The Supreme Court of Canada has ruled that sexual-assault complainants with intellectual disabilities who testify should have their credibility and reliability assessed free from stereotypes.
Women and girls with intellectual disabilities are disproportionately victims of sexual violence, and these assaults often go unreported and are under-prosecuted in comparison to those victims who do not suffer from a disability. Furthermore, females with intellectual disabilities also face barriers in having their allegations believed due to stereotypes about their credibility and reliability as witnesses.
Cases that deal with sexual assault often turn on the credibility and reliability of witnesses, especially the complainant.
Credibility deals with a witness’ veracity or truthfulness, while reliability deals with the accuracy of a witness’ testimony. Both the credibility and reliability of a witness are factual determinations to be made by a trial judge or jury.
R v. SLATTER
In the case of R. v. Slatter, the adult complainant testified that between 2009 and 2013, when she was in her late teens and early 20s, her neighbor, Thomas Slatter (“Slatter”), sexually assaulted her on numerous occasions. The assaults ranged from fondling to sexual intercourse.
At the Slatter’s trial in 2017, Ontario Superior Court Justice Wolfram Tausendfreund believed the complainant’s evidence and found Slatter guilty of sexual assault, sentencing him to 27 months in prison.
Justice Tausendfreund found the complainant’s testimony to be compelling, detailed and specific and found that others had corroborated instances where she and Slatter were located together.
Slatter appealed this decision and argued that Justice Tausendfreund did not explain in his reasoning the issue of the complainant’s reliability and alleged suggestibility.
Dr. Jessica Jones, a forensic clinic psychologist and professor of psychiatry at Queen’s University, testified at trial that she had diagnosed the complainant as having an intellectual developmental disorder and found her to academically function at the level of a 10 to 12 year old.
Dr. Jones testified specifically regarding the complainant’s predisposition to be overly suggestible when being questioned regarding her allegations of sexual assault. Dr. Jones found that the complainant was at the 75th percentile on a suggestibility curve (the average person is at the 50th percentile).
Justices David Doherty and Gary Trotter of the Ontario Court of Appeal agreed with Slatter’s argument, allowed his appeal and ordered a new trial.
However, Justice Sarah Pepall provided a dissenting opinion and found that the trial judge’s explanation of his judgment to be adequate. Justice Pepall wrote in her reasoning:
In the context of the whole of the record, it is evident that the trial judge grasped the substance of the case and that the basis for his verdict is obvious. He considered the complainant’s evidence on the core issue of her repeated sexual assaults by the appellant to be reliable and credible, and based on the evidence before him, he was satisfied beyond a reasonable doubt. There is not reason to interfere with the execution of his role as a trial judge.
Justice Pepall’s dissent provided the Crown prosecutor with an automatic right of appeal to the Supreme Court of Canada.
THE SUPREME COURT OF CANADA
The Supreme Court agreed unanimously with Justice Pepall’s dissenting opinion. The court emphasized the value of assessing the individual giving the testimony, rather than an expert opinion, with respect to determining a witness’ credibility and reliability.
On behalf of the court, Justice Michael Moldaver wrote:
Courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence.
Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice.
Susan Fraser, a lawyer who made submissions to the Supreme Court on behalf of the organizations intervening on this case which included, Women’s Legal Education and Action Fund, DisAbled Women’s Network Canada and ARCH Disability Law Centre, responded to the Supreme Court ruling:
It makes it clear that, just because a person is labelled with a disability, we should be wary of treating that reliability differently based on what I would say are actuarial scores.
The Supreme Court allowed the Crown’s appeal and restored Slatter’s conviction.
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