Evidence and Proof 269.
4. As in our previous work, we use the language of women with “mental disabilities” because this is the language used in the equality rights guarantee of section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11. In the context of competence to testify, most of the cases deal with individuals with intellectual disabilities, although some psychiatric disabilities may also lead to issues of competence being raised. We recognize that there are problems with any choice of language in this respect. See Richard Devlin and Dianne Pothier, “Introduction: Toward a Critical Theory of Dis-Citizenship” in Dianne Pothier and Richard Devlin, eds, Critical Disability Theory: Essays in Philosophy, Politics, Policy and Law (Vancouver: UBC Press, 2006) 1 at 3–7.
5. There are few recent empirical studies on the incidence of sexual assault against women with mental disabilities. Most studies rely on work from the 1990s, such as Roeher Institute, No More Victims: A Manual to Guide Counselors and Social Workers in Addressing the Sexual Abuse of People with a Mental Handicap (North York: Roeher Institute, 1992); Roeher Institute, Harm’s Way: The Many Faces of Violence and Abuse against Persons with Disabilities (North York: Roeher Institute, 1995). What recent work there is supports the conclusion that the incidence of sexual assault against women with mental disabilities is higher than the incidence against women generally, although some of this work does not distinguish between mental and physical disability. A recent report from the Canadian Centre for Justice Statistics, for example, demonstrates that persons with disabilities generally report sexual assault at a rate about two-and-a-half times that of respondents without disabilities. Samuel Perreault, Criminal Victimization and Health: A Profile of Victimization among Persons with Activity Limitations or Other Health Problems, Canadian Centre for Justice Statistics Profile Series (Ottawa: Minister of Industry, 2009) at 8, online: Statistics Canada <http://www.statcan.gc.ca/pub/85f0033m/85f0033m2009021-eng.htm>.
6. See, for example, Janine Benedet and Isabel Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken Belief ” (2007) 52 McGill Law Journal 243 and Janine Benedet and Isabel Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues” (2007) 52 McGill Law Journal 515.
8. R v DAI, 2012 SCC 5, [2012] 1 SCR 149 [DAI].
9. See, for example, Dianne Pothier, “On Not ‘Getting It’ ” (1994–5) 33 Alberta Law Review 817.
10. See Dianne Pothier, “How Did We Get Here? Setting the Standard for the Duty to Accommodate” (2009) 59 University of New Brunswick Law Journal 95 at 104–7.
11. Ibid at 104, citing Dianne Pothier, “Tackling Disability Discrimination at Work: Toward a Systemic Approach” (revised version of a paper presented to the Conference “The Charter and Human Rights at Work: Twenty-Five Years Later,” University of Western Ontario, London, Ontario, 29 October 2007) at 18–19.
12. R v Salituro, [1991] 3 SCR 654, 131 NR 161. Limitations on compellability for the prosecution remain. Canada Evidence Act, RSC 1985, c C-5, s 4 [Canada Evidence Act]. Spouses are generally competent to testify for the defence under section 4(1). They are competent and compellable for the prosecution under sections 4(2) and 4(4) for specified Youth Criminal Justice Act and Criminal Code offences, although section 4(3) bans compelling disclosure with respect to communications between spouses during marriage. Section 4(5) retains the common law exceptions to the spousal incompetency rule, which allow the spouse to testify where the charge involves the “person, liberty or health” of the witness spouse. See R v Couture, 2007 SCC 28 at paras 2 and 38, [2007] 2 SCR 517.
13. Nicholas Bala et al, “The Competency of Children to Testify: Psychological Research Informing Canadian Law Reform” (2010) 18 International Journal of Children’s Rights 53 at 54–5.
14. Canada Evidence Act, SC 1893, c 31, s 25.
15. Ibid.
16. This instruction on corroboration was also applied to all adult women who made complaints of rape prior to 1983 even when testifying under oath. The common law corroboration requirement was repealed in section 274 of the Criminal Code, RSC 1985, c C-46.
17. Committee on Sexual Offences against Children and Youth, Sexual Offences against Children in Canada: Report of the Committee on Sexual Offences against Children and Youth (Ottawa: Supply and Services Canada, 1984). Criminal Code, supranote 16.
18. Canada Evidence Act, supranote 12, s 16, as amended by An Act to Amend the Criminal Code and the Canada Evidence Act, SC 1987, c 24, s 18.
19. Canada Evidence Act, supranote 12, s 16, as amended by An Act to Amend the Criminal Code and the Canada Evidence Act, supranote 18, reads as follows:
16
1 Where a proposed witness is a person under fourteen years of age or a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
a whether the person understands the nature of an oath or a solemn affirmation; and
b whether the person is able to communicate the evidence.
2 A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.
3 A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may testify on promising to tell the truth.
4 A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.
5 A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.
20. There is very little jurisprudence considering the requirements under section 16 as applied to adults with mental disabilities. The cases that do exist arise almost exclusively in the context of sexual assault. We were able to find only one criminal case (arson) not involving sexual assault where section 16 was applied to a Crown witness: R v Snarr (1995), 32 CCLI (2d) 273, 29 WCB (2d) 155 (Ont Ct J). This finding is significant. It might be argued that this predominance of cases in the sexual assault context is not surprising because it is in these cases that knocking out the witness as incompetent effectively brings the prosecution to an end. However, one would expect that it would be to the defence’s advantage in any case where a Crown witness has mental disabilities (for example, a physical assault by a caregiver) to raise the question of competence. We were not able to find any such cases. We are concerned that this disparity is evidence once again that women who complain of sexual assault are viewed with particular suspicion.
21. R v McGovern (1993), 88 Man R (2d) 18, 22 CR (4th) 359 (CA) [McGovern].
22. Ibid at paras 8–9, leave to appeal to SCC denied, [1993] SCCA No 372. Even if the witness could satisfy these requirements, judges have often instructed the jury that unsworn evidence is to be given less weight. R v Kendall, [1962] SCR 469 at 473, 132 CCC 216; R v Horsburgh, [1967] SCR 746 at 754, 63 DLR (2d) 699. This rule was codified for child witnesses in section 586 of the Criminal Code, which prevented a conviction on the unsworn evidence of a child in the absence of corroboration. R v B(G), (1988) 65 Sask R 134, 4 WCB (2d) 280 (CA). This section was repealed in 1988 (An Act to Amend the Criminal Code and the Canada Evidence Act, supranote 18). The practice of treating unsworn evidence as deserving of less weight has since been rejected. See, for example, R v D(RR) (1989), 72 Sask R 142, 47 CCC (3d) 97 (CA) at para 9; and McGovern, supranote 21 at para 19.
23. R v Farley (1995), 23 OR (3d) 445, 40 CR (4th) 190 (CA) [Farley].
24. Ibid at paras 26–8.
25. Ibid at paras 34–5.
26. Ibid at para 17.
27. R v Khan, [1990] 2 SCR 531, 79 CR (3d) 1 [Khan].
29. Ibid at paras 2, 7, 13–14, and 18–22.
30. R v Ferguson (1996), 112 CCC (3d) 342, 85 BCAC 33 (CA).
31. Ibid at paras 8, 12.
32. House of Commons, Evidence of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, 38th Parl, 1st Sess, No 26 (24 March 2005).
33. Canada Evidence Act, supranote 12, s 16.1, as amended by An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act, SC 2005, c 32, s 27.
35. R v I(D), 78 WCB (2d) 379, 2008 CarswellOnt 2637 (Ont Sup Ct J).
36. RvDI, 77 WCB (2d) 246, [2008] OJ No 1824 at para 57 (Ont Sup Ct J) [DI, Ruling on Hearsay Admissibility]. He also found that evidence that witnesses had seen in the accused’s possession (a photograph of K with her shirt raised so as to show her breasts) was not sufficiently reliable to act as corroboration of the hearsay evidence (at para 44).
37. R v I(D), 2010 ONCA 133, 73 CR(6th) 50.
38. Ibid at paras 20, 21.
39. Ibid at paras 23, 25. The Crown never sought to have the complainant testify under oath, and thus her religious education should not be relevant. Implicit in these questions is the problematic assumption that someone who has been to church or received religious education is more trustworthy or reliable as a witness.
40. Ibid.
41. Ibid at para 11.
43. Ibid at 280–1 [emphasis in original].
44. Ibid at 232–3, 235, 238, 271–2.
45. Ibid at 238, 272.
46. Ibid at para 41 (Factum of the Appellant).
47. Ibid at paras 67, 85–6.
48. Ibid (Factum of the Intervener Women’s Legal Education and Action Fund and Disabled Women’s Network Canada), online: LEAF <http://leaf.ca/wordpress/wp-content/uploads/2011/05/2011-R.-vs.DI-Final-Factum.pdf>.
49. Deschamps, Abella, Charron, Rothstein, and Cromwell JJ concurring.
51. Ibid at paras 27–8.
52. The majority rejected the Ontario Court of Appeal decision in Farley, supranote 23, which incorporated the test for child witnesses from the pre-1987 version of section 16(3) into the current legislation.
54. Ibid at para 36.
55. Ibid at para 41.
56. Fish and LeBel JJ concurring.
58. Ibid at para 121.
59. Ibid at para 122.
60. Ibid at para 110.
61. Ibid at paras 128–9.
62. Ibid at para 16.
63. Janine Benedet and Isabel Grant, “Taking the Stand: Access to Justice for Witnesses with Mental Disabilities in Sexual Assault Cases” (2013) Osgoode Hall Law Journal [forthcoming].
64. Mark R Kebbell, Christopher Hatton, and Shane D Johnson, “Witnesses with Intellectual Disabilities in Court: What Questions Are Asked and What Influence Do They Have?” (2004) 9 Legal and Criminological Psychology 23.
65. Ibid at 32.
66. Carol K Sigelman et al, “When in Doubt Say Yes: Acquiescence in Interviews with Mentally Retarded Persons” (1981) 19 Mental Retardation 53.
69. In Farley, supranote 23, the witness referred to the accused by the nickname “Sunny,” a name not known to the judge, who misheard it as “Sunday.”
70. The majority rejects Khan, supranote 27, as binding because it dealt with a child witness under the previous legislation.
72. Ibid at para 113 [emphasis in original].
73. Roger J Stancliffe and K Charlie Lakin, “Independent Living” in Samuel L Odom et al (eds), Handbook of Developmental Disabilities (New York: Guilford Press, 2007) 429 at 438 (noting that some people with developmental disabilities reject benefits to which they are entitled in order to avoid stigma).
74. She is described as having an intelligence level that would put her in the age category of about three to six with an IQ of thirty-five to forty-eight (DAI, supranote 8 at 256 (volume 1, evidence, Dr K, competency inquiry, AR). This is based on the defence expert’s observations of K on the stand and his review of her school records.
77. Ibid at para 52.
78. Ibid at para 128.
79. See, for example, Carol L Brown and R Edward Geiselman, “Eyewitness Testimony of Mentally Retarded: Effect of the Cognitive Interview” (1990) 6 Journal of Police and Criminal Psychology 14; Denise C Valenti-Hein and Linda D Schwartz, “Witness Competency in People with Mental Retardation: Implications for Prosecution of Sexual Abuse” (1993) 11 Sexuality and Disability 287; Louise Ellison, “The Mosaic Art?: Cross-Examination and the Vulnerable Witness” (2001) 21 Legal Studies 353.
80. Kristine I Ericson and Nitza B Perlman, “Knowledge of Legal Terminology and Court Proceedings in Adults with Developmental Disabilities” (2001) 25 Law and Human Behavior 529 at 531.
81. This tendency to infantilize women with mental disabilities is particularly damaging in the sexual assault context but may also have implications in other contexts such as, for example, their capacity to marry or to raise children.
83. R v Harper, 2002 YKSC 18 at para 16, [2002] YJ No 38. See the trial judgment in R v Alsadi (27 July 2011), Vancouver 213734-2-C (BC Prov Ct), rev’d 2012 BCCA 183, 320 BCAC 149.
87. Ibid at para 9.
88. Of course, one should not assume this quality about experts qualified in the traditional manner either.
91. Ibid.
93. The Canada Evidence Act, supranote 12, s 16.1(8), provides that the evidence of a child witness given on a promise to tell the truth shall be given the same weight as if it were given under oath. This same equation should apply to all witnesses.
94. We acknowledge also that the same credibility problems may exist for an accused or a defence witness who has a mental disability, thus potentially increasing the possibility of a wrongful conviction. We would argue that all witnesses who have otherwise relevant and admissible evidence must be treated equally, without discrimination on the basis of mental disability.
