R. v. D.I., (2012) 288 O.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 17, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2012), 288 O.A.C. 1 (SCC);2012 SCC 5;[2012] 1 SCR 149;427 NR 4;288 OAC 1

R. v. D.I. (2012), 288 O.A.C. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] O.A.C. TBEd. FE.023

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)

(33657; 2012 SCC 5; 2012 CSC 5)

Indexed As: R. v. D.I.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

February 10, 2012.

Summary:

The accused was charged with sexual assault. The complainant was a then 19 year old developmentally challenged woman with the cognitive capabilities of a three to six-year-old child.

The Ontario Superior Court acquitted the accused after ruling that the complainant did not have testimonial competence under s. 16 of the Canada Evidence Act and excluding the complainant's hearsay statements to her school teacher and a police officer. The Crown appealed, challenging the two evidentiary rulings.

The Ontario Court of Appeal, in a decision reported 260 O.A.C. 96, dismissed the appeal. The Crown appealed.

The Supreme Court of Canada, Binnie, LeBel and Fish, JJ., dissenting, allowed the appeal, set aside the acquittal and ordered a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Right to a just and fair trial (incl. appeal hearing) - [See fifth Evidence - Topic 5542 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See first Evidence - Topic 5542 ].

Evidence - Topic 4549

Witnesses - Attendance and oath - Oath - Promise rather than oath - [See all Evidence - Topic 5542 ].

Evidence - Topic 5542

Witnesses - Competency and compellability - Competency - Mental competency - Section 16 of the Canada Evidence Act required an inquiry when the mental capacity of a proposed witness aged 14 years or older was challenged - Section 16(1) provided that the inquiry was for determining whether the proposed witness (a) understood the nature of a solemn affirmation and (b) whether she was able to communicate the evidence - Section 16(3) provided that a proposed witness who did not understand the nature of an oath or a solemn affirmation could testify on promising to tell the truth - At the s. 16 inquiry in the present sexual assault case, the proposed witness, who was also the complainant, answered "I don't know" to questions that included "Tell me what you think about the truth", "What's a promise", and "Do you have any idea what it means to tell the truth" - The trial judge found that the complainant did not have testimonial competence where she did not understand what a promise to tell the truth involved - He did not allow her to testify - The accused was acquitted - The Supreme Court of Canada quashed the ruling and ordered a new trial, holding as follows: "The fatal error of the trial judge is that he did not consider the second part of the test under s. 16. He failed to inquire into whether [the complainant] had the ability to communicate the evidence under s. 16(3), insisting instead on an understanding of the duty to speak the truth that is not prescribed by s. 16(3). This error, an error of law, led him to rule [the complainant] incompetent and hence to the total exclusion of her evidence from the trial. This fundamental error vitiated the trial" - See paragraphs 84 to 90.

Evidence - Topic 5542

Witnesses - Competency and compellability - Competency - Mental competency - Section 16(3) of the Canada Evidence Act provided that a proposed witness aged 14 years or more, whose mental capacity was challenged, and who did not understand the nature of an oath or a solemn affirmation, could testify on promising to tell the truth - The Supreme Court of Canada discussed the "proper interpretation of s. 16(3)", and held as follows: "The words of an Act are to be interpreted in their entire context.. . 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" - See paragraphs 20 to 36, 53.

Evidence - Topic 5542

Witnesses - Competency and compellability - Competency - Mental competency - Section 16 of the Canada Evidence Act, as amended in 1987, required an inquiry when the mental capacity of a proposed witness aged 14 years or older (hereafter referred to as "adult witness") was challenged - Section 16(1) provided that the inquiry was for determining whether the proposed witness (a) understood the nature of a solemn affirmation and (b) whether she was able to communicate the evidence - Section 16(3) provided that a proposed witness who did not understand the nature of an oath or a solemn affirmation could testify on promising to tell the truth - Section 16.1(7), enacted in 2005, provided that no proposed witness aged less than 14 years was to be asked whether she understood the nature of the promise to tell the truth - The Supreme Court of Canada discussed the "proper interpretation of s. 16(3)" and held as follows: (1) "... it cannot be inferred that Parliament's failure to extend the express ban on questioning in s. 16.1(7) to adult witnesses shows an intent to permit such questioning of adult witnesses with mental disabilities"; (2) by reason of s. 45(3) of the Interpretation Act (Can.), no inference as to the meaning of s. 16(3) of the Canada Evidence Act flowed from the "mere" adoption of the s. 16.1(7) amendment with respect to children; (3) by reason of s. 45(4) of the Interpretation Act, the fact that s. 16 of the Canada Evidence Act "was re-enacted for adults with mental disabilities in 2005 does not, alone, imply that Parliament intended to countenance the judicial interpretation of this section which required understanding the obligation to tell the truth" - See paragraphs 37 to 53.

Evidence - Topic 5542

Witnesses - Competency and compellability - Competency - Mental competency - Section 16(3) of the Canada Evidence Act, as amended in 1987, provided that a proposed witness aged 14 years or more, whose mental capacity was challenged, and who did not understand the nature of an oath or a solemn affirmation, could testify on promising to tell the truth - The Supreme Court of Canada discussed the "proper interpretation of s. 16(3)", and held as follows: "insofar as the authorities, including Khan (Ont. C.A. 1988), suggested that "'promising to tell the truth' in s. 16(3) should be read as requiring an abstract inquiry into an understanding of the obligation to tell the truth, they should be rejected. All that is required is that the witness be able to communicate the evidence and promise to tell the truth" - See paragraphs 54 to 63.

Evidence - Topic 5542

Witnesses - Competency and compellability - Competency - Mental competency - Section 16(3) of the Canada Evidence Act provided that a proposed witness aged 14 years or more, whose mental capacity was challenged, and who did not understand the nature of an oath or a solemn affirmation, could testify on promising to tell the truth - The Supreme Court of Canada discussed the "proper interpretation of s. 16(3)", and, after ruling that there was no requirement that the proposed witness demonstrate an understanding of the nature of the obligation to tell the truth, held as follows: (1) to reject the proposed witness's evidence because she could not explain the nature of the obligation to tell the truth in philosophical terms was to exclude "reliable and relevant evidence and make it impossible to bring to justice those charged with crimes against the mentally disabled"; and (2) allowing the proposed witness to testify pursuant to s. 16(3) did not render the trial unfair - The ultimate protection of the accused's right to a fair trial lay in the rules respecting admissibility and weight of the evidence presented - See paragraphs 64 to 83.

Statutes - Topic 1201

Interpretation - Construction where meaning is plain - General principles - [See second Evidence - Topic 5542 ].

Statutes - Topic 1446

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - By reference to other provisions in same Act - [See third Evidence - Topic 5542 ].

Statutes - Topic 1449

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - General - [See second Evidence - Topic 5542 ].

Statutes - Topic 1641

Interpretation - Extrinsic aids - Legislative history - General - [See second Evidence - Topic 5542 ].

Statutes - Topic 6143

Operation and effect - Effect on earlier statutes - Amendments - Inference from amendment as to state of previous law - [See third Evidence - Topic 5542 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 25]; consd. [para. 116].

R. v. Brasier (1779), 1 Leach 199; 168 E.R. 202, refd to. [para. 27].

R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), consd. [para. 30].

Québec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831; 59 N.R. 391, refd to. [para. 31].

R. v. Khan (1988), 27 O.A.C. 142; 42 C.C.C.(3d) 197 (C.A.), not folld. [para. 38]; consd. [para. 107].

R. v. Farley (A.W.) (1995), 80 O.A.C. 337; 23 O.R.(3d) 445 (C.A.), refd to. [para. 57].

R. v. P.M.F. (1992), 115 N.S.R. (2d) 38; 314 A.P.R. 38 (C.A.), refd to. [para. 57].

R. v. McGovern (B.J.) (1993), 88 Man.R.(2d) 18; 51 W.A.C. 18; 82 C.C.C. (3d) 301 (C.A.), refd to. [para. 57].

R. v. S.M.S. (1995), 160 N.B.R. (2d) 182; 412 A.P.R. 182 (C.A.), refd to. [para. 57].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134, consd. [paras. 57, 92].

R. v. Ferguson (L.D.) (1996), 85 B.C.A.C. 33; 138 W.A.C. 33; 112 C.C.C.(3d) 342 (C.A.), refd to. [para. 57].

R. v. Parrott (W.) (1999), 175 Nfld. & P.E.I.R. 89; 537 A.P.R. 89 (Nfld. C.A.), refd to. [para. 57].

R. v. K.A. (1999), 123 O.A.C. 161; 137 C.C.C.(3d) 554 (C.A.), refd to. [para. 57].

R. v. R.J.B. (2000), 255 A.R. 301; 220 W.A.C. 301; 2000 ABCA 103, refd to. [para. 57].

R. v. Brouillard (2006), 44 C.R.(6th) 218 (Que. C.A.), refd to. [para. 57].

R. v. E.E.D. (2007), 304 Sask.R. 192; 413 W.A.C. 192; 2007 SKCA 99, refd to. [para. 57].

R. v. Caron (N.) (1994), 72 O.A.C. 287; 94 C.C.C.(3d) 466 (C.A.), refd to. [para. 72].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 89].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 92].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, consd. [para. 119].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236, refd to. [para. 130].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 130].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, consd. [para. 146].

R. v. Parrott (W.), [2001] 1 S.C.R. 178; 265 N.R. 304; 198 Nfld. & P.E.I.R. 260; 595 A.P.R. 260; 2001 SCC 3, consd. [para. 146].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338, refd to. [para. 151].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 16 [para. 20]; sect. 16.1 [para. 38].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 45 [para. 45].

Authors and Works Noticed:

Canada, House of Commons Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Brief on Bill C-2: Recognizing the Capacities & Needs of Children as Witnesses in Canada's Criminal Justice System, Child Witness Project (March 2005), generally [para. 33].

Canada, House of Commons, Evidence of the Standing Committee on Justice and Human Rights, No. 77, 2nd Sess., 37th Parl., October 29, 2003, p. 50 [para. 126].

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 [para. 42, Appendix B].

Canada, House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-15, No. 2, 2nd Session, 33rd Parl., December 4, 1986, pp. 26 [Appendix A]; 27 [para. 120, Appendix A].

Canada, House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-15, No. 2, 2nd Session, 33rd Parl., December 11, 1986, p. 7 [Appendix A].

Canada, Senate, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 18, 1st Sess., 38th Parl., June 23, 2005, p. 19 [para. 126].

Canada, Senate, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 18, 1st Sess., 38th Parl., July 7, 2005, pp. 105-106 [para. 43, Appendix A].

Côté, P.-A, Beaulac, S. and Devinat, M., The Interpretation of Legislation in Canada (4th Ed. 2011), p. 659 [para. 133].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 116].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 44 [para. 26].

Counsel:

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.

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Webber Schroeder Goldstein Abergel, Ottawa, Ontario, for the respondent;

Women's Legal Education and Action Fund, Toronto, Ontario, for the interveners, the Women's Legal Education and Action Fund and the DisAbled Women's Network Canada;

Di Luca Copeland Davies, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Aikins, MacAulay & Thorvaldson, Winnipeg, Manitoba, for the intervener, the Council of Canadians with Disabilities.

This appeal was heard on May 17, 2011, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following decision of the Supreme Court was delivered in both official languages on February 10, 2012, and the following reasons were filed:

McLachlin, C.J.C. (Deschamps, Abella, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 90;

Binnie, J., dissenting (LeBel and Fish, JJ., concurring) - see paragraphs 91 to 152.