Day v. Canada (Department of National Defence)

Day v. Canada (Department of National Defence)
Collection
Canadian Human Rights Tribunal
Date
2003-04-04
Neutral citation
2003 CHRT 16
Decision-maker(s)
Groake, Paul Dr.
Decision Content
Canadian Human Rights Tribunal Tribunal canadien des droits de la personne
BETWEEN:
AMANDA DAY
Complainant
- and -
DEPARTMENT OF NATIONAL DEFENCE
AND MICHAEL HORTIE
Respondents
REASONS FOR DECISION
MEMBER: Dr. Paul Groarke 2003 CHRT 16
2003/04/04
TABLE OF CONTENTS
I. IS THE COMPLAINANT CAPABLE OF TESTIFYING?
II. IS THE COMPLAINANT CAPABLE OF PROSECUTING THE CASE?
III. DISMISSAL
IV. BAN ON PUBLICATION
V. PRIVATE RECORDS
VI. A FINAL REMARK
VII. RULING
[1] The following is my second ruling on the question of competence, which originally arose in the course of the Complainant’s evidence-in-chief.I have attached the previous ruling as AppendixA.In the course of that ruling, I expressed misgivings as to the Complainant’s ability to testify and stated that her participation in the process should be monitored.A number of additional concerns arose during cross-examination.I subsequently allowed the Respondents to renew their application for a finding that the Complainant was not capable of testifying.
I. IS THE COMPLAINANT CAPABLE OF TESTIFYING? [2] The original application was renewed on the basis of a number of remarks that were made during the early stages of cross-examination.The Respondents have provided me with part of the recent transcript, which has been marked as an exhibit in the voir dire.Counsel have highlighted the passages that concern them and submit that it would be a mistake to continue. They have taken the position from the outset of the hearing that the Complainant’s allegations are the product of a psychological disorder.
[3] I have attached some of the more telling references in Appendix B, along with an excerpt in which the Complainant describes her condition during the period when she was allegedly harassed.The most troubling evidence is that the Complainant is convinced that other people have implanted thoughts or phrases in her mind. She believes that this was happening during the period of the alleged harassment.It has also happened more recently.The general idea appears to be that people have implanted subliminal suggestions in her mind, which she is compelled to obey.The Complainant accordingly believes that she has been programmed to act in certain ways.
[4] This includes the making of statements that have no obvious connection to the circumstances in which they have been said.The Complainant has testified that she said “I see Helter Skelter” when she saw a picture of a naked woman in the dockyard.She states that she made this statement because someone by the name of Robin had said that she would do so, years before the complaint arose.She was also programmed to say “I have AIDS”, when she was found to be HIV negative, and “oink, oink, get it” in circumstances that can only be described as bizarre.The same person, who she referred to as “Rotten Robin”, also told her that she was to turn herself into a mental institution at some point in time. The story is confused, but this is related to the fact that she agreed to help someone who was a prostitute.
[5] The problem is that these kinds of remarks extend to the subject matter of the complaints before me.The Complainant testified that at one point, at least, she believed that God was telling her to make the complaint.She is also convinced that the individual Respondent programmed her to hear certain frequencies and play a popular song on the guitar, without having to learn it. Some of her remarks are less benign.The Complainant stated on two occasions that the Respondent may have programmed her to harm herself or commit suicide.She also stated that the Respondent has been programmed.Since she is aware of this programming, she feels that she is in the best position to cross-examine him.
[6] This only sets out the some of the more troubling aspects of the testimony.The Respondents have expressed other concerns. There is evidence of her dissociating on the stand and losing contact with reality, whatever view is taken of her psychological state.Her conduct on and off the witness stand has been erratic and emotional.There are any number of troubling incidents before me, all of which attest to the difficulty that the Complainant has experienced in the hearing.Some of this behaviour is described in my earlier ruling on competence.
[7] The Respondents have submitted that the Complainant cannot meet the criteria set out by Dubin, J.A. in R. v. Hawke (1975) 7 O.R. (2d) 145.There seem to be two branches to the test in the jurisprudence.A witness cannot give evidence if the Tribunal is satisfied that either
1) her current psychological state, or
2) her psychological state at the time of the events in question prevents her from giving testimony that could be relied upon by a reasonable trier of fact.This is ultimately a legal and not a psychological question.It is the Tribunal that is in the best position to judge the probative quality of the evidence before it.The most significant consideration in a case like the one before me will normally be the conduct of the witness on the stand.
[8] I permitted the Complainant to give her evidence in chief, in spite of the difficulties that she was experiencing on the stand. Some of her evidence was intelligible and reasonably lucid.Some of her more recent testimony, however, has no apparent basis in reality.Although the Complainant has stated that she “reality tests” herself, she is unwilling to consider the possibility that the disordered perceptions that I have described are the product of a psychological condition.In the words of counsel, she will not accept any reality other than her own.
[9] The Complainant is unable to discern the difference between her disordered perceptions and reality.This inability goes back to the period of the alleged harassment.The problem lies in separating the more reliable parts of the Complainant’s evidence from the less reliable.This is exactly the kind of situation, it seems to me, where a judge would be forced to declare a mistrial, if this kind of evidence went before a jury.There comes a point where a Tribunal can no longer ascertain the accuracy of a witness’ testimony.
[10] I believe that the circumstances before me are more than enough to set aside the usual presumption that a witness is competent.I am satisfied on a balance of probabilities that the Complainant’s testimony fails both branches of the legal test.It would be manifestly unreasonable to make decisions on the basis of her testimony. I do not believe that a trier of fact could safely rely on her evidence, in rendering a decision against the Respondents.It follows that the testimony of the Complainant is not admissible in the proceedings before me.
II. IS THE COMPLAINANT CAPABLE OF PROSECUTING THE CASE? [11] I think it is only fair to say that the Complainant’s participation in the present process is fraught with difficulty. The Respondents have argued that she does not have the psychological capacity to prosecute the case.Counsel was unable to provide me with any caselaw on the subject and I have already indicated on the record that this kind of finding comes uncomfortably close to a finding that an individual is not competent in the more general legal sense.This goes well beyond my role.I have neither the authority nor the inclination to express an opinion on the question whether the Complainant is competent in the larger sense.I am nevertheless satisfied, in spite of my concerns, that I have the ancillary authority to determine whether she is capable of participating in the hearing.
[12] It is important to be cautious.As I understand it, the law only requires that a person instructing counsel have a basic grasp of the decisions that need to be made in the course of the legal process.I have alreadysuggested to counsel that a Tribunal can only intervene in the clearest cases, when a party loses the ability to make the most fundamental decisions regarding the management of the case.The question whether a party is capable of participating in a legal proceeding is usually decided by determining whether she is capable of instructing counsel.It is the ability and condition of the Complainant that must be examined in this context, rather than the difficulty of the proceedings.Individuals have the right to represent themselves, even where they have little of the training that would normally be required, in dealing with the issues before a Tribunal.
[13] The real problem before me is a practical one, since it is the Complainant that has carriage of the case.I realize that the case before me would be difficult for any Complainant, particularly without the advantage of counsel.The Complainant’s difficulties go beyond such ordinary concerns, however.The Complainant has difficulty restraining herself when her emotions are engaged and has often been disruptive.I do not believe that she has the emotional and psychological resources to participate normally in the process, whatever accommodation I can give her.It would be a mistake to be too rigid in these matters, but the decorum and integrity of the process need to be respected.This has a real bearing on the fairness of the process.
[14] A party cannot avail itself of the benefits of the legal process and reject the authority of the body with the responsibility for deciding the case.The Complainant has been disruptive and apparently feels that there is a concerted effort to deprive her of her rights.She is quick to interrupt counsel and accuse the other parties of misusing the process.When she realized that I was likely to rule against her on the present application, she turned her attention to the Tribunal.Rather than appear for the last day of the hearing, she took the view, in correspondence with the Registry Officer, that the Tribunal had set out to publicly humiliate her.This can only be taken as another manifestation of her psychological condition. Although the Complainant often exhibits the indicia of an ordinary person, there is an irrational side to her behaviour which continually interferes with her ability to participate in the process.
[15] Similar issues have been dealt with in the criminal courts, though there are significant differences between the two processes. The judgement of the Supreme Court in R. v. Whittle [1994] 2 S.C.R. 914 deals incidentally with the fitness of an accused to stand trial.It holds, at p. 933, that an accused only requires a “limited cognitive capacity to understand the process”.Although this sets the threshold very low, it accepts the relevant provision in the Criminal Code, which poses the question whether the accused is able to “conduct a defence” or instruct counsel to do so.The judgement suggests that a party must be able to make a choice, and I would go further and state that it must be a meaningful choice.A party whose choices are entirely arbitrary is not capable of participating in the legal process.
[16] As a general principle, it seems unlikely that a person who is incapable of testifying because she suffers from an existing disorder would be able to make the kind of decisions necessary to instruct counsel.I say this because a person who testifies as a witness need only provide a trustworthy narrative of select events.This does not require an ability to make decisions regarding the conduct of the case.I cannot say whether the decision in Whittle throws this into question.It nevertheless seems to me that a party must have some appreciation of the consequences of the decisions that need to be made in prosecuting the matter.In the present case, for example, the Complainant requested an order that the public guardian divulge its records regarding a recent application to have her committed.She appeared unable, however, to recognize that such an application might disclose information that would assist the Respondents, either on the question of competence or the merits of the case.
[17] The Complainant has already found it difficult to give her evidence-in-chief.We have only begun her cross-examination, after a month of hearing, and have not come anywhere near the material allegations.I do not want to speculate as to the difficulties that she will experience when counsel endeavours to test her evidence regarding the rather lurid sexual allegations that have come before me.I do not believe that it is feasible to embark on such an endeavour, however, and believe that it would be a mistake to take the process any further.Nor do I believe that the Complainant is capable of cross-examining the individual Respondent in a proper manner and feel obliged to say that there are real dangers in allowing her to do so.I am concerned that she has other reasons for seeking such a confrontation, which have more to do with her psychological fixations than the purposes of the hearing process.
[18] In the circumstances, I am satisfied on a balance of probabilities that the Complainant is incapable of participating in the process or instructing counsel to represent her interests.I do not believe that she can make the decisions that are required in prosecuting the case.I am also concerned that her failure to make meaningful decisions will lead her to act in a way that causes her serious and irreparable harm, legally, emotionally and psychologically.I think the report of Dr. Kaplan, which was entered as an exhibit in the voir dire, deserves serious consideration in this context.
III. DISMISSAL [19] There is no way of going forward with the hearing at this point in time.There may nevertheless be a number of ways of resolving the present situation.I have raised the possibility, for example, of a mistrial.The essential choice, however, is between adjourning the matter and dismissing the complaints.In theory, at least, the matter could be adjourned sine die, with the idea that another hearing could be held, if the Complainant becomes competent in the future.This would be more feasible if the complaints were of recent origin.
[20] In my view, the present case has already been delayed for too long.While the Respondents share some of the responsibility for the delay, at least before the Tribunal, I think that justice lies in bringing the matter to a close.It is time to bring this long and painful process to a close.I am particularly concerned about the individual Respondent, who has had to live with these allegations, in one way or the other, for eight or nine years.Many of the allegations are extravagant and extremely embarrassing.They include allegations of rape and sexual misconduct with children.The Respondents have argued from the beginning that they are entirely without substance.There have been a number of investigations and I do not believe it would serve the interests of justice to return to the case in two or three years, only to restart the process.As the Complainant herself observed, the present process has already exhausted substantial public resources.
[21] One of the complaints before me deals with the presence of pornography at the dockyard. This raised institutional issues that concern me.As a practical matter, however, I do not feel that it is possible to sever this complaint from the other complaints.Although the matter is less pressing for the corporate Respondent, there is no doubt that matters like the one before me can only have a demoralizing effect on employees.All three complaints have touched the lives of individual officers and employees, who want to be free of the Complainant’s allegations.In the military context, I also think that the corporate self‑esteem of the Respondent deserves some measure of protection.The present case has a scandalous side, which reaches out beyond those who have been directly affected by the investigation and the hearing.
[22] The Complainant has already had the benefit of a lengthy hearing.She has been given every reasonable opportunity to present evidence and in a qualified sense, at least, I think the Respondents have been under jeopardy.I seem to have the reverse of the situation in the courts, where a request for an adjournment is rejected and a party is called upon to present its case.If it fails to do so, the opposing party is entitled to a decision on the merits.Here there is a failure to present evidence, followed at least constructively by a request for an adjournment.I am nonetheless of the view that the fundamental logic of the two situations is the same.Since it would be unfair to adjourn the case, and I have rejected such a possibility, I think the Respondents are entitled to a dismissal.The rules against double jeopardy should apply in both circumstances.
[23] One of the virtues of the legal process is its finality.Once a complaint is substantiated or dismissed, the issue of liability is closed.The Tribunal is functus and the matter is res judicata.If the Tribunal has erred, the parties may seek judicial review.Otherwise, the parties must abide by the results.This is one of the benefits of any court or Tribunal process.At some point, people must move on with their lives.
IV. BAN ON PUBLICATION [24] There are two other matters that need to be addressed. The first is that I see no compelling reason to maintain the ban on publication of these proceedings.The mere fact that the allegations are offensive is not sufficient to justify a ban on publication.Mr.Hortie may take the dismissal of the complaint as a vindication of his position and anyone who recites the allegations is obliged to respect the fact that the complaint has been dismissed.If they misrepresent the matter, or fail to respect the truth, Mr. Hortie and others have the usual remedies.
[25] The public and the press are entitled to review the Tribunal process and the results in particular cases.Freedom of expression requires some freedom of communication.This is a fundamental part of our system and adds to the justice of the process.
[26] Although I am concerned about the disclosure of personal information relating to the Complainant, the Complainant has requested that the publication ban be lifted.In spite of my finding that she is not competent to represent herself, I feel obliged to take her views into account. She is firmly of the view that a public airing of the matter is important.
V. PRIVATE RECORDS [27] The Respondents are in possession of an extensive amount of personal information concerning Ms. Day.This information includes medical and psychological records, which go into areas of inquiry that are normally outside legal scrutiny.There is the report of Dr. Williams, for example, which was made when the Complainant was committed to the EricMartin Pavilion in November 2000, against her will.This report sets out the Complainant’s precarious emotional and psychological state at the time in considerable detail.The Respondents are also in possession of the notes made by the Complainant in preparing a lengthy account of what occurred.Dr. Kaplan, the expert witness who testified for the Respondents, has similar material in his possession.
[28] This is information that would normally be kept within the private sanctum and would not be released to other parties.The material was released because the Respondents had put the Complainant’s general psychological state into issue in the hearing.This provided the basis of their defence.The complaint has now been dismissed, however, these issues have no more life in them.I do not see why the other parties would be entitled to retain this information without compelling reasons.None have been advanced.
[29] The Complainant understandably objects to these documents remaining in the possession of the other parties. In my view, her request is a reasonable one. The Supreme Court has recognized that claims of privacy in this area have some constitutional significance.This information is entitled to the same protection as our innermost thoughts.There is no reason for third parties to review such personal information after the hearing has been completed, whether by accident or design.
[30] The Respondents have nevertheless expressed a concern that these documents may be destroyed.This is a concern because the Complainant has already stated that she intends to pursue the matter in other forums.She has also stated that she would have destroyed her notes if she had known that they would be disclosed.There are other ways of dealing with these concerns, however.In the circumstances, I think the matter can be dealt with by providing the material to the Tribunal, on the understanding that the material will be kept under seal.If the material is required in the future, the Respondents can apply to the Tribunal for an order to disclose it.
VI. A FINAL REMARK [31] I realize the Complainant will be disappointed and perhaps angry with these results.She appears to feel that the entire process has betrayed her.Some of this is a product of her experience on the witness stand.She feels that she has been asked to tell the truth, only to be punished for speaking openly about her psychological experiences.I understand her feelings in this regard, but there is nothing I can say, other than to commend her for speaking candidly.This does not have any bearing on the result.
[32] There are limits to the legal process and there are situations where it is simply impossible to proceed.There is nevertheless a positive side to the present hearing.Although there were many difficulties with the process, the most important aspect of the matter may be that the Complainant completed her evidence-in-chief, even if that testimony was ultimately rendered inadmissible.Life is imperfect but there is a real sense in which she has had her day in court.This is important enough to justify the process.There is nothing more that I can say.
VII. RULING [33] I am satisfied on a balance of probabilities that the Complainant is incapable of testifying.I am also satisfied that she is incapable of making meaningful decisions regarding the conduct and progress of her case.She does not have the capacity to participate in the hearing.I want it to be clear on the public record that I have serious concerns for her well-being if the process continues.
[34] In the circumstances, I am satisfied that the Complainant has had an ample opportunity to present her case, insofar as that is possible. There is no evidence before me to substantiate her allegations and the complaints are dismissed.
[35] The ban on publication is hereby lifted. The medical and psychological records pertaining to the Complainant, along with the personal notes, may be held for six months from the expiry of any period of review or subsequent appeal.This should be more than sufficient to review the files.If the Respondents wish to provide the Tribunal with a copy of the relevant material, it will be kept under seal.The other copies in the possession of the Respondents are to be destroyed.I would appreciate a letter from counsel, confirming that each of the Respondents have complied with this direction.I will retain the jurisdiction to vary this aspect of my order, should other circumstances arise.
Dr. Paul Groarke
OTTAWA, Ontario
April4, 2003
CANADIAN HUMAN RIGHTS TRIBUNAL
COUNSEL OF RECORD
TRIBUNAL FILE NOS.: T627/1501 and T628/1601
STYLE OF CAUSE: Amanda Day v. Department of National Defence and Michael Hortie
RULING OF THE TRIBUNAL DATED:April4, 2003
APPEARANCES:
Amanda Day On her own behalf
Joyce Thayer For Department of National Defence
J. David Houston For Michael Hortie
APPENDIX A
RULING ONCAPACITY
Canadian Human Rights Tribunal Tribunal canadien des droits de la personne
BETWEEN:
AMANDA DAY
Complainant
- and -
DEPARTMENT OF NATIONAL DEFENCE
AND MICHAEL HORTIE
Respondents
RULING ON CAPACITY
MEMBER: Dr. Paul Groarke 2003 CHRT 13
2003/03/12
I. THE APPLICATION BEFORE ME [1] The following are my reasons on the application of the Respondents for a ruling that the Complainant is not competent to testify in these proceedings.I prefer to phrase this as a question of capacity, and avoid the pejorative associations of the word featured in the caselaw.There is a second question that has arisen in this context, which is whether the Complainant is capable of representing herself.In the circumstances of the case, I do not believe that it would be in the interests of the parties to interrupt the process in order to prepare extensive reasons.I nevertheless feel obliged to issue written reasons before proceeding further.
[2] Before dealing with the background to the application, I would comment that the second question might seem to require a higher degree of capacity, since a party who is competent to proceed must be capable of participating in the conduct of the process.This would normally appear to present a higher standard than the capacity to give probative evidence, which need only be sufficient to assist the trier of fact.The usual logic of the situation seems to be reversed, however, in the circumstances before me.That is because the Complainant’s primary difficulty, as Ms. Thayer submitted, is in reciting the sexual allegations at the core of the complaint. This is undoubtedly the most difficult aspect of the matter from a legal perspective.
[3] Although I have focussed more directly on the first question, which relates to the Complainant’s ability to testify, the reality is that there is a general concern for her psychological condition that goes to all aspects of the case.I want to reassure the Complainant that, in my view, the other parties have acted out of respect for the integrity of the process and with a keen concern for the Complainant’s well-being. There is nothing improper in the application:on the contrary, I think it would have been inappropriate to proceed without canvassing these issues.This holds true, whatever my ruling on the application.
II. GENERAL BACKGROUND OF THE CASE [4] I should state at the outset that the present case seems to have a troubled history.There is no escaping the fact that the psychological history of the Complainant is relevant to the present proceedings.The medical record, which has not been independently proven, indicates that she has been committed in the past.There is no point in hiding this fact:it does not necessarily speak to the Complainant’s present circumstances and as far as I am aware, there is no suggestion from counsel that she is incompetent in the larger legal sense.This merely provides the background to the present application and illustrates, along with the rest of the medical and psychological record, that there are reasons for concern.
[5] Although I am not privy to the events that may have transpired before the hearing, the Complainant has indicated on a number of occasions that the Human Rights Commission and the other parties sought an order declaring her incompetent.I am not exaggerating when I say that she feels that there was something like a conspiracy to have her committed.I do not know the full details of the matter, but there is enough on the Tribunal file to suggest that there are reasons for the Complainant’s suspicions.This is not intended as a criticism:this has been a difficult matter for everyone involved with it, and I merely feel obliged to set out the larger set of circumstances behind the present application.
[6] The Complainant inevitably feels that any earlier efforts to have her declared incompetent were merely a convenient way of disposing of the present inquiry.It follows that she is extremely suspicious of the present attempt by the other parties to question her capacity to participate in the hearing.She believes that it is beneficial to her psychological well-being to continue and there is at least some medical evidence that supports such a contention.This raises issues that go beyond the scope of my authority, however, and the Complainant’s legal position is that she has a right to proceed.This includes the right to testify and present her account of what occurred.I have warned her that she will be subject to a full and searching cross-examination, which will undoubtedly raise painful memories and prove emotionally difficult.This does not dissuade her.
III. BACKGROUND OF THE PRESENT APPLICATION [7] There is no question that the application has been properly and responsibly made.The Complainant displayed erratic behaviour in giving her evidence in chief.This consisted of contorted facial expressions, inappropriate pauses, a pronounced shaking of her head, a raising of her arms and the adoption of various postures, all of which presented a departure from the normal presentation of viva voce evidence.I mention these attributes of her testimony because they are not apparent on the face of the record.The Complainant also used expletives, began sobbing, would occasionally raise her voice or adopt a theatrical and mocking tone, and was unable to continue on a number of occasions.The most difficult aspect of her evidence, from the perspective of managing the case, is that she found it difficult, even impossible, to confine herself to the narrative of events that led to the present complaint.She constantly went into other matters, occasionally in a manner that seems strange and even bizarre, to anyone with a developed sense of relevance.
[8] I accept, as counsel has submitted, that the Complainant’s behaviour deteriorated as she gave evidence and eventually culminated in what I have described on the record as a “screaming fit”, which happened when she found herself unable to describe one of the alleged incidents of sexual harassment.I think this can best be described as formless screaming:there were no words, as far as I could determine, and to a lay person, at least, the Complainant cried inconsolably, like an infant.The Tribunal officer immediately called for order and I left the hearing room, though it is clear that she fell to the floor, “writhing”, in the words of counsel and remained there until after the room was cleared.Dr. Kaplan, a psychologist for the Respondents, advised the Tribunal Officer to phone 911, a suggestion that was carried out.This should not be interpreted as a comment on the nature of what occurred, which became a source of controversy between the parties.
[9] One of the security officers, Ms. Dennis, remained in the hearing room and later testified as to what occurred.Her testimony was measured and careful evidence, and I accept her account of events.The only point that I feel obliged to clarify is that the hearing was not resumed in the absence of the Complainant.This was never a consideration, though the situation might have transpired differently if Ms. Day had been hospitalized. In my view, the matter was handled with the right degree of concern for the well-being of the Complainant and the need to protect the propriety of the process.After the Complainant had recovered, the hearing was briefly resumed, and the Complainant indicated that she wished to continue with her evidence. The other parties understandably requested a recess.The Complainant became visibly angry in response to the submissions of counsel, and I felt it was best to adjourn until the following day, at which time the Respondents brought the present application.
[10] I want to be fair.There is a sense in which this puts the matter in the worst light.I should make it clear that the Complainant is an intelligent person who often speaks lucidly and has a real appreciation of the nature and purpose of the present proceedings.She has given coherent testimony that would support the complaints.One of the problems is that she is not familiar with the practices in formal legal proceedings, and like many lay people, does not distinguish between a formal and informal venue.As a result, her manner and language is often inappropriate.She is unrepresented, which has added to her difficulties, and often seems overwhelmed by the minutiae of the evidence.Having said that, and made allowances for her lack of familiarity with legal proceedings, her psychological frailty, and her many interruptions, she appears to understand the process and has some rough ability to conduct her case and present evidence. There is no doubt that this has placed enormous demands on the patience of counsel, and myself, but that is another matter, which goes more to the issue of accommodation.
[11] After the application was made, I entered into a voir dire for the purpose of deciding the question of competence.The Respondents called Dr. Kaplan, a clinical psychologist, who was in attendance during the hearing.Dr. Kaplan was qualified as an expert and expressed serious reservations about proceeding.He was of the opinion that the Complainant suffers from a paranoid personality disorder, which makes her perception of events inherently unreliable.He also testified that, in his view, the Complainant had gone into a psychotic state while testifying.Dr. Kaplan also prepared a written report, which has been entered as an exhibit in the voir dire.Ms. Thayer placed considerable reliance on his view that the Complainant was having psychotic episodes at the time that she was experiencing the alleged sexual harassment.The cases suggest that this is a major consideration, but this goes to the merits of the case, and the evidence is far from clear at this point in time.
[12] The Complainant called Ms. Dennis in reply, along with two experts, who were duly qualified.Her therapist also appeared at the hearing, though she did not testify.The evidence of Dr. Hunter, a medical doctor with expertise in Post Traumatic Stress Disorder, was essentially that Ms. Day’s behaviour was consistent with such a diagnosis.The other expert witness, Dr. Malcolm, a clinical psychologist, adopted much the same position. Dr. Malcolm has treated the Complainant in the past and was consulted by the Complainant prior to the beginning of the proceedings.Mr. Houston objected vigorously to the fact that Dr. Hunter and Dr. Malcolm believed that it would be an injustice to deprive the Complainant of her right to proceed.These opinions were well intentioned and reflected their view that it would be better for the Complainant to proceed, psychologically.The question of justice is entirely within the keeping of the Tribunal, however, and well outside the scope of expert evidence.
[13] The Respondents also attacked the reliability of the testimony of Dr. Hunter and Dr. Malcolm, on the basis that they were poorly apprised of the circumstances before me.They also argued, understandably, that Dr. Kaplan was in a better position to provide an informed opinion as to the Complainant’s behaviour on the witness stand.I think there is some merit to these submissions, which may affect the weight of the testimony but does not negate it.I think it is important, in this context, to appreciate that the Respondents have the burden of satisfying me that the Complainant is incapable of testifying.There is no obligation on the Complainant to prove any positive assertion of fact.The evidence that she called on the voir dire was only called to offset the evidence of the Respondents and the experts were not tendered to prove her competence.
[14] I am left with a disagreement between the experts as to the exact nature of the situation that confronts me.I do not propose to enter into the details of this disagreement, though there was a more specific dispute as to what occurred when she began screaming.Dr. Kaplan was of the view that the Complainant was rapidly “decompensating”.This terminology was the subject of some discussion.The experts on the other side were more inclined to believe that she had experienced a flashback or “abreaction”, in which she was reliving the traumatic events in question.There was also a suggestion that she was dissociating.I do not propose to settle the dispute: whatever view is adopted, it is evident that the Complainant was not functioning rationally for the duration of the episode.
[15] I cannot make a medical or psychological diagnosis, but there are many reasons to believe that she suffers from paranoia in some general sense.I was advised by Dr. Hunter and Dr. Malcolm that this could be a manifestation of the “hypervigilance” associated with Post Traumatic Stress Disorder.I accept that that she is liable to “dissociate” on the witness stand and may be in danger of losing contact with reality.She does not trust counsel, has difficulty restraining her emotions, and often loses her way on the witness stand.Some of this must be attributed to the fact that the allegations before me are extremely personal and would be difficult for any litigant.Dr. Hunter testified that Ms. Day had an underlying “vulnerability” that makes them all the more trying for someone in her position.All of this presents a challenge for the conduct of the inquiry.
IV. THE LEGAL BASIS OF THE APPLICATION [16] The cases hold that it is the business of a judge to decide whether a witness is capable of testifying.It is the business of the jury to weigh the evidence. See:R. Harbuz [1979] 2 W.W.R. 105 and Steinberg v. The King (1931) 56 C.C.C. 9 (S.C.C.).As a result, the question should be dealt with at the earliest possible opportunity, in order to avoid the possibility of a mistrial.These concerns do not arise in the situation before me.The caselaw recognizes, moreover, that the question can be considered at a later point, if concerns arise during the course of a witness’ testimony.
[17] The law operates on the presumption that a witness has the capacity to testify.This does not require advanced abilities.The same observation can be applied to the question whether a party is capable of conducting its case, which only requires an ability to make basic personal decisions.The Respondents have accepted that they have an obligation to demonstrate, presumably on a balance of probabilities, that the Complainant is incapable of testifying.They rely principally on R. v. Hawke (1975) 7 O.R. (2d) 145 (Ont. C.A.), which is instructive on the general issue.They have also referred me to Sopinka’s Law of Evidence in Canada (2d), at §13.10 et. seq., which provides a very brief account of the law.
[18] The court in Hawke uses the antique and now unsettling language of Wigmore, at §i492, in holding that a witness is only disqualified from testifying if “the derangement or defect” is such as to undermine the witness’ ability to give trustworthy evidence on “the specific subject of the testimony”.The fact that the Complainant may have a psychological condition or paranoid personality disorder, or may be suffering from Post Traumatic Stress Disorder, does not prevent her from testifying.I do not know if a test has been enunciated in the caselaw, but the question is whether a trier of fact can properly and safely consider the evidence, in making a determination of the facts.The use of the word “trustworthy” is easily misinterpreted and the issue is not whether her testimony should be believed.It is whether it is capable of being believed.
[19] I feel obliged to add that my primary duty is to protect the integrity of the legal process.Although witnesses may occasionally break down, emotionally, there is a certain level of probity that is necessary to conduct a fair hearing.The legal and evidentiary process calls for a relatively calm and dispassionate assessment of the facts in a given case, and the purpose of the hearing must be respected.I have a fundamental obligation to maintain the level of decorum in the hearing that is necessary to maintain the integrity of the process.This is an indispensable attribute of the legal system and guarantees the justice and fairness of the proceeding.
[20] The trier of fact must also be able to follow and evaluate the testimony. It must be open to intelligent inspection.The evidence must be presented in some kind of logical and coherent manner, which is