Supreme Court ruling gives Canadians with mental disabilities full equality in court
TheStar.com – opinion/editorialopinion
Published On Tue Feb 14 2012. By Carol Goar, Editorial Board
The law is finally fair. In a landmark judgment last week, the Supreme Court ruled that Canadians with mental disabilities have the same right to testify in court as everyone else.
The tragedy is that it took so long to get this principle established — and that so many lives were blighted along the way.
It should have happened in 1985 when the equality provision of the Charter of Rights took effect. It says unequivocally: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”
But an older law, the Canada Evidence Act (passed in 1893), imposed restrictions on litigants with mental disabilities. It gave anyone charged with a criminal offence the right to challenge the competency of the accuser. The presiding judge would then examine the plaintiff to determine whether he or she understood the obligation to tell the truth. Those who failed this test would be denied the right to testify.
That was what happened to K.B., a 26-year-old woman believed to have a mental age between 3 and 6. She alleged she was repeatedly sexually assaulted by her mother’s partner at the time, a man identified in court documents as D.A.I. The Crown intended to put her on the witness stand to testify. It also intended to use the statements she made to her teacher to build its case.
The trial judge, Justice Colin McKinnon of the Ontario Superior Court, deemed the woman incompetent to give evidence. Although she knew it was wrong to tell a lie and had no trouble answering factual questions about her family, her age, her school and her daily routines, he was unsatisfied she grasped the difference between truth and falsity.
He disallowed her statements to her special education teacher and to the police, saying they “would seriously compromise the accused’s right to a fair trial.”
That left the Crown with nothing but the testimony of a family friend who said he found a Polaroid photo of K.B. with her breasts exposed in D.A.I.’s room; and her sister who said she had seen the accused touch K.B.’s breasts while she was in bed. It wasn’t nearly enough to get a conviction and the case collapsed. D.A.I. was acquitted. The ruling was affirmed by the Ontario Court of Appeal.
Determined to fight on, the Crown appealed to the Supreme Court and it agreed to review the case.
Its judgment, released last Friday, was written by Chief Justice Beverley McLachlin. “Those with mental disabilities are easy prey for sexual abusers,” she said. To prevent them from testifying because they cannot explain the nature of the obligation to tell the truth “is to exclude reliable and relevant evidence and make it impossible to bring to justice those charged with crimes against the mentally disabled.”
The court ordered D.A.I.’s acquittal be aside and a new trial conducted. It also said adults with mental disabilities should be subjected to no higher test of truthfulness than any other witness: Can they tell their story coherently and do they swear to tell the truth?
The ruling was not unanimous. Three of the nine justices wrote a dissenting opinion. “The majority judgment unacceptably dilutes the protection Parliament intended to provide an accused person,” they warned.
But their view, while acknowledged in the ruling, did not prevail. That means K.B. will finally get her day in court. It means other Canadians with intellectual challenges will have a clear right to testify. And it means one of the most damaging stereotypes of people with mental illness will lose its legitimacy in the courts.
This is a moment to celebrate. But it is also a poignant reminder of all the victims who were silenced and all the abusers who now walk free.