What do these various subjects have in common?
To me, they both examine the question (albeit in different contexts) as to whether and how much it is acceptable for society to act to "protect" individuals with disabilities. And although not so many years ago, that would have been hailed by most as a lofty goal, it seems to have fallen into disrepute more recently. As if attempts to "protect" the disabled, much like we attempt to attempt to "protect" our children, is somehow insulting and degrading to them.Wherever you might come down on those particular issues, a recent decision from the Supreme Court of Canada has certainly advanced the rights of people with intellectual and mental health disabilities to more fully access the criminal justice system.
And yet, although the concept of protecting disabled person from both themselves and others, so to speak, will no doubt be quite off-putting to some, I have to think that it does have a valid place in certain contexts and certain circumstances. Admittedly, in an ideal world, such a thing might well be not necessary. But who amongst us will really argue that we live in an ideal world?
Whether we are considering a defendant's right to represent himself in court or when (if ever) a guardianship order might be appropriate, we are really talking about the same thing. Do we treat individuals with disabilities like everyone else? Do we accord them special 'privileges'? Or do we place special 'burdens' or 'restrictions' on them?
And more importantly, can those questions be answered, can all the above examples be analyzed in a logically consistent way? Or is better to proceed with a haphazard, whatever 'feels right' approach?
The case involved a young woman with an intellectual disability who had accused her mother’s partner of sexually abusing her. Although at trial the young woman demonstrated that she could communicate the evidence and promised to tell the truth, the trial judge questioned her on her understanding of the nature of truth and falsity, of moral and religious duties, and of the legal consequences of lying in court. [Can you say abstract?} Unsatisfied with her answers to these questions and relying on the opinion of a psychiatrist who had never even spoken to the young woman, the court found that she could not give her evidence and the case against the accused was dismissed.
To give a better understanding of what happened here, I am going to provide you with the relevant sections of the Canada Evidence Act. Pay particular attention to s. 16(3):
16. (1) 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 determineYou will notice that under s.16(3) [above], if a person’s capacity to give evidence is challenged and the judge finds that person does not understand the nature of an oath or solemn declaration, they can still give evidence if they can communicate the evidence and promise to tell the truth. The problem is that the courts have routinely gone beyond that requirement and established a practice of placing an additional burden on witnesses whose capacity is challenged, requiring them to demonstrate that they understand what it means to promise to tell the truth by explaining such abstract terms as “truth” or “lie”.
(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.
Testimony under oath or solemn affirmation
(2) 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.
Testimony on promise to tell truth
(3) 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.
Inability to testify
(4) 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.>
Burden as to capacity of witness
(5) 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.
Fortunately the matter eventually made its way to the Supreme Court of Canada (SCC) , where the majority of the Court found that the trial judge had erred when he required the young woman to demonstrate that she understood the nature of a promise to tell the truth. The majority of the Court concluded that when a witness’ capacity to testify is challenged there are only two requirements that the witness must meet:
- the ability to communicate the evidence and
- promising to tell the truth.
- the primary source of evidence for a witness’s competence is to come from the witness, herself;
But, unfortunately, like so many things in life, there's both "good news" and "bad news" to be found in this decision.
The "good news" is, I believe, pretty clearly set out above. The 'bad news" is only found by digging a little deeper and touches more on a philosophical point. But I do believe you might be better served if I leave that discussion for another day.
For now, let's just sit with our victory.*
* Without commenting on the fact that it's pretty sad when what constitutes a "victory" merely sets individuals with intellectual disabilities on the same playing field as every other citizen in this country.
** By the by, and just as another aside, I might point out that out of the Justices involved in this decision was our old friend, Justice Cromwell.