The Supreme Court of Canada will be releasing a decision in D.A.I. tomorrow.
Criminal law – Evidence – Witnesses – Competence – Testimony of developmentally disabled witness – Does a mentally challenged witness need to demonstrate an understanding of the obligation to testify truthfully before being permitted to testify under s. 16(3) of the Canada Evidence Act? – If s. 16(3) imposes this requirement, what is the standard for determining whether a witness understands the duty to speak the truth and how should it be applied? – Did the Court of Appeal err by failing to identify errors in the trial judge’s hearsay admissibility analysis, which resulted in the exclusion of the complainant’s out of court statement?
The accused was charged with sexually assaulting a 19 year old developmentally disabled woman with the cognitive capabilities of a three to six year old child. He had been cohabiting with the complainant’s mother, the complainant and her sister from 2000 to 2004. The complainant told her teacher about a “hugging” game that she played with the accused which resulted in the police being contacted. During her recorded interview with a police officer in 2005, she demonstrated that the game involved the touching of her breasts, genital area and buttocks underneath her pyjamas and stated that this happened “all the time”. At a preliminary inquiry in 2006, the complainant was found to be a competent witness under s. 16 of the Canada Evidence Act. The issue of her competence arose again at trial.
Here is the factum from LEAF/Disabled Women’s Network of Canada (DAWN). Other Interveners:
Council of Canadians with Disabilities
Criminal Lawyers’ Association (Ontario) and
People First of Canada and Canadian Association for Community Living