Factum in the D.A.I. Case

File Number: 33657

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

HER MAJESTY THE QUEEN
Appellant

- and -

D.A.I. Respondent

- and -

WOMEN'S LEGAL EDUCATION AND ACTION FUND, DISABLED WOMEN'S NETWORK CANADA, PEOPLE FIRST OF CANADA, CANADIAN ASSOCIATION FOR COMMUNITY LIVING, CRIMINAL LAWYERS'ASSOCIATION (ONTARIO) and COUNCIL OF CANADIANS WITH DISABILITIES
Interveners

FACTUM OF THE INTERVENER
COUNCIL OF CANADIANS WITH DISABILITIES

Aikins, MacAulay & Thorvaldson LLP
30-360 Main Street
Winnipeg, MB R3C 4G1
David M. Wright / Helga D. Van Iderstine
Tel: (204) 957-4618
Fax: (204) 947-4276
dmwgaikins.com

Counsel for the Intervener Council of Canadians with Disabilities

Champ and Associates
43 Florence Street
Ottawa, ON K2P OW6 Anne Levesque
Tel: (613) 237-4740
Fax: (613) 232-2680
alevcsqueachamplaw.ca

Ottawa Agent for the Intervener Council of Canadians with Disabilities

TO: REGISTRAR OF THE SUPREEME COURT OF CANADA

AND TO:

Attorney General of Ontario
720 Bay Street, 10th floor
Toronto, ON M5G 2K1
Jamie C. Klukach
Tel: (416) 326-4588
Fax: (416) 326-4656
jamieklukach@jus.gov.on.ca

Counsel for the Appellant

Webber Schroeder Goldstein Abergel
116 Lisgar Street, Suite 200
Ottawa, ON K2P OC2

Howard L. Krongold
Tel: (613) 860-1449
Fax: (613) 235-8317
krongold@wsgalaw.com

Counsel for the Respondent

Burke-Robertson
70 Gloucester Street
Ottawa, ON K2P 0A2
Robert E. Houston, Q.C.
Tel: (613) 566-2058
Fax: (613) 235-4430
rhouston@burkerobertson.com

Ottawa Agent for the Appellant

Gowling Lafleur Henderson LLP
2600 – 160 Elgin Street
Box 466 Station D
Ottawa, ON KIP 1C3
Brian A. Crane, Q.C.
Tel: (613) 233-1781
Fax: (613) 563-9869
brian.crane@gowlings.com

Ottawa Agent for the Respondent

Women's Legal Education and Action Fund (LEAF)
703-60 St. Clair Ave. E.
Toronto, ON M4T 1N5
Joanna L. Birenbaum
Tel: (416) 595-7191, ext. 223
Fax: (416) 595-7191
Email: j.birenbaum@leaf.ca

Counsel for the Intervener
Women's Legal Education and Action Fund and DisAbled Women's Network Canada

Borden Ladner Gervais LLP
World Exchange Plaza
1100-100 Queen Street
Ottawa, ON KIP 1 J9
Nadia Effendi
Tel: (613) 237-5160
Fax: (613) 230-8842

Ottawa Agent for the Intervener
Women's Legal Education and Action Fund and DisAbled Women's Network Canada

Di Luca Copeland Davies LLP
100-116 Simcoe Street
Toronto, ON M5H 4E2

Joseph Di Luca
Tel: (416) 868-1825, ext.223
Fax: (416) 868-0269
jdiluca@dcdlaw.ca

Counsel for the Intervener
Criminal Lawyers' Association (Ontario)

Gowling Lafleur Henderson LLP
2600 – 160 Elgin Street
Box 466 Station D
Ottawa, ON KIP 1C3
Brian A. Crane, Q.C.
Tel: (613) 233-1781
Fax: (613) 563-9869
brian.cranen@gowlings.com

Ottawa Agent for the Intervener Criminal Lawyers' Association (Ontario)

File Number: 33657

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

HER MAJESTY THE QUEEN
Appellant

− and -

D.A.I.
Respondent

− and -

WOMEN'S LEGAL EDUCATION AND ACTION FUND, DISABLED WOMEN'S NETWORK CANADA, PEOPLE FIRST OF CANADA, CANADIAN ASSOCIATION FOR COMMUNITY LIVING, CRIMINAL LAWYERS' ASSOCIATION (ONTARIO) and COUNCIL OF CANADIANS WITH DISABILITIES
Interveners

FACTUM OF THE INTERVENER

COUNCIL OF CANADIANS WITH DISABILITIES

CONTENTS

• PART I: OVERVIEW & STATEMENT OF FACTS
  • Overview
  • Statement of facts
• PART II: POSITION WITH RESPECT TO QUESTIONS IN ISSUE
• PART III: ARGUMENT
  • The damaging and discriminatory impact of the lower courts' interpretation of section
  • UN Convention on the Rights of Persons with Disabilities
  • The presumption of conformity with international law
  • Equality rights and Charter values
  • The discriminatory rationale for the lower courts' interpretation
  • The practical difficulties with the lower courts' interpretation
  • The trier of fact should have all useful evidence
  • Summary
• PART IV: SUBMMISSION ON COSTS
• PART V: ORDER REQUESTED
• PART VI: AUTHORITIES CITED
• PART VII: STATUTORY PROVISIONS

PART I: OVERVIEW & STATEMENT OF FACTS

Overview

"Plain sense and reason would obviously suggest that any living witness who could throw light upon a fact in issue should be heard to state what he knows, subject always to such observations as may arise as to his means of knowledge or his disposition to tell the truth."
- 1853, Common Law Practice Commissioners, Second Report, p. 10[1]

1. This Court is being asked to consider whether people with intellectual disabilities should be permitted to testify in court. More specifically, must people with intellectual disabilities demonstrate an understanding of the concept of a "promise to tell the truth" as a precondition to testifying.

2. An interpretation of section 16 of the Canada Evidence Act which requires persons with intellectual disabilities to pass a test as a precondition to testifying would:

a. needlessly deny people with intellectual disabilities the right to testify as complainant, accused, plaintiff, defendant or witness;
b. create an overwhelming barrier to the reporting and prosecution of offences against people with intellectual disabilities and render people with intellectual disabilities even more vulnerable to violence and abuse;
c. contravene Canada's obligations under the Convention on the Rights of Persons with Disabilities;
d. contravene the equality rights of people with disabilities and Charter values;
e. promulgate the disparaging myth that people with intellectual disabilities are less likely or unable to tell the truth; and
f. deprive triers of fact of potentially relevant evidence.

3. The United Nations Convention on the Rights of Persons with Disabilities (the "Convention") obliges Canada to facilitate the effective role of persons with disabilities as direct participants in all legal proceedings, including as witnesses. This appeal raises for the first time the impact of the Convention on the interpretation of legislation affecting people with disabilities, a matter of significant interest and concern to people with disabilities.

Statement of facts

4. The Intervener Council of Canadians with Disabilities ("CCD") offers no comments on the facts as outlined by the Appellant and Respondent.

PART II: POSITION WITH RESPECT TO QUESTIONS IN ISSUE

5. CCD submits that persons with intellectual disabilities are not required to demonstrate an understanding of the obligation to testify truthfully before being permitted to testify under section 16 of the Canada Evidence Act. CCD takes no position with respect to the Appellant's questions two and three.

PART III: ARGUMENT

The damaging and discriminatory impact of the lower courts' interpretation of section 16

6. Access to justice and the right to participate in legal proceedings is a basic right and fundamental tenet of the legal system. Being deprived of the right to testify would have a profoundly negative impact on any person seeking justice or participation in the court process.

7. People with disabilities already face many hurdles to their participation in legal proceedings as complainant, accused, witness or party to a civil proceeding. Prejudice, poverty, social isolation and functional impairment all create barriers to equal and meaningful participation in legal proceedings. The lower courts' interpretation of section 16 creates an additional and more fundamental barrier.

8. People with intellectual disabilities suffer a disproportionate rate of violence and assault and face unique barriers and challenges in the reporting, investigation and prosecution of offences against them. Women with intellectual disabilities, in particular, suffer significantly higher rates of sexual assault than others. Isolation and dependence on caregivers create the circumstances for violence, exploitation or abuse to be observed only by the perpetrator and victim.

9. Precluding people with intellectual disabilities from testifying makes the prosecution of offences more difficult. Indeed, offenses for which there is no other witness may be impossible to prosecute without the evidence of the complainant. It also sends the clear message that people with intellectual disabilities should not bother reporting crimes as their evidence will not be accepted. Thus, the lower courts' interpretation significantly heightens the vulnerability of people with intellectual disabilities.

10. The lower courts' interpretation of section 16 perpetuates the damaging myth that people with intellectual disabilities are inevitably unable or unlikely to tell the truth. Equating intellectual disability with "moral incompetency" profoundly offends human dignity and sends a negative message as to the worthiness of persons with intellectual disabilities. That this proposition is propounded by the courts is particularly damaging.

UN Convention on the Rights of Persons with Disabilities

11. The Convention on the Rights of Persons with Disabilities was adopted by the United Nations on December 13, 2006 and entered into force on May 3, 2008. Canada ratified the Convention on March 11, 2010. To date, it has been signed by 147 countries and ratified by 99 countries.[2]

12. The adoption of the Convention and its ratification by Canada were marked by persons with disabilities as pivotal achievements in the promotion of the rights of Canadians with disabilities. The manner in which the Convention influences the interpretation of legislation affecting people with disabilities is a matter of considerable interest to Canadians with disabilities.

13. The Convention expressly obliges Canada to facilitate the effective role of persons with disabilities as direct participants in all legal proceedings, including as witnesses. Article 13.1 provides:

Article 13 – Access to justice
1. State Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. [Emphasis added.]

14. Article 16 of the Convention requires party states to enact effective legislation to ensure that instances of exploitation, violence and abuse are identified, investigated and, where appropriate, prosecuted.

15. The Convention clearly obliges Canada to support and protect the legal rights and fundamental freedoms of people with disabilities. Other relevant provisions include:

Preamble (q) – women and girls with disabilities are often at greater risk of violence, injury or abuse

Article 1 – purpose of the Convention is to promote, protect and ensure full and equal enjoyment of all human rights and fundamental freedoms

"Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others."

Article 4 – obligation to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities

Article 6 – women with disabilities

Article 12 – equal recognition before the law

16. By preventing persons with disabilities from testifying, the lower courts' interpretation of section 16 of the Canada Evidence Act[3] places Canada in direct contravention of its obligation to ensure that people with disabilities can testify in legal proceedings. Precluding persons with intellectual disabilities from testifying against their alleged abusers impairs Canada's ability to meet its obligation to enact effective legislation to ensure the identification and prosecution of exploitation, violence or abuse. Precluding people with intellectual disabilities from testifying is contrary to the commitment to equal recognition before the law.

The presumption of conformity with international law

17. This Court has endorsed the well-established principle that domestic legislation will be presumed to conform to international law. Domestic law should only be construed in a manner inconsistent with international obligations if the wording of the statute unambiguously compels that result.[4]

18. The presumption of conformity applies to treaty obligations, including commitments under human rights conventions, The presumption applies to the interpretation of statute enacted prior to the assumption of an international obligation.[5]

19. Section 16 does not unambiguously require an interpretation which precludes people with intellectual disabilities from testifying. To the contrary, the wording of subsection 16(3) makes it clear that it was intended to allow people with intellectual disabilities to testify in court. The lower courts' interpretation turns section 16 on its head and precludes, rather than facilitates, the right to testify.

20. Subsection 16(3) provides that persons who are able to communicate their evidence but are unable to understand the nature of an oath or affirmation may testify on promising to tell the truth. For laypersons, the distinction between the concepts of "oath", "affirmation" and "promise to tell the truth" is slight. Presumably, the ability to articulate an understanding of the "promise to tell the truth" would qualify one to testify by way of affirmation. Thus, the lower courts' interpretation eliminates the intended benefit of section 16(3), a benefit that is critical to fulfilling Canada's international obligations.

Equality rights and Charter values

21. When a statutory provision is ambiguous and two readings are equally plausible, the interpretation which accords with Charter values is to be preferred.[6]

22. In R. v. Salituro, this Court referenced Charter values in making appropriate adjustments to the common law rule that the wife of an accused person is not a competent witness for the prosecution. Justice Iacobucci wrote:

Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely.[7]

23. While this is a case of statutory interpretation, it involves a judicially imposed test of competence which is not expressly provided for by the legislation. CCD submits that, in this case, the Court ought to apply the same Charter values lens that it would in developing the common law.

24. The lower courts' interpretation of section 16 is not in accord with equality rights and values of section 15 of The Charter of Rights and Freedoms (the "Charter").[8]

25. In Eldridge v. British Columbia (Attorney General), this Court recognized the profound disadvantage at which society has put people with disabilities.

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions … This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the "equal concern, respect and consideration" that s. 15(1) of the Charter demands…[9]

26. In Law v. Canada (Minister of Employment and Immigration ("Law"), the Court recognized the profoundly negative impact of differential treatment based on and perpetuating negative stereotypes.[10]

27. In Law and Egan v. Canada, this Court has recognized that the calibre of differential treatment depends in part on the extent to which it restricts access to fundamental social institutions.

… the discriminatory calibre of differential treatment cannot be fully appreciated without evaluating not only the economic but also the constitutional and societal significance attributed to the interest or interests adversely affected by the legislation in question. Moreover, it is relevant to consider whether the distinction restricts access to a fundamental social institution, or affects "a basic aspect of full membership in Canadian society", or "constitute[s] a complete non-recognition of a particular group".[11]

28. In Andrews v. Law Society (British Columbia), this Court described the purpose of section 15(1) of the Charter as follows:

It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.[12]

29. There can be no more fundamental societal institution than the courts. Exclusion from participation in proceedings in that institution is differential treatment of the highest calibre. The profoundly negative impact on those excluded from testifying is discussed previously in this factum.

30. Equating intellectual disability with "moral incompetency" perpetuates a profoundly negative stereotype about persons with disabilities, promotes inequality and sends the message that persons with intellectual disabilities are not deserving of respect, concern or consideration. In specific cases, the imposition of the test and exclusion from testifying offends dignity and further perpetuates the view that people with disabilities are less capable, valued and deserving. Judicial sanction of that message is particularly damaging.

31. A provision so clearly designed to facilitate access to the courts, should not be interpreted in a manner contrary to Charter values. The courts ought not read into section 16 a test and precondition to testifying which is so clearly inconsistent with Charter values.

The discriminatory rationale for the lower courts' interpretation

32. The stated rationale for the lower courts' interpretation is that absent an ability to demonstrate an understanding of the concepts of promise and truth, a promise to tell the truth would be "meaningless".[13]

33. The courts do not inquire into the meaningfulness of the oath, affirmation or promise of any other witness. Even convicted perjurers and persons who disclaim any social duty to tell the truth are permitted to testify without prior inquiry as to whether the oath or affirmation has any meaning to them.[14] Thus, unless one's mental capacity is challenged, "meaningfulness" of the oath or affirmation is either not required or not equated with truthfulness.

34. The lower courts' interpretation rests on the assumption that persons with intellectual disabilities are more likely to testify unreliably. There is nothing to substantiate that myth.

35. In any event, concern regarding the veracity of the evidence of persons with intellectual disabilities can be assessed by the trier of fact, as it is for any other witness. There is no reason to conclude that a trier of fact is unable to properly weigh and consider the evidence of people with intellectual disabilities. To the extent the concern is that jurors may hold stereotypical views or biases, those stereotypes are likely to work, against the witness. Precluding the witness from testifying does not address that concern but punishes the witness for the perceived shortcomings of jurors.

36. The US Federal Court Rules of Evidence eliminate "mental and moral qualifications" as a prerequisite to testifying in U.S. federal court proceedings. Rule 601 provides, in relevant part:

Rule 601. General Rule of competency
Every person is competent to be a witness except as otherwise provided in these rules …[15]

37. The notes of the US Advisory Committee on Rules state, in part:

No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application… A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence.[16] [Emphasis added.]

38. In the decision on appeal, the Court of Appeal acknowledged that there is no reason to believe that the ability to articulate an understanding of certain concepts is relevant to a person's competence to tell the court what happened.[17]

39. In the circumstances, it is difficult to discern any principled rationale for an interpretation contrary to the equality rights of people with disabilities and Canada's international obligations.

Practical difficulties with the lower courts' interpretation

40. The authors of Wigmore on Evidence support abandoning mental incapacity as a precondition to testifying. The Wigmore authors state, in part:

The tendency of modern times is to abandon all attempts to distinguish between incapacity which affects only the degree of credibility and incapacity which excludes the witness entirely. The whole question is one of degree only, and the attempt to measure degrees and to define that point at which total incredibility ceases and credibility begins is an attempt to discover the intangible.[18] [Emphasis added.]

41. The problems associated with the lower courts' interpretation of section 16 have been recognized by Canadian courts. In R. v. J.Z.S., the British Columbia Court of Appeal described the impact of the "rigid pre-testimonial requirements" as follows:

[Section 16.1] discards the imposition of rigid pre-testimonial requirements which often prevented a child from testifying because of their inability to articulate an understanding of abstract concepts that many adults have difficulty explaining.[19] [Emphasis added.]

42. To exclude people whose mental capacity is challenged from testifying on the basis of an inability to do something that many other adults would have difficulty doing is discriminatory and contrary to Canada's international obligations and Charter values.

The trier of fact should have all useful evidence

43. Common sense and reason suggest that the trier of fact should hear from all those who have information relevant to the matters at issue. The 1853 Statement of the Common Law Practice Commissioners which begins this factum confirms that this is not a novel proposition.[20] People with intellectual disabilities have equal right to fair hearings in which all relevant evidence is available.

Summary

44. Precluding people with intellectual disabilities from testifying has a profoundly negative impact, puts Canada offside its international obligations, contravenes the Charter rights of persons with disabilities and has no principled justification.

PART IV: SUBMISSION ON COSTS

45. CCD does not seek costs and submits that costs should not be ordered against it.

PART V: ORDER REQUESTED

46. CCD requests the right to make an oral submission of up to 15 minutes at the hearing of the appeal.

All of which is respectfully submitted on this day of April, 2011

David M. Wright
Aikins, MacAulay & Thorvaldson LLP
30-360 Main Street
Winnipeg, MB R3C 4G1
Tel: (204) 957-4618
Fax: (204) 947-4276

Helga D. Van Iderstine
Aikins, MacAulay & Thorvaldson LLP
30-360 Main Street
Winnipeg, MB R3C 4G1
Tel: (204) 957-4679
Fax: (204) 947-4268

Counsel for the Intervener
Council of Canadians with Disabilities

Helga Anne Levesque
Champ and Associates
43 Florence Street
Ottawa, Ontario K2P OW6
Tel: 613-237-4740
Fax: 613-232-2680

Ottawa Agent for the Intervener
Council of Canadians with Disabilities

PART VI: AUTHORITIES CITED

Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143, para. 28

Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, para.

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, para. 18

Egan v. Canada, [1995] 2 S.C.R. 513, para. 27

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, para. 25

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, para. 26, 27

R. v. Farley (1995), 23 O.R. (3d) 445 (C.A.), para. 32, 33

R. v. Hape, [2007] 2 S.C.R. 292, para. 17

R. v. J.Z.S., 2008 BCCA 401; affirmed [2010] 1 S.C.R. 3, para. 41

R. v. Salituro, [1991] 3 S.C.R. 654, para. 22

R. v. Walsh, [1978] O.J. No. 1377 (C.A.), para. 33

PART VII: STATUTORY PROVISIONS & OTHER SOURCES

Statute

Canada Evidence Act, R.S.C., 1985, c. C-5, s. 21

Canadian Charter of Rights and Freedoms, s. 15 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, para. 21-28

Federal Rules of Evidence, Fed.R..Evid. 601, para. 36, 37

Sources

Convention on the Rights of Persons with Disabilities, 30 March 2007, para. 2, 3, 11-16

Canada Treaty Information, treaty-accord.gc.ca, para. 1

James H. Chadbourn, ed., Wigmore on Evidence (Toronto: Little, Brown & Company, 1979) vol. 2, para. 40, 4

Common Law Practice Commission (Second Report), 1853 at 10 cited in James H. Chadbourn, ed., Wigmore on Evidence (Toronto: Little, Brown & Company, 1979) vol. 2 at 709, FN 2.

• [1] Common Law Practice Commission (Second Report), 1853 at 10 cited in James H. Chadbourn, ed., Wigmore on Evidence (Toronto: Little, Brown & Company, 1979) vol. 2 at 709, FN 2.
• [2] Canada Treaty Information, treaty-accord.gc.ca.
• [3] Canada Evidence Act, R.S.C., 1985, c. C-5, s. 16.
• [4] R. v. Hape, [2007] 2 S.C.R. 292 at para. 53.
• [5] Ibid at para. 54; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 at paras. 31-33.
• [6] Application under s.83.28 of the Criminal Code (Re) [2004] S.C.R.0 248 at para. 35.
• [7] R. v. Salituro, [19911 3 S.C.R. 654 at para. 52.
• [8] Canadian Charter of Rights and Freedoms, s. 15 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
• [9] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 56.
• [10] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 88.
• [11] Ibid. at para. 74; Egan v. Canada, [1995] 2 S.C.R. 513 at para. 4.
• [12] Andrews v. Law Society (British Columbia), [ 1989] 1 S.C.R. 143 at para. 16.
• [13] R. v. Farley (1995), 23 O.R. (3d) 445 (C.A.) at para. 22.
• [14] Ibid. at para. 25; R. v. Walsh, [ 1978] O.J. No. 1377 (C.A.)
• [15] Federal Rules of Evidence, Fed.R.Evid. 601
• [16] Federal Rules of Evidence, Fed.R.Evid. 601 advisory comm.
• [17] R. v. D.I., 2010 ONCA 133 at para. 40.
• [18] James H. Chadbourn, ed., Wigmore on Evidence (Toronto: Little, Brown & Company, 1979) at s. 501, 509.
• [19] R. v. J.Z.S., 2008 BCCA 401 at para. 53; affirmed [2010] 1 S.C.R. 3
• [20] Supra note 1.