{"id":5657,"date":"2011-05-13T16:11:16","date_gmt":"2011-05-13T20:11:16","guid":{"rendered":"https:\/\/www.leaf.ca\/?post_type=mediareleases&p=2097"},"modified":"2020-10-22T17:33:20","modified_gmt":"2020-10-22T21:33:20","slug":"leaf-and-dawn-rafh-intervene-in-r-v-dai-at-scc","status":"publish","type":"news","link":"https:\/\/www.leaf.ca\/fr\/news\/leaf-and-dawn-rafh-intervene-in-r-v-dai-at-scc\/","title":{"rendered":"Access to Justice for Sexual Assault Complainants with Intellectual Disabilities"},"content":{"rendered":"\n

LEAF and DAWN-RAFH Canada <\/strong>Intervene in R. v. D.A.I. at SCC<\/strong><\/p>\n\n\n\n

 May 13, 2011, Toronto<\/b> – On Tuesday May 17, 2011, LEAF and the DisAbled Women’s Network Canada (DAWN-RAFH Canada), will intervene in the Supreme Court of Canada case of R. v. D.A.I.<\/i><\/p>\n\n\n\n

\u00ab\u00a0At stake in this appeal is whether women with mental disabilities, who are among the most vulnerable women in our society, have access to justice when we are sexually abused\u00a0\u00bb says DAWN-RAFH Canada President Carmela Hutchison.<\/p>\n\n\n\n

The case involves an intellectually disabled woman (K.B.) who reported to a teacher that her step-father played \u00ab\u00a0games\u00a0\u00bb with her, which included touching her genitals and breasts.   The evidence also revealed that the accused had a photograph of the complainant bare-breasted, stored in a trunk along with another pornographic photograph.  The accused alleges that the photograph was taken innocently.<\/p>\n\n\n\n

K.B. made a statement to the police and testified at the preliminary inquiry.  At trial, her competence to testify was successfully challenged.  The Court held that K.B. was unable to adequately explain the meaning of abstract concepts like \u00ab\u00a0truth\u00a0\u00bb, \u00ab\u00a0lie\u00a0\u00bb and \u00ab\u00a0promise\u00a0\u00bb.   For example, she was asked \u00ab\u00a0what do you think about the truth\u00a0\u00bb, \u00ab\u00a0What’s a promise\u00a0\u00bb and \u00ab\u00a0If you tell big lies will you go to jail\u00a0\u00bb.  K.B.’s evidence was excluded.  The trial proceeded without her evidence. The accused was acquitted.<\/p>\n\n\n\n

\u00ab\u00a0Women with intellectual and cognitive disabilities experience staggering rates of sexual assault\u00a0\u00bb explains Hutchison, \u00ab\u00a0we are seen as easy targets.  Abusers, who are frequently caregivers, believe that disabled women are powerless to complain or will not be believed even if we do complain.  It is essential that the Courts hear the testimony of disabled women.  This is case is about the most basic right of being heard.\u00a0\u00bb<\/p>\n\n\n\n

The legal question before the Court is how to interpret s.16(3) of the Canada Evidence Act <\/i>which permits witnesses who can \u00ab\u00a0communicate\u00a0\u00bb the evidence but are unable to understand an \u00ab\u00a0oath\u00a0\u00bb or \u00ab\u00a0affirmation\u00a0\u00bb, to testify  unsworn on a \u00ab\u00a0promise to tell the truth\u00a0\u00bb.  Lower courts have held that the promise to tell the truth requires an inquiry into whether the witness demonstrates an understanding of promise, truth and falsehood.<\/p>\n\n\n\n

\u00ab\u00a0It is important to understand\u00a0\u00bb explains LEAF Legal Director Joanna Birenbaum, \u00ab\u00a0that it is only the already disadvantaged category of witnesses whose competence is challenged who must answer questions about their understanding of the duty to tell the truth.  No other category of witness is required to do so. Not even convicted perjurers are probed before taking the stand on whether they feel bound to tell the truth.  LEAF-DAWN argue that there is no statutory or other basis for imposing this unique and unfair burden only on persons with mental disabilities\u00a0\u00bb.<\/p>\n\n\n\n

LEAF-DAWN’s factum argues that the judicial interpretation of \u00ab\u00a0the promise to tell the truth\u00a0\u00bb as requiring something more than simply \u00ab\u00a0I promise\u00a0\u00bb will \u00ab\u00a0have a highly gendered impact and will effectively exclude the viva voce <\/i>evidence of sexual abuse\u00a0\u00bb.  LEAF-DAWN argue that the inquiry is informed by discriminatory stereotypes of persons with mental disabilities, and particularly women who report sexual assault, as inherently untrustworthy.<\/p>\n\n\n\n

The factum states that \u00ab\u00a0the lower court’s interpretation of s.16(3) will reinforce stereotypes that mentally disabled women lack inherent worth…it will exacerbate existing conditions of inequality in which their experiences of abuse are denied, ignored, discounted and minimized.  It will effectively render these women beyond the law’s reach and protection…and further endangers this already disadvantaged group.\u00a0\u00bb<\/p>\n\n\n\n

\u00ab\u00a0The testimony of women with mental disabilities promotes the truth-seeking function of the criminal process, particularly given the undeniably high rates of sexual assault and the interests of society in the reporting and prosecution of abuse\u00a0\u00bb explains Birenbaum \u00ab\u00a0the rights of the accused are protected, as in every case, by cross examination and the ability of the judge or jury to weigh the evidence.\u00a0\u00bb<\/p>\n\n\n\n

Hutchison concludes that the appeal must be considered in light of Canada’s international human rights commitments, \u00ab\u00a0the UN Convention on the Rights of Persons with Disabilities points to the need for our country to uphold its promises under article 13, where we are \u00ab\u00a0to have equal access to justice\u00a0\u00bb and under article 16 which commits state parties \u00ab\u00a0<\/span>to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted\u00a0\u00bb. It is absolutely essential for these promises to be kept if all persons in Canada are to enjoy human rights and dignity.\u00a0\u00bb<\/span><\/p>\n\n\n\n

LEAF and DAWN-RAFH’s factum and more information can be found at<\/p>\n\n\n\n

\nhttps:\/\/www.leaf.ca\/wp-content\/uploads\/2011\/05\/2011-R.-vs.DI-Final-Factum.pdf\n<\/div><\/figure>\n\n\n\n

– 30-<\/p>\n\n\n\n

 For more information, please contact:<\/p>\n\n\n\n

Joanna Birenbaum <\/strong><\/p>\n\n\n\n

(LEAF Legal Director)<\/p>\n\n\n\n

(416) 595-7170 ext. 223 (office), (647) 500-3005 (Cell)<\/p>\n\n\n\n

j.birenbaum@leaf.ca<\/a> (e-mail)<\/p>\n\n\n\n

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