Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.
This case concerned access to justice for sexual assault complainants with intellectual disabilities.
LEAF, in partnership with DisAbled Women’s Network Canada (DAWN), intervened before the Supreme Court of Canada.
K.B., an adult with an intellectual disability, reported to a teacher that her step-father D.A.I. played “games” with her that involved him touching her sexually. She gave a videotaped statement to the police and she gave evidence at the preliminary inquiry, via her video statement to police, which she was cross examined on.
At trial, D.A.I. challenged the complainant’s competence to testify. Under the Canada Evidence Act, if an adult witness cannot understand the meaning of an oath or solemn affirmation, that person can still testify provided they can communicate the evidence and they promise to tell the truth. The trial judge concluded that K.B. did not show an understanding of her duty to tell the truth. He also excluded the complainant’s out-of-court statements to police and her teacher, finding them to be unreliable and holding that admitting them would impact D.A.I.’s right to a fair trial. As a result, D.A.I. was acquitted. The Court of Appeal for Ontario affirmed the acquittal. The Crown appealed to the Supreme Court.
LEAF and DAWN argued that complainants with mental disabilities should only be required to promise to tell the truth. To require more would prevent women with mental disabilities from accessing justice, despite the pervasiveness of sexual violence against women with disabilities. This would worsen their victimization, devalue them as human beings, and allow their abusers to continue their abuse. Excluding their evidence would also perpetuate stereotypes that women with disabilities are more untrustworthy than other witnesses.
A majority of the Supreme Court held that complainants with disabilities who could communicate their evidence only needed to promise to tell the truth to be able to testify. As a result, the majority allowed the Crown’s appeal and ordered a new trial for D.A.I.
LEAF is grateful to Joanna Birenbaum, counsel in this case, as well as Nadia Effendi, Ottawa agent for LEAF and DAWN.
Download the factum here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].