Rules ease for mentally disabled to testify
Previous test unfair, Supreme Court rules
The Supreme Court of Canada made the witness box more accessible for adults with mental disabilities on Friday, saying they are qualified to testify if they can tell their story and promise to tell the truth.
No longer are mentally challenged witnesses required to show, as a prerequisite for giving evidence, that they understand what it means to make a promise and the difference between telling the truth and telling a lie.
Denying alleged victims the right to testify on the grounds they cannot explain, in abstract or philosophical terms, the nature of an obligation to tell the truth would give an entire category of offenders immunity from their crimes and further marginalize already vulnerable victims of sexual predators, the court said in a 6-3 judgment.
“Sexual assault is an evil,” said Chief Justice Beverley Mclachlin, writing for the majority. “Too frequently, its victims are the vulnerable in our society — children and the mentally handicapped.”
The decision is extremely important for people with disabilities, particularly women, said Joanna Birenbaum, litigation director for the Women’s Legal Education and Action Fund, an intervenor.
“If these women are unable to testify, their abusers can continue to prey on this vulnerable group . . . with impunity.”
But in a dissenting opinion, Justices Ian Binnie, Louis Lebel and Morris Fish accused the majority of watering down protections Parliament has provided to accused persons. A “mere mouthing” of the words “I promise” is an empty formality without further probing of whether a witness whose mental capacity is being challenged appreciates the concept of a moral duty to be honest, Binnie wrote.
At the centre of the case is a 26year-old Ottawa woman with the mental age of someone 3 to 6 years old. The Crown alleges the woman was repeatedly sexually assaulted by her mother’s partner.
The prosecution wanted to call her as a witness and there was a hearing to determine her ability to testify. While she was able to speak coherently about her age, the names of her current and former schools and teachers, she answered many questions with the words “I don’t know.”
Finding she had “no concept” of what promising to tell the truth means, the trial judge, Justice Colin Mckinnon, ruled the woman was incompetent to give evidence. As a result, the case collapsed and the partner was acquitted.
The top court set aside that acquittal Friday and ordered a new trial.
The majority said that by insisting witnesses show they understand the meaning of truth, lies and promises, lower courts have been misinterpreting a test set out in the Canada Evidence Act for deciding whether to allow testimony from people over 14 whose mental competency is at issue.
Until 2006, the test was the same as the one used for assessing the competency of children under 14.
But with growing concerns about child sexual abuse, there was worry the test would prevent some children from telling their stories. Parliament amended the legislation so children under 14 are now presumed competent.