Wednesday, 15 February 2012

Supreme Court Ruling on Testimony from People with IntellectualDisabilities...It's About Time!

A Supreme Court ruling in Canada is going to change the experience of people with intellectual disabilities in Canadian courts.

The ruling was made as the Supreme Court gave a woman with an intellectual disability a new trial after her testimony about an alleged sexual assault was dismissed.

Supreme Court Ruling Offers More Protection to People with Intellectual Disabilities

The Supreme Court ruling is extremely important.  Up until now, the Canada Evidence Act has put restrictions on how the testimony of people with intellectual disabilities can be used in court. Judges had the right to assess competence of a person with an intellectual disability and rule whether or not his or her testimony was admissible. This goes beyond the standard required for anyone else to testify: that they be able to communicate their story clearly, and that they promise to tell the truth.

I have never supported an individual to testify in court before, but I have supported individuals to make reports to the police. We talked beforehand about how it was important to be very honest, to tell the story exactly how they remembered it happening, and to answer the officer's questions as best they could. I can tell you from working with many, many people with intellectual disabilities that they know the difference between "telling the truth" and "telling a lie", and that, like most of us, most of them feel quite strongly that telling a lie is wrong.

So I found myself nodding when I read Chief Justice Beverly McLachlin explain that when an individual with an intellectual disability testifies, the promise to tell the truth should be enough. They should not have to demonstrate understanding of the moral obligation that the promise confers upon them (i.e., explain in concrete terms what taking an oath morally obligates them to do) - they just have to take the oath and be able to tell their story.

Of course, not all people with intellectual disabilities will be able to testify. Some will not understand that they have to tell the truth. Some may have a mental condition as well as an intellectual disability that doesn't allow them to distinguish fantasy from reality. But the stereotype that all people with intellectual disabilities cannot understand the difference between a truth and a lie and therefore shouldn't testify is no longer an issue. Now an individual is *competent* to testify under the law until proven otherwise, instead of *incompetent* until proven otherwise.

This makes all the difference in the world. It gives people like the woman  who got a new trial, who was trying to take her sexual abuser to court, a lot more protection under the law.

Legitimate Concerns About the Supreme Court Ruling?

Too much, the dissenting Justices said of the Supreme Court ruling, holding fast to the idea that if you can't explain why it's important to keep a promise to tell the truth, the power of that promise becomes so diluted that it really offers the accused no protection at all.

There were three dissenting judges out of the nine who voted. They were also concerned, according to one article that I read, that when asked questions about her daily life and routine, the woman who got a new trial answered "I don't know."

I don't think that this is necessarily a sign that she's not fit to testify, or doesn't understand the gravity of testifying in court. That could be simple nerves, and it would have been unfortunate to have voted down this Supreme Court ruling because the person had nerves.

Support Measures for the Supreme Court Ruling

Now that the ruling has passed, provincial governments may want to consider some sort of support process in place somewhere in their social services infrastructure to assist people with disabilities who do have to testify to become more comfortable with the courtroom and its processes before the actual day:

  • Provide someone to be a sort of case-manager, to assist the person's lawyer to get them prepared for court and to be a person to whom the person can have easy access in times of anxiety about testifying. This person could help with the points below.

  • Go with the person on a visit to the courtroom to view a portion of a trial. Familiarize the person with courtroom procedures. Watch a person testify.

  • Arrange to have the person talk to a person who has testified in court, to answer their questions.

It's important that the legal and judicial system take all possible steps to successfully implement this new Supreme Court ruling. As Carol Goar said in her "Toronto Star" column, this sort of ruling should have come into place twenty years ago when the Charter of Rights and Freedoms was enacted. We owe it to the people with intellectual disabilities who weren't protected before the Supreme Court ruling for all that time to make sure that people with intellectual disabilities are protected now.

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