R. v. D.A.I.

R. v. D.A.I.
Collection
Supreme Court Judgments
Date
2012-02-10
Neutral citation
2012 SCC 5
Report
[2012] 1 SCR 149
Case number
33657
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 33657
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149
Date: 20120210
Docket: 33657
Between:
Her Majesty The Queen
Appellant
and
D.A.I.
Respondent
- and -
Women’s Legal Education and Action Fund, DisAbled
Women’s Network Canada, Criminal Lawyers’ Association
(Ontario) and Council of Canadians with Disabilities
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 90)
Dissenting Reasons:
(paras. 91 to 152)
McLachlin C.J. (Deschamps, Abella, Charron, Rothstein and Cromwell JJ. concurring)
Binnie J. (LeBel and Fish JJ. concurring)
R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149
Her Majesty The Queen Appellant
v.
D.A.I. Respondent
and
Women’s Legal Education and Action Fund, DisAbled
Women’s Network Canada, Criminal Lawyers’ Association
(Ontario) and Council of Canadians with Disabilities Interveners
Indexed as: R. v. D.A.I.
2012 SCC 5
File No.: 33657.
2011: May 17; 2012: February 10.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Criminal law — Evidence — Testimonial competence — Adults with mental disabilities — Whether adult witnesses with mental disabilities must demonstrate understanding of nature of obligation to tell truth in order to be deemed competent to testify — Whether finding of testimonial competence without demonstration of understanding of obligation to tell truth breaches accused’s right to fair trial — Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 16 .
The Crown alleges that the complainant, a 26‑year‑old woman with the mental age of a three‑ to six‑year‑old, was repeatedly sexually assaulted by her mother’s partner during the four years that he lived in the home. It sought to call the complainant to testify about the alleged assaults. After a voir dire to determine the complainant’s capacity to testify, the trial judge found that she had failed to show that she understood the duty to speak the truth. In a separate voir dire, the trial judge also excluded out‑of‑court statements made by the complainant to the police and her teacher on the grounds that the statements were unreliable and would compromise the accused’s right to a fair trial. While the remainder of the evidence raised some serious suspicions about the accused’s conduct, the case collapsed and the accused was acquitted. The Ontario Court of Appeal affirmed this result.
Held (Binnie, LeBel and Fish JJ. dissenting): The appeal should be allowed, the acquittal set aside and a new trial ordered.
Per McLachlin C.J. and Deschamps, Abella, Charron, Rothstein and Cromwell JJ.: The question in issue is whether the trial judge correctly interpreted the requirements of s. 16 of the Canada Evidence Act for the testimonial competence of persons of 14 years of age or older (adults) with mental disabilities. Section 16(3) imposes two requirements for the testimonial competence of an adult with mental disabilities: (1) the ability to communicate the evidence; and (2) a promise to tell the truth. It is unnecessary and indeed undesirable to conduct abstract inquiries into whether the witness understands the difference between truth and falsity, the obligation to give true evidence in court, and what makes a promise binding. The plain words of s. 16(3) focus on the concrete acts of communicating and promising. Judges should not add other elements to the dual requirements imposed by s. 16(3) . This approach does not transform the promise into an empty gesture. Adults with mental disabilities may have a practical understanding of the difference between the truth and a lie and know they should tell the truth without being able to explain what telling the truth means in abstract terms. When such a witness promises to tell the truth, the seriousness of the occasion and the need to say what really happened is reinforced.
Insofar as the authorities suggest that s. 16(3) requires an abstract understanding of the obligation to tell the truth, they should be rejected. That requirement was based on a version of s. 16 that explicitly required that the witness “understands the duty of speaking the truth”. Although Parliament deleted that requirement in 1987, courts continued to require proof that child witnesses understood the duty to tell the truth. Parliament responded by enacting s. 16.1(7), which expressly forbade such inquiries of child witnesses. However, the existence of the s. 16.1(7) ban does not require us to infer that mentally disabled adults are to be questioned on the obligation to tell the truth. First, because s. 16(3) only required a promise to tell the truth, Parliament had no need to ban such questioning of adult witnesses with mental disabilities. Second, s. 16(3) required only a promise to tell the truth, so there was no need for Parliament to enact a similar provision with respect to s. 16(3). Third, the enactment of s. 16.1(7) did not imply that the earlier judicial interpretation of s. 16(3) as it applied to children had been endorsed for adult witnesses. No inference as to the meaning of s. 16(3) flows from the mere adoption of s. 16.1(7) with respect to children, and the re‑enactment of s. 16(3) does not imply that Parliament accepted the judicial interpretation that prevailed at the time of the re‑enactment. Fourth, the fact that s. 16 does not have a provision equivalent to s. 16.1(7) does not mean that adult witnesses with mental disabilities must demonstrate an understanding of the nature of the duty to speak the truth — s. 16(3) sets two requirements for the competence of adults with mental disabilities, and nothing further need be imported. Fifth, there is no need to prove that, unless it can be shown that adult witnesses with mental disabilities are the same as, or like, child witnesses, they must be subjected to an inquiry into their understanding of the nature of the obligation to tell the truth before they can be held competent to testify.
The underlying policy concerns — bringing the abusers to justice, ensuring fair trials and preventing wrongful convictions — also support allowing adults with mental disabilities to testify. With respect to the first concern, rejecting the evidence of alleged victims on the ground that they cannot explain the nature of the obligation to tell the truth in philosophical terms would exclude reliable and relevant evidence, immunize an entire category of offenders from criminal responsibility for their acts, and further marginalize the already vulnerable victims of sexual predators. With respect to the second, allowing an adult witness with mental disabilities to testify when the witness can communicate the evidence and promises to tell the truth does not render a trial unfair. Generally, the reliability threshold is met by establishing that the witness has the capacity to understand and answer the questions put to her and by bringing home the need to tell the truth by securing an oath, affirmation or promise. There is no guarantee that any witness will tell the truth — the trial process seeks a basic indication of reliability. That, along with the rules governing admissibility and weight of the evidence work to ensure that a verdict of guilty is based on accurate and credible evidence and that the accused has a fair trial.
When applying s. 16(3) in the context of the Canada Evidence Act , eight considerations are appropriate. First, the voir dire on the competence of a proposed witness is an independent inquiry: it may not be combined with a voir dire on other issues. Second, the voir dire should be brief, but not hasty. It is preferable to hear all available relevant evidence that can be reasonably considered before preventing a witness to testify. Third, the primary source of evidence for a witness’s competence is the witness herself. Her examination should be permitted. Questioning an adult with mental disabilities requires consideration and accommodation for her particular needs; questions should be phrased patiently in a clear, simple manner. Fourth, persons familiar with the proposed witness in her everyday situation understand her best. They may be called as fact witnesses to provide evidence on her development. Fifth, expert evidence may be adduced if it meets the criteria for admissibility, but preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness. Sixth, the trial judge must make two inquiries during the voir dire on competence: (a) does the proposed witness understand the nature of an oath or affirmation, and (b) can she communicate the evidence? Seventh, the second inquiry into the witness’s ability to communicate the evidence requires the trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions. It may be useful to ask if she can differentiate between true and false everyday factual statements. Finally, the witness testifies under oath or affirmation if she passes both parts of the test, and on promising to tell the truth if she passes the second part only.
In the instant case, the trial judge erred in failing to consider the second part of the test under s. 16 . This error of law led him to rule the complainant incompetent. This error cannot be rectified by comments made by the trial judge at other points in the trial or by the doctrine of deference.
Per Binnie, LeBel and Fish JJ. (dissenting): The majority judgment unacceptably dilutes the protection Parliament intended to provide to accused persons by turning Parliament’s direction permitting a person “whose mental capacity is challenged” to testify only “on promising to tell the truth” into an empty formality — a mere mouthing of the words “I promise” without any inquiry as to whether the promise has any significance to the potential witness
Section 16 mandates a single inquiry which presents the trial judge dealing with a witness whose mental capacity is challenged with three options. Section 16(2) provides that, if the challenged witness is able to communicate the evidence and understands the nature of an oath or a solemn declaration in terms of ordinary, everyday social conduct, he or she shall testify under oath or solemn affirmation. If the challenged witness is able to communicate the evidence but does not understand the nature of an oath or a solemn affirmation, s. 16(3) provides that he or she may provide unsworn testimony on promising to tell the truth. If the challenged witness does not satisfy either criterion, s. 16(4) provides that the individual with a mental disability shall not testify.
There is agreement with the majority that promising is an act aimed at bringing home to the witness the seriousness of the situation and the importance of being careful and correct. The promise thus serves a practical, prophylactic purpose. It cannot be correct, however, that it is out of bounds for a trial judge to try to determine — in concrete everyday terms — whether there is in reality such a prophylactic effect in the case of a particular witness whose mental capacity has been challenged. If such a witness is so disabled as not to understand the seriousness of the situation and the importance of being careful and correct, there is no prophylactic effect, and the fair trial interests of the accused under s. 16 , as enacted in 1987, are unfairly prejudiced.
In 2005, when Parliament amended the Canada Evidence Act to prohibit asking child witnesses “any questions regarding their understanding of the nature of the promise to tell the truth” (s. 16.1(7) ), the empirical evidence before Parliament related exclusively to children. No such empirical studies were carried out with respect to adults with mental disabilities. In their case, no “don’t ask” provision was proposed, let alone adopted.
There is agreement with the majority that the words “on promising to tell the truth” in s. 16(3) must bear the same meaning as “to promise to tell the truth” in s. 16.1(6). That being the case, the majority must read the s. 16.1(7) “don’t ask” rule applicable only to children into s. 16(3) applicable only to mentally challenged adults in order to read down the words “promising to tell the truth” in s. 16(3), and thus treat adults with mental disabilities as equivalent for the purposes of s. 16 to children without mental disabilities. The fact that psychiatrists speak of persons with mental disabilities in terms of mental ages does not mean that an adult with mental age of six is on the same footing as a six‑year‑old child with no mental disability whatsoever — a six‑year‑old with the mental capacity of a six‑year‑old does not suffer from a mental disability. No evidence was led to suggest equivalence and judicial notice cannot be taken of alleged “facts” that are neither notorious nor easily verifiable from undisputed sources.
On a competency voir dire where the mental capacity of an adult is challenged, and the adult is herself called as a proposed witness, the court may admit evidence from fact witnesses personally familiar with the complainant’s verbal and cognitive abilities and limitations to help the court gain a better understanding of the person’s capacity. These witnesses would not be in a position to express an expert opinion, but could testify about their direct personal observations of the proposed witness. Such evidence might, if the trial judge considered it helpful, better enable the judge or jury to appreciate her responses (or non‑responses) in the witness box. However, ultimately, the judge must reach his or her own considered opinion about the mental capacity of the proposed witness prior to admitting the testimony.
In this case, the trial judge had serious concerns about the complainant’s ability to communicate the evidence. The complainant’s answers to a series of simple and concrete questions left him fully satisfied that she did not understand what a promise to tell the truth involves. Much turned on the significance of the complainant’s repeated “I don’t know” answers. Clearly, it was an important advantage for the trial judge to watch the questions and answers unfold and to assess whether the complainant was actually able to “compute” her responses to what she was being asked. There was no allegation of bad faith, but she may nevertheless have been mistaken in her perception or recollection of events and the crucible of cross‑examination was useless because there was no secure method of testing her credibility. Her inability to deal with simple questions would mean her evidence would be effectively immune to challenge by the defence, thereby prejudicing the interest of society as well as the accused in a fair trial. Sitting on appeal from this determination, and not having had the advantage of observing and questioning the complainant, there is no valid basis for this Court to reverse the trial judge’s assessment of her mental capacity.
The trial judge’s conclusion that the complainant lacked the ability to perceive, recall and communicate events and to understand the difference between truth and falsehood set up, but did not predetermine, his conclusion that her testimony lacked sufficient reliability. It was neither surprising nor an error however that the trial judge’s reasoning on the threshold reliability in his hearsay ruling was quite similar to his reasoning on the s. 16 voir dire, and given his advantage in seeing and hearing the complainant, his exclusion of her out‑of‑court statements should equally be upheld by this Court.
Cases Cited
By McLachlin C.J.
Disapproved: R. v. Farley (1995), 23 O.R. (3d) 445; R. v. P.M.F. (1992), 115 N.S.R. (2d) 38; R. v. McGovern (1993), 82 C.C.C. (3d) 301; R. v. S.M.S. (1995), 160 N.B.R. (2d) 182; R. v. Ferguson (1996), 112 C.C.C. (3d) 342; R. v. Parrott (1999), 175 Nfld. & P.E.I.R. 89; R. v. A. (K.) (1999), 137 C.C.C. (3d) 554; R. v. R.J.B., 2000 ABCA 103, 255 A.R. 301; R. v. Brouillard, 2006 QCCA 1263, 44 C.R. (6th) 218; R. v. E.E.D., 2007 SKCA 99, 304 Sask. R. 192; distinguished: R. v. Khan (1988), 42 C.C.C. (3d) 197; R. v. Rockey, [1996] 3 S.C.R. 829; referred to: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Brasier (1779), 1 Leach 199, 168 E.R. 202; R. v. Bannerman (1966), 48 C.R. 110; Attorney General of Quebec v. Carrières Ste‑Thérèse Ltée, [1985] 1 S.C.R. 831; R. v. Caron (1994), 72 O.A.C. 287; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
By Binnie J. (dissenting)
R. v. Rockey, [1996] 3 S.C.R. 829; R. v. Khan, [1990] 2 S.C.R. 531, aff’g (1988), 42 C.C.C. (3d) 197; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Marquard, [1993] 4 S.C.R. 223; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.
Statutes and Regulations Cited
Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 18.
Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, ss. 26 , 27 .
Canada Evidence Act, R.S.C. 1985, c. C‑5, ss. 16 [rep. & sub. 1987, c. 24, s. 18; am. 2005, c. 32, s. 26], 16.1 [ad. 2005, c. 32, s. 27].
Canada Evidence Act, 1893, S.C. 1893, c. 31, s. 25.
Canadian Charter of Rights and Freedoms .
Interpretation Act, R.S.C. 1985, c. I‑21, s. 45 .
Authors Cited
Bala, Nicholas, et al. “Brief on Bill C-2: Recognizing the Capacities & Needs of Children as Witnesses in Canada’s Criminal Justice System”, submitted by the Child Witness Project to the House of Commons Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, March 2005.
Canada. House of Commons. Evidence of the Standing Committee on Justice and Human Rights, No. 77, 2nd Sess., 37th Parl., October 29, 2003, at 17:20 (online: www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1137489&Mode=1&Parl=37&Ses=2&Language=E).
Canada. House of Commons. Evidence of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, No. 26, 1st Sess., 38th Parl., March 24, 2005, p. 7 (online: www.parl.gc.ca/content/hoc/Committee/381/JUST/Evidence/EV1718347/JUSTEV26-E.PDF).
Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C‑15, No. 1, 2nd Sess., 33rd Parl., November 27, 1986, pp. 21, 24 and 33.
Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C‑15, No. 2, 2nd Sess., 33rd Parl., December 4, 1986, pp. 26‑27.
Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C‑15, No. 3, 2nd Sess., 33rd Parl., December 11, 1986, p. 7.
Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 17, 1st Sess., 38th Parl., June 23, 2005, p. 19.
Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 18, 1st Sess., 38th Parl., July 7, 2005, pp. 105‑6.
Côté, Pierre‑André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL from a judgment of the Ontario Court of Appeal (Doherty, MacPherson and Armstrong JJ.A.), 2010 ONCA 133, 260 O.A.C. 96, 252 C.C.C. (3d) 178, 73 C.R. (6th) 50, [2010] O.J. No. 665 (QL), 2010 CarswellOnt 880, affirming a decision of McKinnon J., 2008 CanLII 21725, [2008] O.J. No. 1823 (QL), 2008 CarswellOnt 2637. Appeal allowed, Binnie, LeBel and Fish JJ. dissenting.
Jamie C. Klukach and John Semenoff, for the appellant.
Howard L. Krongold and Leonardo Russomanno, for the respondent.
Joanna L. Birenbaum, for the interveners the Women’s Legal Education and Action Fund and the DisAbled Women’s Network Canada.
Joseph Di Luca and Erin Dann, for the intervener the Criminal Lawyers’ Association (Ontario).
David M. Wright and Helga D. Van Iderstine, for the intervener the Council of Canadians with Disabilities.
The judgment of McLachlin C.J. and Deschamps, Abella, Charron, Rothstein and Cromwell JJ. was delivered by
[1] The Chief Justice — Sexual assault is an evil. Too frequently, its victims are the vulnerable in our society — children and the mentally handicapped. Yet rules of evidence and criminal procedure, based on the norm of the average witness, may make it difficult for these victims to testify in courts of law. The challenge for the law is to permit the truth to be told, while protecting the right of the accused to a fair trial and guarding against wrongful conviction.
[2] Parliament has addressed this challenge by a series of amendments to the Canada Evidence Act, R.S.C. 1985, c. C-5 , that modify the normal rules of testimonial capacity for children and adults with mental disabilities. This Court has considered the provisions relating to children on a number of occasions. This appeal involves the provisions relating to adults with mental disabilities.
[3] At the heart of this case is a young woman, K.B., aged 26, with the mental age of a three- to six-year-old. The Crown alleges that she was repeatedly sexually assaulted by her mother’s partner at the time, D.A.I. The prosecution sought to call the young woman to testify about the alleged assaults. It also sought to adduce evidence through her school teacher and a police officer of what she told them.
[4] The trial judge excluded this evidence, on the ground that K.B. was not competent to testify in a court of law (A.R., vol. I, at p. 2). As a result, the case collapsed and D.A.I. was acquitted (2008 CanLII 21725 (Ont. S.C.J.)). The Ontario Court of Appeal affirmed the acquittal (2010 ONCA 133, 260 O.A.C. 96).
[5] I respectfully disagree. In my view, the trial judge made a fundamental error of law in interpreting and applying the provisions of the Canada Evidence Act governing the testimonial competence of adult witnesses with mental disabilities. This error of law vitiates the trial judge’s ruling that K.B. could not be allowed to testify. Subsequent evidence on other matters cannot overcome this fatal defect. I would therefore set aside the acquittal of D.A.I. and order a new trial.
I. Factual Background
[6] The complainant, K.B., was 22 at trial and 19 at the time of the alleged assault, but possessed the mental age of a three- to six-year-old. She lived with her mother and her mother’s partner, D.A.I., as well as her sister. During the four years he was in the home, D.A.I. developed a close relationship with K.B.
[7] Sometime after D.A.I. separated from K.B.’s mother and left the home, K.B. told her special education teacher about a “game” that she and D.A.I. used to play together which involved D.A.I. touching her. She later repeated this statement to the police. K.B., through bodily gestures, described the game as involving touching her breasts and vagina. In her statement to the police, she indicated that D.A.I. had touched her vagina, buttocks and breasts beneath her pajamas, and that this had happened many times.
[8] At the preliminary inquiry, K.B. was ruled competent to testify on the basis that she was able to communicate the evidence. Her videotaped statement to the police was admitted as her examination-in-chief and she was cross-examined.
[9] The issue of K.B.’s testimonial capacity was raised at trial, and the trial judge held a voir dire to determine whether she could be allowed to testify. K.B. and Dr. K., the defence’s expert witness, were the only ones to testify during the voir dire on competence. The Crown’s examination of K.B. demonstrated that she understood the difference between telling the truth and lying in concrete situations. However, the trial judge went beyond this to question K.B. on her understanding of the nature of truth and falsity, of moral and religious duties, and of the legal consequences of lying in court. K.B. was unable to respond adequately to these more abstract questions, to which she frequently answered “I don’t know” (A.R., vol. I, at pp. 117-19). Dr. K., a psychiatrist, testified for the defence. Dr. K’s opinion was formed without personal contact with K.B. It was based on school and medical records, as well as on K.B.’s behaviour in her videotaped statement and during the voir dire. Dr. K. expressed the view that K.B. had “serious difficulty in differentiating the concept of truth and lie”, noted her low tolerance for frustration, and said, “I don’t think she ha[d] the ability to think what you’re asking and come up with an answer” (ibid., at pp. 159 and 161).
[10] At the end of the voir dire on competence, the trial judge refused to hear from K.B.’s teacher of six years, Ms. W., and ruled that K.B. was incompetent to testify. K.B. was held incompetent because she had “not satisfied the prerequisite that she understands the duty to speak to the truth”, which the trial judge took to be required by s. 16(3) of the Canada Evidence Act : “She cannot communicate what truth involves or what a lie involves, or what consequences result from truth or lies” (ibid., at p. 3).
[11] A second voir dire was held to decide on the Crown’s application for admitting K.B.’s out-of-court statements to the police and to her teacher, Ms. W. The teacher testified that K.B. would not intentionally lie, but that her ability to understand was more developed than her ability to express herself: “This causes a lot of frustration for [K.B.], she frequently responds to questions by saying ‘I don’t know’” (ibid., at p. 176; see also pp. 184-85). Also, evidence was led corroborating K.B.’s allegations. A family friend testified that, while he was in D.A.I.’s room for another purpose, he found a Polaroid photo of K.B. with her breasts exposed and another photo of two unidentified people having sex. D.A.I.’s explanation of the first photo was that K.B. had flashed him while he was taking a photo of her. K.B.’s sister also testified that she had found such photos. However, she did not report it to her mother and the photos were not available at trial. K.B.’s sister also said she once saw D.A.I. touch K.B.’s breasts while she was lying on her bed.
[12] The voir dire on hearsay admissibility was concluded by the trial judge’s dismissal of the Crown’s application. The trial judge rejected K.B.’s out-of-court statements to Ms. W. and to the police, holding that K.B.’s hearsay evidence was inadmissible because it was “unreliable, and its admission would seriously compromise the accused’s right to a fair trial” (2008 CanLII 21726 (Ont. S.C.J.), at para. 57).
[13] At trial, the judge concluded that while the remainder of the evidence raised “some serious suspicions” about D.A.I.’s conduct, it was too scant to support a conviction (para. 11). The case essentially collapsed because of the trial judge’s ruling that K.B. was not competent to testify.
[14] The question we must decide is whether the trial judge correctly interpreted the requirements of the Canada Evidence Act for the testimonial competence of persons of 14 years of age or older (adults) with mental disabilities. If he applied too high a standard, his decision to preclude K.B. from testifying must be set aside and the case remitted for a new trial.
II. Legal Analysis
A. Testimonial Competence: A Threshold Requirement
[15] Before turning to s. 16(3) of the Canada Evidence Act , it is important to distinguish between three different concepts that are sometimes confused: (1) the witness’s competence to testify; (2) the admissibility of his or her evidence; and (3) the weight of the witness’s testimony. The evidentiary rules governing all three concepts share a common purpose: ensuring that convictions are based on solid evidence and that the accused has a fair trial. However, each concept plays a distinct role in achieving this goal.
[16] The first concept, and the one most relevant to this appeal, is the principle of competence to testify. Competence addresses the question of whether a proposed witness has the capacity to provide evidence in a court of law. The purpose of this principle is to exclude at the outset worthless testimony, on the ground that the witness lacks the basic capacity to communicate evidence to the court. Competence is a threshold requirement. As a matter of course, witnesses are presumed to possess the basic “capacity” to testify. However, in the case of children or adults with mental disabilities, the party challenging the competence of a witness may be called on to show that there is an issue as to the capacity of the proposed witness.
[17] The second concept is admissibility. The rules of admissibility determine what evidence given by a competent witness may be received into the record of the court. Evidence may be inadmissible for various reasons. Only evidence that is relevant to the case may be considered by the judge or jury. Evidence may also be inadmissible if it falls under an exclusionary rule, for example the confessions rule or the rule against hearsay evidence. Among the purposes of the rules of admissibility are improving the accuracy of fact finding, respecting policy considerations, and ensuring the fairness of the trial.
[18] The third concept — the responsibility of the trier of fact to decide what evidence, if any, to accept — is based on the assumption that the witness is competent and the rules of admissibility have been properly applied. Fulfillment of these requirements does not establish that the evidence should be accepted. It is the task of the judge or jury to weigh the probative value of each witness’s evidence on the basis of factors such as demeanour, internal consistency, and consistency with other evidence, and to thus determine whether the witness’s evidence should be accepted in whole, in part, or not at all. Unless the trier of fact is satisfied that the prosecution has established all elements of the offence beyond a reasonable doubt, there can be no conviction.
[19] Together, the rules governing competence, admissibility and weight of the evidence work to ensure that a verdict of guilty is based on accurate and credible evidence and that the accused person has a fair trial. The point for our purposes is a simple one: the requirement of competence is only the first step in the evidentiary process. It is the initial threshold for receiving evidence. It seeks a minimal requirement — a basic ability to provide truthful evidence. A finding of competence is not a guarantee that the witness’s evidence will be admissible or accepted by the trier of fact.
B. The Requirements for Competence of Adult Witnesses With Mental Disabilities: Section 16 of the Canada Evidence Act
[20] Against this background, I come to the provision at issue in this case, s. 16(3) of the Canada Evidence Act , which governs the capacity to testify of adults with mental disabilities. Section 16 provides:
16. (1) [Witness whose capacity is in question] If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
(2) [Testimony under oath or solemn affirmation] A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.
(3) [Testimony on promise to tell truth] A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.
(4) [Inability to testify] A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.
(5) [Burden as to capacity of witness] A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.
[21] Section 16(1) sets out what a judge must do when a challenge is raised. First, the judge must determine “whether the person understands the nature of an oath or a solemn declaration” and “whether the person is able to communicate the evidence” (s. 16(1)). If these requirements are met, the witness testifies under oath or affirmation, as other witnesses do (s. 16(2)). If these requirements are not met, the judge moves on to s. 16(3) . Section 16(3) provides that “[a] person . . . who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may . . . testify on promising to tell the truth.”
[22] In brief, s. 16(1) provides that an adult witness whose competence to testify is challenged should testify under oath or affirmation, if the witness “understands the nature of an oath or a solemn affirmation” and can “communicate the evidence”. Here K.B. did not meet the first requirement. The inquiry therefore moved to s. 16(3) , which states that if an adult witness cannot take the oath or affirm under s. 16(1), then she must be permitted to testify if she is “able to communicate the evidence” and promises to tell the truth.
[23] On its face, s. 16 says that in a case such as this where the witness cannot take the oath or affirm, the judge has only one further issue to consider — whether the witness can communicate the evidence. If the answer to that question is yes, the judge must then ask the witness whether she promises to tell the truth. If she does, she is competent to testify. It is not necessary to inquire into whether the witness understands the duty to tell the truth.
[24] The respondent argues, however, that the plain words of s. 16(3) do not suffice. They must be supplemented, he says, by the requirement that an adult witness with mental disabilities who cannot take an oath or affirm must not only be able to communicate the evidence and promise to tell the truth, but must also understand the nature of a promise to tell the truth.
[25] I cannot accept this submission. The words of an Act are to be interpreted in their entire context: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21. The wording of s. 16(3) , its history, its internal logic and its statutory context all point to the conclusion that s. 16(3) should be read as it stands, without reading in a further requirement that the witness demonstrate an understanding of the nature of the obligation to tell the truth. All that is required is that the witness be able to communicate the evidence and in fact promise to tell the truth.
[26] First, as already mentioned, this interpretation goes beyond the words used by Parliament. To insist that the witness demonstrate understanding of the nature of the obligation to tell the truth is to import a requirement into the section that Parliament did not place there. The first and cardinal principle of statutory interpretation is that one must look to the plain words of the provision. Where ambiguity arises, it may be necessary to resort to external factors to resolve the ambiguity: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 44. However, Parliament has clearly stated the requirements for finding adult witnesses with mental disabilities to be competent. Section 16 shows no ambiguity.
[27] Second, the history of s. 16 supports the view that Parliament intended to remove barriers that had prevented adults with mental disabilities from testifying prior to the 1987 amendments (S.C. 1987, c. 24). The amendments altered the common law rule, by virtue of which only witnesses under oath could testify. To take the oath or affirm, a witness must have an understanding of the duty to tell the truth: R. v. Brasier (1779), 1 Leach 199, 168 E.R. 202. Adults with mental disabilities might not be able to do this. To remove this barrier, Parliament provided an alternative basis for competence for this class of individuals. Section 16(1) of the 1987 provision continued to maintain the oath or affirmation as the first option for adults with mental disabilities, but s. 16(3) provided for competence based simply on the ability to communicate the evidence and a promise to tell the truth.
[28] This history suggests that Parliament intended to eliminate an understanding of the abstract nature of the oath or solemn affirmation as a prerequisite for testimonial capacity. Failure to show that the witness could demonstrate an understanding of the obligation to tell the truth was no longer the end of the matter. Provided the witness (1) was able to communicate the evidence, and (2) promised to tell the truth, she should be allowed to testify.
[29] The drafters of s. 16(3) did not intend this provision to require an abstract understanding of the duty to tell the truth (see Appendix A). The original text of Bill C-15, which adopted the 1987 amendments, was changed by the Legislative Committee on Bill C-15 precisely to avoid that interpretation. The version of s. 16(3) first put before Parliament allowed testimony on promising to tell the truth if the witness was “sufficiently intelligent that the reception of the evidence is justified”. A discussion was held on the meaning of “sufficient intelligence”, after which the Committee concluded that all that was needed for a witness to be sufficiently intelligent was to understand the moral difference between telling the truth and lying. The Committee, fearing that this would open the door to abstract inquiries, ultimately replaced “sufficient intelligence” by “able to communicate the evidence”. The deliberations that followed emphasized the practical ability to communicate the evidence. There was no suggestion that ability to communicate the evidence accompanied by a promise to tell the truth implicitly imposed a requirement that the witness demonstrate a more abstract understanding of the duty to tell the truth.
[30] The historic background against which s. 16(3) was enacted explains why Parliament might have wished in 1987 to lower the requirements of testimonial competence for adults with mental disabilities, who are nonetheless capable of communicating the evidence. While adults with mental disabilities received little consideration in the pre-1987 case law, the inappropriateness of questioning children on abstract understandings of the truth had been noted and criticized. In R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), Dickson J. ad hoc (as he then was) rejected the practice of examining child witnesses on their religious beliefs and the philosophical meaning of truth. Meanwhile, awareness of the sexual abuse of children and adults with mental disabilities was growing. To rule out the evidence of children and adults with mental disabilities at the stage of competence — the effect of the requirement of an abstract understanding of the nature of the obligation to tell the truth — meant the