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R. v. D.A.I

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Kathryn Lloyd

on 21 March 2013

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Transcript of R. v. D.A.I

Decision •There was no existing case law regarding mentally disabled adults and their capacity to testify.

•However, in making their determination, the Supreme Court considered R. v. Khan (1988), 42 C.C.C. (3d) 197.

•In this case, the Court developed the “principled approach” to hearsay, in which hearsay statements are admissible if they are deemed sufficiently reliable and are necessary to the case. McLaughlin J., as she then was, wrote for the unanimous decision: Case Law Majority Decision R.v. D.A.I Issue Case History “Despite the need for caution, hearsay evidence of a child's statement may be received where the two general requirements of necessity and reliability are met. The child's statement to the mother in this case was necessary, the child's viva voce evidence having been rejected. It was also reliable; the child had no motive to falsify her story, which emerged naturally and without prompting, and the fact she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability.” •Another case that was continuously used was R. v. Rockey [1996]

•R. v. Rockey, [1996] 3 S.C.R. 82, a case in which a child who had allegedly suffered a sexual assault was allowed to testify after the court applied the Khan test, was also considered in the R. v. D.A.I. decision. The issue was whether the judge had applied the requirements of section 16 of the Canada Evidence Act, which deals with the competence of adults with mental disabilities when presenting a testimony.

What had occurred was that the trial judge failed to apply this section when questioning K.B. Instead of using questions that K.B would understand, his standards were and his questions were inappropriate for an individual that does not have the mental competency of an adult. 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 determine (a) whether the person understands the nature of an oath or a solemn affirmation; and
• This was when the trial judge began to question K.B questions that dealt with her understanding of the meaning of truth, religious concepts and the consequences of lying. A lot of her answers were of her saying “I don’t know”. She was able to differentiate from what is good and bad but it was not enough to satisfy.

It was an error made on behalf of the judge that did not allow the victim to present evidence because she did not understand the philosophical meaning of the questions that were asked of her. Some of the questions asked were about being taught about God, about going to church, and being sent to jail if “big lies” were told. (b) whether the person is able to communicate the evidence.

• K.B’s out of court statements made to her teacher can prove that she is able to communicate what had happened. She was also able to explain the “game” to the police. She explained it through bodily gestures and that D.A.I had touched her underneath her pajamas a number of times. 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.

• S.16 (3) is relevant to this case as it focuses on the acts of communication and promising. This part allows individuals like K.B to have the chance to testify even if she can communicate the evidence and understand the importance to tell the truth. She had successfully completed the first step by telling family members, teachers and police officers what had happened between her and D.A.I. She did fail on the part of not understanding the importance of an oath. By accomplishing one part, the judge should have permitted her to testify. 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.

•If K.B did not present any relevant evidence or not respond to the understanding of what to tell the truth is, it would be grounds for inadmissibility. However, both the majority decision and dissent agree upon the fact that allowing the witness to testify is only the first step in the process. As the majority decision states, the witness’s evidence always has the opportunity to be tested in cross-examination, and the rules governing weight of evidence serve to ensure that verdicts will be based on credible evidence, and that the accused receives a fair trial.
Justice Ian Binnie filed a dissent, and was joined by Justices LeBel and Fish in his reasoning. He contended that the majority judgment compromises the protections Parliament intended to provide to accused persons, and that it takes the Canada Evidence Act’s requirement of swearing an oath or promising to tell a truth into an “empty formality.”

Interestingly, Binnie J. uses McLachlin C.J.’s words in the decision in R. v. Rockey to illustrate how he feels section 16(3) of the Canada Evidence Act should be interepreted and applied. He quotes her in paragraph 25 of that decision:

The only inference that can be drawn from this evidence is that while [the potential witness] Ryan understood the difference between what is “so” and “not so”, he had no conception of any moral obligation to say what is “right” or “so” in giving evidence or otherwise. In these circumstances, no judge could reasonably have concluded that Ryan was able to promise to tell the truth. Dissent The majority concluded that in the initial voir dire, the trial judge applied too high a standard to K.B. when determining her capacity by asking her philosophy-based questions about what happens when people do or do not tell the truth.

In other words, the judge should have recognized that even if K.B. didn’t understand the nature of an oath, he was still required to discover if she could simply promise to tell the truth — if so, she could testify.

This was an error of law by the trial judge, and was so grievous that it could not be disregarded or given deference to.

The appeal was allowed, the acquittal set aside, and a new trial was ordered. In the decision, she wrote: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.

Furthermore, McLachlin C.J. rejects the authorities’ requirement that a witness have an abstract or philosophical understanding of the duty to speak the truth when testifying, as this requirement was deleted from the Act by Parliament in 1987. What did the Supreme Court determine?

The decision was delivered on February 10, 2012 by Chief Justice Berverly McLachlin, who was joined by Justices Deschamps, Abella, Charron, Rothstein, and Cromwell in her reasoning.

In applying the plain meaning rule to section 16(3) of the Canada Evidence Act, McLachlin C.J. determined that witnesses are not required to have an understanding of the obligation to tell the truth when testifying – they must simply promise to tell the truth. Over a period of 4 years, K.B. was allegedly sexually assaulted by the accused, D.A.I. starting when she was 19
Concerned with whether or not K.B., a 26-year-old with mental development of 3-6 year-old has the capacity to testify in court
Preliminary inquiry, video-taped testimony to police submitted as examination in chief and she was cross examined and ruled competent to testify 1. Ontario Superior Court of Justice
Questions about moral and religious duties
Judge ruled K.B. had failed to show understanding of duty to tell the truth
D.A.I. Acquitted

2. Ontario Court of Appeal
Affirmed the acquittal

3. Supreme Court of Canada Levels of Court Thank You!

Any Questions?
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