Her Majesty The Queen Appellant v. D.A.I., 2012 SCC 5

SUPREME COURT OF CANADA Citation: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149 Date: 20120210 Docket: 33657 Between: Her Majesty The Queen Appellant and 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 Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 90) Dissenting Reasons: (paras. 91 to 152) McLachlin C.J. (Deschamps, Abella, Charron, Rothstein and Cromwell JJ. concurring) Binnie J. (LeBel and Fish JJ. concurring) R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149 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 Indexed as: R. v. D.A.I. 2012 SCC 5 File No.: 33657. 2011: May 17; 2012: February 10.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. on appeal from the court of appeal for ontario Criminal law — Evidence — Testimonial competence — Adults with mental disabilities — Whether adult witnesses with mental disabilities must demonstrate understanding of nature of obligation to tell truth in order to be deemed competent to testify — Whether finding of testimonial competence without demonstration of understanding of obligation to tell truth breaches accused’s right to fair trial — Canada Evidence Act, R.S.C. 1985, c. C-5, s. 16 .

The Crown alleges that the complainant, a 26-year-old woman with the mental age of a three- to six-year-old, was repeatedly sexually assaulted by her mother’s partner during the four years that he lived in the home. It sought to call the complainant to testify about the alleged assaults. After a voir dire to determine the complainant’s capacity to testify, the trial judge found that she had failed to show that she understood the duty to speak the truth.

In a separate voir dire , the trial judge also excluded out-of-court statements made by the complainant to the police and her teacher on the grounds that the statements were unreliable and would compromise the accused’s right to a fair trial. While the remainder of the evidence raised some serious suspicions about the accused’s conduct, the case collapsed and the accused was acquitted. The Ontario Court of Appeal affirmed this result. Held (Binnie, LeBel and Fish JJ. dissenting): The appeal should be allowed, the acquittal set aside and a new trial ordered.

Per McLachlin C.J. and Deschamps , Abella, Charron, Rothstein and Cromwell JJ.: The question in issue is whether the trial judge correctly interpreted the requirements of s. 16 of the Canada Evidence Act for the testimonial competence of persons of 14 years of age or older (adults) with mental disabilities. Section 16(3) imposes two requirements for the testimonial competence of an adult with mental disabilities: (1) the ability to communicate the evidence; and (2) a promise to tell the truth.

It is unnecessary and indeed undesirable to conduct abstract inquiries into whether the witness understands the difference between truth and falsity, the obligation to give true evidence in court, and what makes a promise binding. The plain words of s. 16(3) focus on the concrete acts of communicating and promising. Judges should not add other elements to the dual requirements imposed by s. 16(3). This approach does not transform the promise into an empty gesture.

Adults with mental disabilities may have a practical understanding of the difference between the truth and a lie and know they should tell the truth without being able to explain what telling the truth means in abstract terms. When such a witness promises to tell the truth, the seriousness of the occasion and the need to say what really happened is reinforced. Insofar as the authorities suggest that s. 16(3) requires an abstract understanding of the obligation to tell the truth, they should be rejected.

That requirement was based on a version of s. 16 that explicitly required that the witness “understands the duty of speaking the truth”. Although Parliament deleted that requirement in 1987, courts continued to require proof that child witnesses understood the duty to tell the truth. Parliament responded by enacting s. 16.1(7), which expressly forbade such inquiries of child witnesses. However, the existence of the s. 16.1(7) ban does not require us to infer that mentally disabled adults are to be questioned on the obligation to tell the truth.

First, because s. 16(3) only required a promise to tell the truth, Parliament had no need to ban such questioning of adult witnesses with mental disabilities. Second, s. 16(3) required only a promise to tell the truth, so there was no need for Parliament to enact a similar provision with respect to s. 16(3). Third, the enactment of s. 16.1(7) did not imply that the earlier judicial

interpretation of s. 16(3) as it applied to children had been endorsed for adult witnesses. No inference as to the meaning of s. 16(3) flows from the mere adoption of s. 16.1(7) with respect to children, and the re-enactment of s. 16(3) does not imply that Parliament accepted the judicial

interpretation that prevailed at the time of the re-enactment. Fourth, the fact that s. 16 does not have a provision equivalent to s. 16.1(7) does not mean that adult witnesses with mental disabilities must demonstrate an understanding of the nature of the duty to speak the truth — s. 16(3) sets two requirements for the competence of adults with mental disabilities, and nothing further need be imported.

Fifth, there is no need to prove that, unless it can be shown that adult witnesses with mental disabilities are the same as, or like, child witnesses, they must be subjected to an inquiry into their understanding of the nature of the obligation to tell the truth before they can be held competent to testify. The underlying policy concerns — bringing the abusers to justice, ensuring fair trials and preventing wrongful convictions — also support allowing adults with mental disabilities to testify.

With respect to the first concern, rejecting the evidence of alleged victims on the ground that they cannot explain the nature of the obligation to tell the truth in philosophical terms would exclude reliable and relevant evidence, immunize an entire category of offenders from criminal responsibility for their acts, and further marginalize the already vulnerable victims of sexual predators. With respect to the second, allowing an adult witness with mental disabilities to testify when the witness can communicate the evidence and promises to tell the truth does not render a trial unfair.

Generally, the reliability threshold is met by establishing that the witness has the capacity to understand and answer the questions put to her and by bringing home the need to tell the truth by securing an oath, affirmation or promise. There is no guarantee that any witness will tell the truth — the trial process seeks a basic indication of reliability. That, along with the rules governing admissibility and weight of the evidence work to

ensure that a verdict of guilty is based on accurate and credible evidence and that the accused has a fair trial. When applying s. 16(3) in the context of the Canada Evidence Act , eight considerations are appropriate. First, the voir dire on the competence of a proposed witness is an independent inquiry: it may not be combined with a voir dire on other issues. Second, the voir dire should be brief, but not hasty. It is preferable to hear all available relevant evidence that can be reasonably considered before preventing a witness to testify.

Third, the primary source of evidence for a witness’s competence is the witness herself. Her examination should be permitted. Questioning an adult with mental disabilities requires consideration and accommodation for her particular needs; questions should be phrased patiently in a clear, simple manner. Fourth, persons familiar with the proposed witness in her everyday situation understand her best. They may be called as fact witnesses to provide evidence on her development.

Fifth, expert evidence may be adduced if it meets the criteria for admissibility, but preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness. Sixth, the trial judge must make two inquiries during the voir dire on competence: (

a) does the proposed witness understand the nature of an oath or affirmation, and (

b) can she communicate the evidence? Seventh, the second inquiry into the witness’s ability to communicate the evidence requires the trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions. It may be useful to ask if she can differentiate between true and false everyday factual statements. Finally, the witness testifies under oath or affirmation if she passes both parts of the test, and on promising to tell the truth if she passes the second part only.

In the instant case, the trial judge erred in failing to consider the second part of the test under s. 16. This error of law led him to rule the complainant incompetent. This error cannot be rectified by comments made by the trial judge at other points in the trial or by the doctrine of deference.

Per Binnie, LeBel and Fish JJ. (dissenting): The majority judgment unacceptably dilutes the protection Parliament intended to provide to accused persons by turning Parliament’s direction permitting a person “whose mental capacity is challenged” to testify only “on promising to tell the truth” into an empty formality — a mere mouthing of the words “I promise” without any inquiry as to whether the promise has any significance to the potential witness

Section 16 mandates a single inquiry which presents the trial judge dealing with a witness whose mental capacity is challenged with three options. Section 16(2) provides that, if the challenged witness is able to communicate the evidence and understands the nature of an oath or a solemn declaration in terms of ordinary, everyday social conduct, he or she shall testify under oath or solemn affirmation.

If the challenged witness is able to communicate the evidence but does not understand the nature of an oath or a solemn affirmation, s. 16(3) provides that he or she may provide unsworn testimony on promising to tell the truth. If the challenged witness does not satisfy either criterion, s. 16(4) provides that the individual with a mental disability shall not testify. There is agreement with the majority that promising is

an act aimed at bringing home to the witness the seriousness of the situation and the importance of being careful and correct. The promise thus serves a practical, prophylactic purpose. It cannot be correct, however, that it is out of bounds for a trial judge to try to determine — in concrete everyday terms — whether there is in reality such a prophylactic effect in the case of a particular witness whose mental capacity has been challenged.

If such a witness is so disabled as not to understand the seriousness of the situation and the importance of being careful and correct, there is no prophylactic effect, and the fair trial interests of the accused under s. 16 , as enacted in 1987, are unfairly prejudiced. In 2005, when Parliament amended the Canada Evidence Act to prohibit asking child witnesses “any questions regarding their understanding of the nature of the promise to tell the truth” (s. 16.1(7)), the empirical evidence before Parliament related exclusively to children.

No such empirical studies were carried out with respect to adults with mental disabilities. In their case, no “don’t ask” provision was proposed, let alone adopted. There is agreement with the majority that the words “on promising to tell the truth” in s. 16(3) must bear the same meaning as “to promise to tell the truth” in s. 16.1(6).

That being the case, the majority must read the s. 16.1(7) “don’t ask” rule applicable only to children into s. 16(3) applicable only to mentally challenged adults in order to read down the words “promising to tell the truth” in s. 16(3), and thus treat adults with mental disabilities as equivalent for the purposes of s. 16 to children without mental disabilities.

The fact that psychiatrists speak of persons with mental disabilities in terms of mental ages does not mean that an adult with mental age of six is on the same footing as a six-year-old child with no mental disability whatsoever — a six-year-old with the mental capacity of a six-year-old does not suffer from a mental disability. No evidence was led to suggest equivalence and judicial notice cannot be taken of alleged “facts” that are neither notorious nor easily verifiable from undisputed sources.

On a competency voir dire where the mental capacity of an adult is challenged, and the adult is herself called as a proposed witness, the court may admit evidence from fact witnesses personally familiar with the complainant’s verbal and cognitive abilities and limitations to help the court gain a better understanding of the person’s capacity. These witnesses would not be in a position to express an expert opinion, but could testify about their direct personal observations of the proposed witness.

Such evidence might, if the trial judge considered it helpful, better enable the judge or jury to appreciate her responses (or non-responses) in the witness box. However, ultimately, the judge must reach his or her own considered opinion about the mental capacity of the proposed witness prior to admitting the testimony. In this case, the trial judge had serious concerns about the complainant’s ability to communicate the evidence. The complainant’s answers to a series of simple and concrete questions left him fully satisfied that she did not understand what a promise to tell the truth involves.

Much turned on the significance of the complainant’s repeated “I don’t know” answers. Clearly, it was an important advantage for the trial judge to watch the questions and answers unfold and to assess whether the complainant was actually able to “compute” her responses to what she was being asked. There was no allegation of bad faith, but she may nevertheless have been mistaken in her perception or recollection of events and the crucible of cross-examination was useless because there was no secure method of testing her credibility.

Her inability to deal with simple questions would mean her evidence would be effectively immune to challenge by the defence, thereby prejudicing the interest of society as well as the accused in a fair trial. Sitting on appeal from this determination, and not having had the advantage of observing and questioning the complainant, there is no valid basis for this Court to reverse the trial judge’s assessment of her mental capacity.

The trial judge’s conclusion that the complainant lacked the ability to perceive, recall and communicate events and to understandthe difference between truth and falsehood set up, but did not predetermine, his conclusion that her testimony lacked sufficient reliability. It was neither surprising nor an error however that the trial judge’s reasoning on the threshold reliability in his hearsay ruling was quitesimilar to his reasoning on the s. 16 voir dire, and given his advantage in seeing and hearing the complainant, his exclusion of herout-of-court statements should equally be upheld by this Court.

Cases Cited By McLachlin C.J. Disapproved: R. v. Farley (1995), (ON CA), 23 O.R. (3d) 445; R. v. P.M.F. (1992), (NS CA), 115 N.S.R. (2d) 38; R. v. McGovern (1993), (MB CA), 82 C.C.C. (3d) 301; R. v. S.M.S. (1995), (NB CA), 160 N.B.R. (2d) 182; R. v. Ferguson (1996), (BC CA), 112 C.C.C. (3d) 342; R. v. Parrott(1999), (NL CA), 175 Nfld. & P.E.I.R. 89; R. v. A. (K.) (1999), (ON CA), 137 C.C.C. (3d) 554;R. v. R.J.B., 2000 ABCA 103, 255 A.R. 301; R. v. Brouillard, 2006 QCCA 1263, 44 C.R. (6th) 218; R. v. E.E.D., 2007 SKCA 99, 304Sask. R. 192; distinguished: R. v. Khan (1988), (ON CA), 42 C.C.C. (3d) 197; R. v.

Rockey, (SCC),[1996] 3 S.C.R. 829; referred to: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; R. v. Brasier (1779), 1Leach 199, 168 E.R. 202; R. v. Bannerman (1966), (MB CA), 48 C.R. 110; Attorney General of Quebec v. CarrièresSte-Thérèse Ltée, (SCC), [1985] 1 S.C.R. 831; R. v. Caron (1994), (ON CA), 72 O.A.C. 287; Housenv. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. By Binnie J. (dissenting) R. v. Rockey, (SCC), [1996] 3 S.C.R. 829; R. v. Khan, (SCC), [1990] 2 S.C.R. 531, aff’g(1988), (ON CA), 42 C.C.C. (3d) 197; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; R.v.

Marquard, (SCC), [1993] 4 S.C.R. 223; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Spence, 2005 SCC 71,[2005] 3 S.C.R. 458; R. v. Mohan, (SCC), [1994] 2 S.C.R. 9; R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178; R. v.Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. Statutes and Regulations Cited Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 18. Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32,ss. 26, 27. Canada Evidence Act, R.S.C. 1985, c.

C-5, ss. 16 [rep. & sub. 1987, c. 24, s. 18; am. 2005, c. 32, s. 26], 16.1 [ad. 2005, c. 32, s. 27]. Canada Evidence Act, 1893, S.C. 1893, c. 31, s. 25. Canadian Charter of Rights and Freedoms.

Interpretation Act, R.S.C. 1985, c. I-21, s. 45. Authors Cited Bala, Nicholas, et al. “Brief on Bill C-2: Recognizing the Capacities & Needs of Children as Witnesses in Canada’s Criminal JusticeSystem”, submitted by the Child Witness Project to the House of Commons Committee on Justice, Human Rights, Public Safety andEmergency Preparedness, March 2005. Canada. House of Commons. Evidence of the Standing Committee on Justice and Human Rights, No. 77, 2nd Sess., 37th Parl.,October 29, 2003, at 17:20 (online: www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1137489&Mode=1&Parl=37&Ses=2&Language=E). Canada.

House of Commons. Evidence of the Standing Committee on Justice, Human Rights, Public Safety and EmergencyPreparedness, No. 26, 1st Sess., 38th Parl., March 24, 2005, p. 7 (online:www.parl.gc.ca/content/hoc/Committee/381/JUST/Evidence/EV1718347/JUSTEV26-E.PDF). Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-15, No. 1, 2nd Sess., 33rdParl., November 27, 1986, pp. 21, 24 and 33. Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-15, No. 2, 2nd Sess., 33rdParl., December 4, 1986, pp. 26-27. Canada.

House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-15, No. 3, 2nd Sess., 33rdParl., December 11, 1986, p. 7. Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 17, 1st Sess., 38th Parl.,June 23, 2005, p. 19. Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 18, 1st Sess., 38th Parl., July 7,2005, pp. 105-6. Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The

Interpretation of Legislation in Canada, 4th ed.Toronto: Carswell, 2011.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008. APPEAL from a judgment of the Ontario Court of Appeal (Doherty, MacPherson and Armstrong JJ.A.), 2010 ONCA 133,260 O.A.C. 96, 252 C.C.C. (3d) 178, 73 C.R. (6th) 50, [2010] O.J. No. 665 (QL), 2010 CarswellOnt 880, affirming a decision ofMcKinnon J., , [2008] O.J. No. 1823 (QL), 2008 CarswellOnt 2637. Appeal allowed, Binnie, LeBel and Fish JJ.dissenting. 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’sNetwork 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. The judgment of McLachlin C.J. and Deschamps, Abella, Charron, Rothstein and Cromwell JJ. was delivered by [1] The Chief Justice — Sexual assault is an evil.

Too frequently, its victims are the vulnerable in our society —children and the mentally handicapped. Yet rules of evidence and criminal procedure, based on the norm of the average witness, maymake it difficult for these victims to testify in courts of law. The challenge for the law is to permit the truth to be told, while protectingthe right of the accused to a fair trial and guarding against wrongful conviction. [2] Parliament has addressed this challenge by a series of amendments to the Canada Evidence Act, R.S.C. 1985, c.

C-5, that modify the normal rules of testimonial capacity for children and adults with mental disabilities. This Court has considered theprovisions relating to children on a number of occasions. This appeal involves the provisions relating to adults with mental disabilities. [3] At the heart of this case is a young woman, K.B., aged 26, with the mental age of a three- to six-year-old. TheCrown alleges that she was repeatedly sexually assaulted by her mother’s partner at the time, D.A.I. The prosecution sought to call theyoung woman to testify about the alleged assaults.

It also sought to adduce evidence through her school teacher and a police officer ofwhat she told them. [4] The trial judge excluded this evidence, on the ground that K.B. was not competent to testify in a court of law (A.R.,vol. I, at p. 2). As a result, the case collapsed and D.A.I. was acquitted ( (Ont. S.C.J.)). The Ontario Court of Appealaffirmed the acquittal (2010 ONCA 133, 260 O.A.C. 96). [5] I respectfully disagree.

In my view, the trial judge made a fundamental error of law in interpreting and applying theprovisions of the Canada Evidence Act governing the testimonial competence of adult witnesses with mental disabilities. This error oflaw vitiates the trial judge’s ruling that K.B. could not be allowed to testify. Subsequent evidence on other matters cannot overcome thisfatal defect. I would therefore set aside the acquittal of D.A.I. and order a new trial. I. Factual Background [6] The complainant, K.B., was 22 at trial and 19 at the time of the alleged assault, but possessed the mental age of athree- to six-year-old.

She lived with her mother and her mother’s partner, D.A.I., as well as her sister. During the four years he was inthe home, D.A.I. developed a close relationship with K.B. [7] Sometime after D.A.I. separated from K.B.’s mother and left the home, K.B. told her special education teacherabout a “game” that she and D.A.I. used to play together which involved D.A.I. touching her. She later repeated this statement to thepolice. K.B., through bodily gestures, described the game as involving touching her breasts and vagina.

In her statement to the police,she indicated that D.A.I. had touched her vagina, buttocks and breasts beneath her pajamas, and that this had happened many times. [8] At the preliminary inquiry, K.B. was ruled competent to testify on the basis that she was able to communicate theevidence. Her videotaped statement to the police was admitted as her examination-in-chief and she was cross-examined. [9] The issue of K.B.’s testimonial capacity was raised at trial, and the trial judge held a voir dire to determine whethershe could be allowed to testify. K.B. and Dr.

K., the defence’s expert witness, were the only ones to testify during the voir dire oncompetence. The Crown’s examination of K.B. demonstrated that she understood the difference between telling the truth and lying inconcrete situations. However, the trial judge went beyond this to question K.B. on her understanding of the nature of truth and falsity, ofmoral and religious duties, and of the legal consequences of lying in court. K.B. was unable to respond adequately to these more abstractquestions, to which she frequently answered “I don’t know” (A.R., vol. I, at pp. 117-19). Dr.

K., a psychiatrist, testified for the defence. Dr. K’s opinion was formed without personal contact with K.B. It was based on school and medical records, as well as on K.B.’sbehaviour in her videotaped statement and during the voir dire. Dr.

K. expressed the view that K.B. had “serious difficulty indifferentiating the concept of truth and lie”, noted her low tolerance for frustration, and said, “I don’t think she ha[d] the ability to thinkwhat you’re asking and come up with an answer” (ibid., at pp. 159 and 161). [10] At the end of the voir dire on competence, the trial judge refused to hear from K.B.’s teacher of six years, Ms. W.,and ruled that K.B. was incompetent to testify.

K.B. was held incompetent because she had “not satisfied the prerequisite that sheunderstands the duty to speak to the truth”, which the trial judge took to be required by s. 16(3) of the Canada Evidence Act: “She cannotcommunicate what truth involves or what a lie involves, or what consequences result from truth or lies” (ibid., at p. 3).

[11] A second voir dire was held to decide on the Crown’s application for admitting K.B.’s out-of-court statements to thepolice and to her teacher, Ms. W. The teacher testified that K.B. would not intentionally lie, but that her ability to understand was moredeveloped than her ability to express herself: “This causes a lot of frustration for [K.B.], she frequently responds to questions by saying‘I don’t know’” (ibid., at p. 176; see also pp. 184-85). Also, evidence was led corroborating K.B.’s allegations.

A family friend testifiedthat, while he was in D.A.I.’s room for another purpose, he found a Polaroid photo of K.B. with her breasts exposed and another photo oftwo unidentified people having sex. D.A.I.’s explanation of the first photo was that K.B. had flashed him while he was taking a photo ofher. K.B.’s sister also testified that she had found such photos. However, she did not report it to her mother and the photos were notavailable at trial.

K.B.’s sister also said she once saw D.A.I. touch K.B.’s breasts while she was lying on her bed. [12] The voir dire on hearsay admissibility was concluded by the trial judge’s dismissal of the Crown’s application. Thetrial judge rejected K.B.’s out-of-court statements to Ms.

W. and to the police, holding that K.B.’s hearsay evidence was inadmissiblebecause it was “unreliable, and its admission would seriously compromise the accused’s right to a fair trial” ( (Ont.S.C.J.), at para. 57). [13] At trial, the judge concluded that while the remainder of the evidence raised “some serious suspicions” aboutD.A.I.’s conduct, it was too scant to support a conviction (para. 11).

The case essentially collapsed because of the trial judge’s rulingthat K.B. was not competent to testify. [14] The question we must decide is whether the trial judge correctly interpreted the requirements of the CanadaEvidence Act for the testimonial competence of persons of 14 years of age or older (adults) with mental disabilities. If he applied toohigh a standard, his decision to preclude K.B. from testifying must be set aside and the case remitted for a new trial. II. Legal Analysis A.

Testimonial Competence: A Threshold Requirement [15] Before turning to s. 16(3) of the Canada Evidence Act, it is important to distinguish between three different conceptsthat are sometimes confused: (1) the witness’s competence to testify; (2) the admissibility of his or her evidence; and (3) the weight ofthe witness’s testimony. The evidentiary rules governing all three concepts share a common purpose: ensuring that convictions arebased on solid evidence and that the accused has a fair trial.

However, each concept plays a distinct role in achieving this goal. [16] The first concept, and the one most relevant to this appeal, is the principle of competence to testify. Competenceaddresses the question of whether a proposed witness has the capacity to provide evidence in a court of law. The purpose of thisprinciple is to exclude at the outset worthless testimony, on the ground that the witness lacks the basic capacity to communicate evidenceto the court. Competence is a threshold requirement. As a matter of course, witnesses are presumed to possess the basic “capacity” totestify.

However, in the case of children or adults with mental disabilities, the party challenging the competence of a witness may becalled on to show that there is an issue as to the capacity of the proposed witness. [17] The second concept is admissibility. The rules of admissibility determine what evidence given by a competentwitness may be received into the record of the court. Evidence may be inadmissible for various reasons. Only evidence that is relevantto the case may be considered by the judge or jury.

Evidence may also be inadmissible if it falls under an exclusionary rule, for examplethe confessions rule or the rule against hearsay evidence. Among the purposes of the rules of admissibility are improving the accuracyof fact finding, respecting policy considerations, and ensuring the fairness of the trial. [18] The third concept — the responsibility of the trier of fact to decide what evidence, if any, to accept — is based onthe assumption that the witness is competent and the rules of admissibility have been properly applied.

Fulfillment of these requirementsdoes not establish that the evidence should be accepted. It is the task of the judge or jury to weigh the probative value of each witness’sevidence on the basis of factors such as demeanour, internal consistency, and consistency with other evidence, and to thus determinewhether the witness’s evidence should be accepted in whole, in part, or not at all.

Unless the trier of fact is satisfied that the prosecutionhas established all elements of the offence beyond a reasonable doubt, there can be no conviction. [19] Together, the rules governing competence, admissibility and weight of the evidence work to ensure that a verdict ofguilty is based on accurate and credible evidence and that the accused person has a fair trial. The point for our purposes is a simple one:the requirement of competence is only the first step in the evidentiary process. It is the initial threshold for receiving evidence.

It seeksa minimal requirement — a basic ability to provide truthful evidence. A finding of competence is not a guarantee that the witness’sevidence will be admissible or accepted by the trier of fact. B. The Requirements for Competence of Adult Witnesses With Mental Disabilities:

Section 16 of the Canada Evidence Act [20] Against this background, I come to the provision at issue in this case, s. 16(3) of the Canada Evidence Act, whichgoverns the capacity to testify of adults with mental disabilities.

Section 16 provides: 16. (1) [Witness whose capacity is in question] If a proposed witness is a person of fourteen years of age or older whosemental 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 (

b) whether the person is able to communicate the evidence. (2) [Testimony under oath or solemn affirmation] A person referred to in subsection (1) who understands the nature of anoath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation. (3) [Testimony on promise to tell truth] A person referred to in subsection (1) who does not understand the nature of anoath 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. (4) [Inability to testify] A person referred to in subsection (1) who neither understands the nature of an oath or a solemnaffirmation nor is able to communicate the evidence shall not testify. (5) [Burden as to capacity of witness] A party who challenges the mental capacity of a proposed witness of fourteen yearsof age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under anoath or a solemn affirmation. [21] Section 16(1) sets out what a judge must do when a challenge is raised.

First, the judge must determine “whetherthe person understands the nature of an oath or a solemn declaration” and “whether the person is able to communicate the evidence” (s.16(1)). If these requirements are met, the witness testifies under oath or affirmation, as other witnesses do (s. 16(2)). If theserequirements are not met, the judge moves on to s. 16(3).

Section 16(3) provides that “[a] person . . . who does not understand the natureof an oath or a solemn affirmation but is able to communicate the evidence may . . . testify on promising to tell the truth.” [22] In brief, s. 16(1) provides that an adult witness whose competence to testify is challenged should testify under oathor affirmation, if the witness “understands the nature of an oath or a solemn affirmation” and can “communicate the evidence”. HereK.B. did not meet the first requirement.

The inquiry therefore moved to s. 16(3), which states that if an adult witness cannot take theoath or affirm under s. 16(1), then she must be permitted to testify if she is “able to communicate the evidence” and promises to tell thetruth. [23] 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 onlyone further issue to consider — whether the witness can communicate the evidence. If the answer to that question is yes, the judge mustthen ask the witness whether she promises to tell the truth. If she does, she is competent to testify.

It is not necessary to inquire intowhether the witness understands the duty to tell the truth. [24] The respondent argues, however, that the plain words of s. 16(3) do not suffice. They must be supplemented, hesays, by the requirement that an adult witness with mental disabilities who cannot take an oath or affirm must not only be able tocommunicate the evidence and promise to tell the truth, but must also understand the nature of a promise to tell the truth. [25] I cannot accept this submission. The words of

an Act are to be interpreted in their entire context: Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21. The wording of s. 16(3), its history, its internal logic and itsstatutory context all point to the conclusion that s. 16(3) should be read as it stands, without reading in a further requirement that thewitness demonstrate an understanding of the nature of the obligation to tell the truth. All that is required is that the witness be able tocommunicate the evidence and in fact promise to tell the truth. [26] First, as already mentioned, this

interpretation goes beyond the words used by Parliament. To insist that the witnessdemonstrate understanding of the nature of the obligation to tell the truth is to import a requirement into the

section that Parliament didnot place there. The first and cardinal principle of statutory

interpretation is that one must look to the plain words of the provision. Where ambiguity arises, it may be necessary to resort to external factors to resolve the ambiguity: R. Sullivan, Sullivan on theConstruction of Statutes (5th ed. 2008), at p. 44. However, Parliament has clearly stated the requirements for finding adult witnesseswith mental disabilities to be competent.

Section 16 shows no ambiguity. [27] Second, the history of s. 16 supports the view that Parliament intended to remove barriers that had prevented adultswith mental disabilities from testifying prior to the 1987 amendments (S.C. 1987, c. 24). The amendments altered the common law rule,by virtue of which only witnesses under oath could testify. To take the oath or affirm, a witness must have an understanding of the dutyto tell the truth: R. v. Brasier (1779), 1 Leach 199, 168 E.R. 202. Adults with mental disabilities might not be able to do this.

To removethis barrier, Parliament provided an alternative basis for competence for this class of individuals. Section 16(1) of the 1987 provisioncontinued to maintain the oath or affirmation as the first option for adults with mental disabilities, but s. 16(3) provided for competencebased simply on the ability to communicate the evidence and a promise to tell the truth. [28] This history suggests that Parliament intended to eliminate an understanding of the abstract nature of the oath orsolemn affirmation as a prerequisite for testimonial capacity.

Failure to show that the witness could demonstrate an understanding of theobligation to tell the truth was no longer the end of the matter. Provided the witness (1) was able to communicate the evidence, and (2)promised to tell the truth, she should be allowed to testify. [29] The drafters of s. 16(3) did not intend this provision to require an abstract understanding of the duty to tell the truth(see Appendix A). The original text of Bill C-15, which adopted the 1987 amendments, was changed by the Legislative Committee onBill C-15 precisely to avoid that

interpretation. The version of s. 16(3) first put before Parliament allowed testimony on promising to tellthe truth if the witness was “sufficiently intelligent that the reception of the evidence is justified”. A discussion was held on the meaningof “sufficient intelligence”, after which the Committee concluded that all that was needed for a witness to be sufficiently intelligent wasto understand the moral difference between telling the truth and lying. The Committee, fearing that this would open the door to abstractinquiries, ultimately replaced “sufficient intelligence” by “able to communicate the evidence”.

The deliberations that followedemphasized the practical ability to communicate the evidence. There was no suggestion that ability to communicate the evidenceaccompanied by a promise to tell the truth implicitly imposed a requirement that the witness demonstrate a more abstract understandingof the duty to tell the truth. [30] The historic background against which s. 16(3) was enacted explains why Parliament might have wished in 1987 tolower the requirements of testimonial competence for adults with mental disabilities, who are nonetheless capable of communicating theevidence.

While adults with mental disabilities received little consideration in the pre-1987 case law, the inappropriateness ofquestioning children on abstract understandings of the truth had been noted and criticized. In R. v. Bannerman (1966), (MB CA), 48 C.R. 110 (Man. C.A.), Dickson J. ad hoc (as he then was) rejected the practice of examining child witnesses on theirreligious beliefs and the philosophical meaning of truth. Meanwhile, awareness of the sexual abuse of children and adults with mentaldisabilities was growing.

To rule out the evidence of children and adults with mental disabilities at the stage of competence — the effect

of the requirement of an abstract understanding of the nature of the obligation to tell the truth — meant their stories would never be toldand their cases never prosecuted. These concerns explain why Parliament moved to simplify the competence test for adult witnesseswith mental disabilities. [31] Third, and flowing from this history, the internal logic of s. 16 negates the suggestion that “promising to tell thetruth” in s. 16(3) must be read as implying an understanding of the obligation to tell the truth. Two procedures are provided by s. 16.

The preferred option is testimony under oath or affirmation (s. 16(1)), and the alternative procedure is testimony on a promise to tell thetruth (s. 16(3)). If the witness is required under s. 16(3) to demonstrate that she understands the obligation to tell the truth, s. 16(3) addslittle, if anything, to s. 16(1). In both cases, the witness is required to articulate abstract concepts of the nature of truth and the nature ofthe obligation to tell the truth in court. The result is essentially to render s. 16(3) a dead letter and to negate the dual structure of theprovision.

This runs against the principle of statutory

interpretation that Parliament does not speak in vain: Attorney General of Quebecv. Carrières Ste-Thérèse Ltée, (SCC), [1985] 1 S.C.R. 831, at p. 838. [32] Fourth, s. 16(4) indicates that ability to communicate the evidence is the only quality that an adult with mentaldisabilities must possess in order to testify under s. 16(3). Section 16(4) provides that the proposed witness is unable to testify if sheneither understands the nature of an oath or solemn affirmation nor is able to communicate the evidence.

It follows that the witness iscompetent to testify if she is able to communicate the evidence; she may testify on promising to tell the truth under s. 16(3). Thequalities envisaged in s. 16 as basis for testimonial competence are mentioned in s. 16(4). Imposing an additional qualitative requirementto understand the nature of a promise to tell the truth would flout the utility of s. 16(4). [33] Fifth, the legislative context speaks against reading s. 16(3) as requiring that an adult witness with mental disabilitiesunderstand the nature of the obligation to tell the truth.

If this requirement is added to s. 16(3), the result is a different standard for thecompetence of adults with mental disabilities under s. 16(3) and children under s. 16.1 (enacted in 2005 (S.C. 2005, c. 32) pursuant to the“Brief on Bill C-2: Recognizing the Capacities & Needs of Children as Witnesses in Canada’s Criminal Justice System” (Child WitnessProject, March 2005) (the “Bala Report”)). As will be discussed more fully below, s. 16(3) governing the competence of adults withmental disabilities, and ss. 16.1(3), (5) and (6) governing the competence of children, set forth essentially the same requirements.

Broadly speaking, both condition testimonial capacity on: (1) the ability to communicate or answer questions; and (2) a promise to tellthe truth. While it was open to Parliament to enact different requirements for children and adults with the minds of children, consistencyof Parliamentary intent should be assumed, absent contrary indications.

No explanation has been offered as to why Parliament wouldconsider a promise to tell the truth a meaningful procedure for children, but an empty gesture for adults with mental disabilities. [34] The foregoing reasons make a strong case that s. 16(3) should be read as requiring only two requirements forcompetence of an adult with mental disabilities: (1) ability to communicate the evidence; and (2) a promise to tell the truth. However,two arguments have been raised in opposition to this

interpretation: first, without a further requirement of an understanding of theobligation to tell the truth, a promise to tell the truth is an “empty gesture”; second, Parliament’s failure in 2005 to extend to adults withmental disabilities the s. 16.1(7) prohibition on the questioning of children means that it intended this questioning to continue for adults. I will examine each argument in turn. [35] The first argument is that unless an adult witness with mental disabilities is required to demonstrate that sheunderstands the nature of the obligation to tell the truth, the promise is an “empty gesture”.

However, this submission’s shortcoming isthat it departs from the plain words of s. 16(3), on the basis of an assumption that is unsupported by any evidence and contrary toParliament’s intent. Imposing an additional qualitative condition for competence that is not provided in the text of s. 16(3) woulddemand compelling demonstration that a promise to tell the truth cannot amount to a meaningful procedure for adults with mentaldisabilities. No such demonstration has been made.

On the contrary, common sense suggests that the act of promising to tell the truthmay be useful, even in the absence of the witness’s ability to explain what telling the truth means in abstract terms. [36] Promising is

an act aimed at bringing home to the witness the seriousness of the situation and the importance ofbeing careful and correct. The promise thus serves a practical, prophylactic purpose. A witness who is able to communicate theevidence, as required by s. 16(3), is necessarily able to relate events. This in turn implies an understanding of what really happened —i.e. the truth — as opposed to fantasy. When such a witness promises to tell the truth, this reinforces the seriousness of the occasion andthe need to do so.

In dealing with the evidence of children in s. 16.1, Parliament held that a promise to tell the truth was all that isrequired of a child capable of responding to questions. Parliament did not think a child’s promise, without more, is an empty gesture.

Why should it be otherwise for an adult with the mental ability of a child? [37] The second argument raised in support of the proposition that “promising to tell the truth” in s. 16(3) implies arequirement that the witness must show that she understands the nature of the obligation to tell the truth is that Parliament has notenacted a ban on questioning adult witnesses with mental disabilities on the nature of the obligation to tell the truth, as it did for childwitnesses in 2005 in s. 16.1(7).

To understand this argument, we must briefly trace the history of s. 16.1. [38] In 2005, following the Bala Report, Parliament once more modified the Canada Evidence Act’s provisions ontestimonial competence, but this time only with respect to children. The central focus of the 2005 legislation relating to the CanadaEvidence Act was the competence of child witnesses, with the aim of altering the restrictive gloss the case law had placed on theprevious provisions relating to the capacity of children to testify. Chief among this case law was R. v. Khan (1988), (ON CA), 42 C.C.C. (3d) 197 (Ont.

C.A.), which insisted that a child understand the nature of the obligation to tell the truth before thechild could testify.

Section 16.1, in unequivocal language, rejected this requirement. It stated: 16.1 (1) [Person under fourteen years of age] A person under fourteen years of age is presumed to have the capacity totestify. (2) [No oath or solemn affirmation] A proposed witness under fourteen years of age shall not take an oath or make asolemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation. (3) [Evidence shall be received] The evidence of a proposed witness under fourteen years of age shall be received if they

are able to understand and respond to questions. (4) [Burden as to capacity of witness] A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions. (5) [Court inquiry] If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions. (6) [Promise to tell truth] The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth. (7) [Understanding of promise] No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court. (8) [Effect] For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath. [ 39 ]

Section 16.1, like s. 16(3) governing adult witnesses with mental disabilities, imposed two preconditions for the testimony of children: (1) that the child be able to understand and respond to questions (s. 16.1(5)); and (2) that the child promise to tell the truth (s. 16.1(6)).

But, taking direct aim at Khan ’s insistence that children be questioned on their understanding of the nature of the obligation to tell the truth, s. 16.1(7) went on to state explicitly that children not “ be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court ”. [ 40 ] The argument is that if Parliament had intended adult witnesses with mental disabilities to be competent to testify simply on the basis of the ability to communicate and the making of a promise, it would have enacted a ban on questioning them on their understanding of the nature of the obligation to tell the truth, as it did for child witnesses under s. 16.1(7).

The absence of such a provision, it is said, requires us to draw the inference that Parliament intended that adult witnesses with mental disabilities must be questioned on the obligation to tell the truth. [ 41 ] First, this argument overlooks the fact that Parliament’s concern in enacting the 2005 amendment to the Canada Evidence Act was exclusively with children. The changes arose out of the Bala Report on the problems associated with prosecuting crimes against children.

The Parliamentary debates on s. 16.1 attest to the fact that the focus of the 2005 amendment was on children, and only children. [ 42 ] Moreover, it is apparent from the Parliamentary works on Bill C-2 that s. 16.1(7) was intended to confirm the existing formal requirement of a promise alone, and not to modify the law: see Appendix B.

The record of the standing House of Commons committee which studied Bill C-2 contains a discussion between Joe Comartin and Professor Nicholas Bala, during a debate on the phrasing of s. 16.1(7), which revealed that the original intent of s. 16(3) was to allow children and adults with mental disabilities to testify by merely promising to tell the truth, once they were held to be able to communicate the evidence: [Prof. Nicholas Bala:] . . . the concern I have arises out of the fact that the present legislation has been interpreted very narrowly by judges.

When you actually go back through the transcripts — I was actually a witness in 1988, when the provisions came into effect — I think it was thought by people, well, we don’t have to be very explicit here, because the judges will get this right . Obviously, on many issues we do have to trust our judiciary, but on certain issues I think it’s important to give them as much direction as possible.

My concern is that some judge might read this — and we have quite a lot of case law about this — and say, okay, I can't ask you about your understanding of the nature of the promise, but what about asking you questions about truth-telling? Parliament specifically said in subsection 16.1(6) that you’ll be required to promise to tell the truth.

We can’t ask about the nature of the promise, but can we ask you about “truth” and “lie”? [Emphasis added; p. 7.] (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) [ 43 ] This view was confirmed by Ms. Catherine Kane, Director of the Policy Centre for Victim Issues of the Department of Justice Canada, during her opening statement to the Standing Senate Committee on Legal and Constitutional Affairs: [Ms. Catherine Kane:] . . .

These amendments were made in 1988 with the purpose of trying to more readily permit children’s evidence to be received. However, as the cases have interpreted this provision, we have not seen that ready acceptance of children’s evidence. If these two criteria are met, the child gives evidence under an oath or an affirmation. However, if the child does not understand the nature of the oath or the affirmation but has the ability to communicate the evidence, the evidence is received on a promise to tell the truth. That is the current law. While it may appear quite sensible on its face, the

interpretations and practise of these provisions do not reflect Parliament’s intention in amending the Evidence in an effort to permit children’s evidence to be admitted more readily. As interpreted by the courts,

section 16 requires that before the child is permitted to testify, the child be subjected to an inquiry as to his or her understanding of the obligation to tell the truth, the concept of a promise , and an ability to communicate. [Emphasis added; pp. 105-6.] (Senate, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs , No. 18, 1st Sess., 38th Parl.,

July 7, 2005) Therefore, 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. [ 44 ] Second, as already mentioned, the wording of s. 16(3) governing the competence of adult witnesses had since 1987 required only a promise to tell the truth. There was no need for Parliament to add a provision on questioning an adult witness’s understanding of the nature of the obligation to tell the truth in s. 16(3) .

The fact that Parliament did so 18 years later for children’s evidence under s. 16.1(7) reflects concern with the fact that courts in children’s cases, such as Khan , were continuing to engage in this type of questioning, instead of accepting a simple promise to tell the truth. It does not evince an intention that Parliament intended the words “promising to tell the truth” to have different meanings in ss. 16(3) and 16.1(6). [ 45 ] Third, the argument that the enactment of s. 16.1(7) for children but not for adults endorsed as applicable to adult witnesses the earlier judicial

interpretation of the provisions relating to children does not take into account s. 45 of the federal

Interpretation Act , R.S.C. 1985, c.

I-21, which provides: 45. (1) [Repeal does not imply enactment was in force] The repeal of an enactment in whole or in part shall not be deemed to be or to involve a declaration that the enactment was previously in force or was considered by Parliament or other body or person by whom the enactment was enacted to have been previously in force. (2) [Amendment does not imply change in law] The amendment of an enactment shall not be deemed to be or to involve a declaration that the law under that enactment was or was considered by Parliament or other body or person by whom the enactment was enacted to have been different from the law as it is under the enactment as amended. (3) [Repeal does not declare previous law] The repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declaration as to the previous state of the law. (4) [Judicial construction not adopted] A re-enactment, revision, consolidation or amendment of an enactment shall not be deemed to be or to involve an adoption of the construction that has by judicial decision or otherwise been placed on the language used in the enactment or on similar language. [ 46 ] Section 45(3) of the

Interpretation Act provides that the amendment of an enactment (in this case the adoption of s. 16.1(7) ) shall not be deemed to involve any declaration as to the meaning of the previous law (in this case s. 16(3) ). Therefore, no inference as to the meaning of s. 16(3) flows from the mere adoption of s. 16.1(7) with respect to children. [ 47 ] Additionally, s. 45(4) of the

Interpretation Act states that the re-enactment of a provision (in this case, s. 16 with respect to adults with mental disabilities) is not sufficient to infer that Parliament adopted the provision’s judicial

interpretation which prevailed at the time of the re-enactment. It follows that the fact that s. 16 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. [ 48 ] Fourth, the argument that the absence of the equivalent of s. 16.1(7) in s. 16(3) means that adult witnesses with mental disabilities must demonstrate an understanding of the nature of the duty to speak the truth is logically flawed. The argument rests on the premise that s. 16(3) , unless amended, requires an inquiry into the witness’s understanding of the obligation to tell the truth.

On this basis, it asserts that, unless the ban on questioning in s. 16.1(7) dealing with children is read into s. 16(3) , such questioning must be conducted. Thus, my colleague Binnie J. states that “[t]he Crown invites us, in effect, to apply the ‘don’t ask’ rule governing children to adults whose mental capacity is challenged” (para. 127). [ 49 ] The fallacy in this argument is the starting assumption that s. 16(3) requires importing a “don’t ask” rule. As explained earlier, it does not.

Section 16(3) sets two requirements for the competence of adults with mental disabilities: the ability to communicate the evidence and a promise to tell the truth. It is self-sufficient.

Nothing further need be imported. [ 50 ] Fifth, and following from the previous point, the argument relies on the assumption that unless it can be shown that adult witnesses with mental disabilities are the same as, or like, child witnesses, adult witnesses with mental disabilities must be treated differently, and subjected to an inquiry into their understanding of the nature of the obligation to tell the truth before they can be held competent to testify.

Thus Binnie J. states that before s. 16(3) can be read as importing the “don’t ask” rule, it is for the Crown to establish that there is no difference between children and adults with mental disabilities on the test of what reasonable people would accept. He opines that an assertion of equivalency is “pure assertion on a key issue” (para. 130). [ 51 ] There are several answers to this “equivalency” argument. First, like the previous argument, it rests on the mistaken assumption that the Crown asks us to import a “don’t ask” rule into s. 16(3) .

The plain words of s. 16(3) do not require an understanding of the obligation to tell the truth, and it is for the party seeking to depart from the text of s. 16(3) to demonstrate that adults with mental disabilities should be treated differently from children. Second, the argument suffers from inconsistency. It claims that the equivalency of the vulnerabilities of these two groups of witnesses is “pure assertion on a key issue”, but at the same time claims that the previous judge-made law for children ( Khan ) should apply to adult witnesses with mental disabilities.

Third, one may question how equivalency, were it needed, should be established: Is the proper approach to competence what reasonable people would conclude, or judicial opinion informed by assessment of the situation and expert opinion? [ 52 ] The final and most compelling answer to the equivalency argument is simply this: When it comes to testimonial competence, precisely what, one may ask, is the difference between an adult with the mental capacity of a six-year-old, and a six-year- old with the mental capacity of a six-year-old?

Parliament, by applying essentially the same test to both under s. 16(3) and s. 16.1(3) and (6) of the Canada Evidence Act , implicitly finds no difference. In my view, judges should not import one. [ 53 ] I conclude that s. 16(3) of the Canada Evidence Act , properly interpreted, establishes two requirements for an adult

with mental disabilities to take the stand: the ability to communicate the evidence and a promise to tell the truth. A further requirementthat the witness demonstrate that she understands the nature of the obligation to tell the truth should not be read into the provision. C. The Jurisprudence [54] I have concluded that s. 16(3), on its plain words and in its context, reveals only two requirements for an adult withmental disabilities to have the capacity to testify: (1) that the witness be able to communicate the evidence, and (2) that the personpromise to tell the truth.

It is necessary next to consider whether the jurisprudence requires a different result. My colleague Binnie J.argues that the cases, and in particular Khan, require that “promising to tell the truth” in s. 16(3) must be read as impliedly importing anadditional requirement — an understanding of the nature of the obligation engaged by the promise. With respect, I cannot agree. [55] It is necessary at the outset to describe what Khan decided. Khan was concerned with the predecessor of s. 16,which was first enacted in 1893 (S.C. 1893, c. 31, s. 25) and dealt only with children.

The provision required that the proposed witness“understan[d] the duty of speaking the truth”. This phrase was deleted when the provision was amended in 1987. Explaining thestatutory requirement that the witness must “understan[d] the duty of speaking the truth” in Khan, Robins J.A. stated: To satisfy the less stringent standards applicable to unsworn evidence, the child need only understand the duty to speakthe truth in terms of ordinary everyday social conduct.

This can be demonstrated through a simple line of questioning directed to whetherthe child understands the difference between the truth and a lie, knows that it is wrong to lie, understands the necessity to tell the truth,and promises to do so. [Emphasis added; p. 206.] [56] This oft-cited statement of the law proved difficult to apply. The first sentence suggests that the threshold fortestimonial competence is low, based on truth telling in “everyday social conduct”.

This suggests that the judge need only be satisfiedthat the witness understands the difference between truth and falsehood in relation to everyday matters and activities — not in someabstract metaphysical sense. The second sentence in this passage from Khan, specifically the phrases “knows that it is wrong to lie” and“understands the necessity to tell the truth” (emphases added), move beyond everyday social conduct into more abstract, philosophicalrealms.

In obiter, Robins J.A. opined that the same test should be applied to the post-1987 section, on the grounds that without therequirement that the witness understand what a promise is and the importance of keeping it, the promise would be an “empty gesture”. [57] In R. v. Farley (1995), (ON CA), 23 O.R. (3d) 445, the Ontario Court of Appeal adopted thisobiter dictum and applied it to the post-1987 version of s. 16(3), the provision applicable in this case. Other provincial courts of appealfollowed suit: R. v. P.M.F. (1992), (NS CA), 115 N.S.R. (2d) 38; R. v. McGovern (1993), (MBCA), 82 C.C.C. (3d) 301 (Man.); R. v.

S.M.S. (1995), (NB CA), 160 N.B.R. (2d) 182. In R. v. Rockey, (SCC), [1996] 3 S.C.R. 829, a minority of this Court, per McLachlin J., held that a child was incompetent to testify on the basis ofhis inability to communicate the evidence, referring to Farley with approval; the question of whether s. 16(3) incorporated the Khan testwas not at issue in that case. Appellate courts continue to require demonstration of an understanding of the duty to speak the truth unders. 16(3): R. v. Ferguson (1996), (BC CA), 112 C.C.C. (3d) 342 (B.C.); R. v. Parrott (1999), (NLCA), 175 Nfld. & P.E.I.R. 89 (Nfld.); R. v.

A. (K.) (1999), (ON CA), 137 C.C.C. (3d) 554 (Ont.); R. v. R.J.B., 2000ABCA 103, 255 A.R. 301; R. v. Brouillard, 2006 QCCA 1263, 44 C.R. (6th) 218; R. v. E.E.D., 2007 SKCA 99, 304 Sask. R. 192.

In thecase at bar, the Ontario Court of Appeal affirmed that view, upholding the trial judge’s insistence on the understanding of the duty tospeak the truth not merely in “everyday social conduct”, but on an understanding of the duty abstracted from everyday situations. [58] This is the first case in which this Court has been squarely called upon to interpret s. 16(3) of the Canada EvidenceAct and confront the legacy of the obiter dicta in Khan.

In my view, the test proposed in Khan is unhelpful and inapplicable, insofar as itis read as requiring or condoning an abstract inquiry into the nature of the obligation to tell the truth. [59] First and foremost, Khan was concerned with a substantially different pre-1987 version of s. 16, which was adoptedin 1893 and which explicitly required that the proposed witness “understands the duty of speaking the truth”. The current provisionrequires only that the witness be able to communicate the evidence and promise to tell the truth.

It speaks only of two practical, lessabstract, requirements — the ability to communicate the evidence and a promise to tell the truth. In short, Khan imposed a requirementto demonstrate understanding of the nature of the obligation to tell the truth, based on the phrase “understands the duty of speaking thetruth”. That phrase has been removed from the current s. 16(3). It follows that Khan simply does not apply to this case, and that theobiter dictum in Khan suggesting that it does should be rejected. In 1987, Parliament deleted the requirement of understanding thenature of the duty to tell the truth.

Judges should not bring it back in. [60] Second, the Khan test, as already noted, is ambivalent. It first suggests that all that is required is an understanding ofthe duty to speak the truth “in terms of ordinary everyday social conduct” (p. 206). However, it then goes on to illustrate this test interms abstracted from everyday social conduct. In my view, the former approach is preferable. [61] This lower threshold recognizes that witnesses of limited mental ability, whether by reason of age or disability,understand and articulate events in the concrete terms of the world around them.

The capacity to abstract from the concrete and drawgeneralizations about conduct unrelated to concrete situations typically develops at a later, more advanced stage of mental development. A child or adult with mental disabilities may be able to distinguish between what is true and false or right and wrong in a particularsituation, yet lack the ability to articulate in general language the reasons for this understanding.

To insist on the articulation of thenature of the obligation to tell the truth, abstracted from particular situations, may result in the witness’s evidence being excluded, eventhough it is reliable. [62] Third, as discussed above, Parliament’s response to Khan’s insistence on an understanding of the duty to speak thetruth in abstract terms and the metaphysical questioning this insistence gave rise to, was to expressly forbid such inquiries in the case ofchildren by enacting s. 16.1(7) in 2005.

Why then, one may ask, should courts struggle to read a contrary purpose into the plainlanguage of s. 16, which requires only a concrete inquiry into whether the proposed witness can communicate the evidence and apromise to tell the truth? [63] I conclude that, insofar as the authorities suggest 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 thatthe witness be able to communicate the evidence and promise to tell the truth. D. Policy Considerations [64] I have concluded that s. 16(3) imposes two requirements for the testimonial competence of an adult with mentaldisabilities: (1) the ability to communicate the evidence; and (2) a promise to tell the truth.

It is unnecessary and indeed undesirable toconduct an abstract inquiry into whether the witness generally understands the difference between truth and falsity and the obligation togive true evidence in court. Mentally limited people may well understand the difference between the truth and a lie and know theyshould tell the truth, without being able to articulate in general terms the nature of truth or why and how it fastens on the conscience in acourt of law. Section 16(3), in assessing the witness’s capacity, focuses on the concrete acts of communicating and promising.

Thewitness is not required to explain the difference between the truth and a lie, or what makes a promise binding. I have argued that thisresult follows from the plain words of s. 16 of the Canada Evidence Act, and that judges should not by implication add other elements tothe dual requirements of an ability to communicate evidence and a promise to tell the truth imposed by s. 16(3). [65] The discussion of the proper

interpretation of s. 16(3) of the Canada Evidence Act would not be complete, however,without addressing the policy concerns underlying the issue. Two potentially conflicting policies are in play. The first is the social needto bring to justice those who sexually abuse people of limited mental capacity — a vulnerable group all too easily exploited. The secondis to ensure a fair trial for the accused and to prevent wrongful convictions. [66] The first policy consideration is self-evident and requires little amplification. Those with mental disabilities are easyprey for sexual abusers.

In the past, mentally challenged victims of sexual offences have been frequently precluded from testifying, noton the ground that they could not relate what happened, but on the ground that they lacked the capacity to articulate in abstract terms thedifference between the truth and a lie and the nature of the obligation imposed by promising to tell the truth. As discussed earlier, suchwitnesses may well be capable of telling the truth and in fact understanding that when they do promise, they should tell the truth.

Toreject this evidence on the ground that they cannot explain the nature of the obligation to tell the truth in philosophical terms that eventhose possessed of normal intelligence may find challenging is to exclude reliable and relevant evidence and make it impossible to bringto justice those charged with crimes against the mentally disabled. [67] The inability to prosecute such crimes and see justice done, whatever the outcome, may be devastating to the familyof the alleged victim, and to the victim herself. But the harm does not stop there.

To set the bar too high for the testimonial competenceof adults with mental disabilities is to permit violators to sexually abuse them with near impunity. It is to jeopardize one of thefundamental desiderata of the rule of law: that the law be enforceable. It is also to effectively immunize an entire category of offendersfrom criminal responsibility for their acts and to further marginalize the already vulnerable victims of sexual predators. Without arealistic prospect of prosecution, they become fair game for those inclined to abuse. [68] What then of the policy considerations on the other side of the equation?

Here again, the starting point is clear. TheCanadian Charter of Rights and Freedoms guarantees a fair trial to everyone charged with a crime. This right cannot be abridged; anunfair trial can never be condoned. [69] It is neither necessary nor wise to enter on the vast subject of what constitutes a fair trial. One searches in vain forexhaustive

definitions in the jurisprudence. Rather, the approach taken in the jurisprudence is to ask whether particular rules oroccurrences render a trial unfair. It is from that perspective that we must approach this issue in this case. [70] The question is this: Does allowing an adult witness with mental disabilities to testify when the witness cancommunicate the evidence and promises to tell the truth render a trial unfair?

In my view, the answer to this question is no. [71] The common law, upon which our current rules of evidence are founded, recognized a variety of rules governing thecapacity to testify in different circumstances. The golden thread uniting these varying and different rules is the principle that theevidence must meet a minimal threshold or reliability as a condition of being heard by a judge or jury.

Generally speaking, this thresholdof reliability is met by establishing that the witness has the capacity to understand and answer the questions put to her, and by bringinghome to the witness the need to tell the truth by securing an oath, affirmation or promise. There is no guarantee that any witness — eventhose of normal intelligence who can take the oath or affirm — will in fact tell the truth, all the truth, or nothing but the truth.

What thetrial process seeks is merely a basic indication of reliability. [72] Many cases, including Khan, have warned against setting the threshold for the testimonial competence too high foradults with mental disabilities: R. v. Caron (1994), (ON CA), 72 O.A.C. 287; Farley; Parrott. This reflects the factthat such witnesses may be capable of giving useful, relevant and reliable evidence. It also reflects the fact that allowing the witness totestify is only the first step in the process. The witness’s evidence will be tested by cross-examination.

The trier of fact will observe thewitness’s demeanour and the way she answers the questions. The result may be that the trier of fact does not accept the witness’sevidence, accepts only part of her evidence, or reduces the weight accorded to her evidence. This is a task that judges and juries performroutinely in a myriad of cases involving witnesses of unchallenged as well as challenged mental ability. [73] The requirement that the witness be able to communicate the evidence and promise to tell the truth satisfies the lowthreshold for competence in cases such as this.

Once the witness is allowed to testify, the ultimate protection of the accused’s right to afair trial lies in the rules governing admissibility of evidence and in the judge’s or jury’s duty to carefully assess and weigh the evidencepresented. Together, these additional safeguards offer ample protection against the risk of wrongful conviction. E.

Summary of the Section 16(3) Test [74] To recap, s. 16(3) of the Canada Evidence Act imposes two conditions for the testimonial competence of adults withmental disabilities: (1) the witness must be able to communicate the evidence; and

(2) the witness must promise to tell the truth. Inquiries into the witness’s understanding of the nature of the obligation this promise imposes are neither necessary nor appropriate. It is appropriate to question the witness on her ability to tell the truth in concrete factual circumstances, in order to determine if she can communicate the evidence. It is also appropriate to ask the witness whether she in fact promises to tell the truth.

However, s. 16(3) does not require that an adult with mental disabilities demonstrate an understanding of the nature of the truth in abstracto , or an appreciation of the moral and religious concepts associated with truth telling. [ 75 ] The following observations may be useful when applying s. 16(3) in the context of s. 16 of the Canada Evidence Act . [ 76 ] First, the voir dire on the competence of a proposed witness is an independent inquiry: it may not be combined with a voir dire on other issues, such as the admissibility of the proposed witness’s out-of-court statements. [ 77 ] Second, although the voir dire should be brief, it is preferable to hear all available relevant evidence that can be reasonably considered before preventing a witness to testify.

A witness should not be found incompetent too hastily. [ 78 ] Third, the primary source of evidence for a witness’s competence is the witness herself. Her examination should be permitted. Questioning an adult with mental disabilities requires consideration and accommodation for her particular needs; questions should be phrased patiently in a clear, simple manner. [ 79 ] Fourth, the members of the proposed witness’s surrounding who are personally familiar with her are those who best understand her everyday situation.

They may be called as fact witnesses to provide evidence on her development. [ 80 ] Fifth, expert evidence may be adduced if it meets the criteria for admissibility, but preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness. [ 81 ] Sixth, the trial judge must make two inquiries during the voir dire on competence: (

a) does the proposed witness understand the nature of an oath or affirmation, and (

b) can she communicate the evidence? [ 82 ] Seventh, the second inquiry into the witness’s ability to communicate the evidence requires the trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions. It may be useful to ask if she can differentiate between true and false everyday factual statements. [ 83 ] Finally, the witness testifies under oath or affirmation if she passes both parts of the test, and on promising to tell the truth if she passes the second part only. III.

Application [ 84 ] During the voir dire on K.B.’s testimonial capacity, the Crown posed a line of questions going to whether she could tell the difference between true and false factual statements in concrete circumstances. These were relevant to K.B.’s basic ability to communicate the evidence: MR. SEMENOFF: Q. How old are you now, [K.B.]? A. I’m 22, you know that. Q. 22? When’s your birthday? A. [Birth date]. Q. [Birth date]. Are you going to school now or are you done with school? A. I’m not done in school yet. Q. What school do you go to, [K.B.]? A. [Name of school]. Q.

How long -- do you know how long you’ve been going to [name of school]? A. I don’t know. Q. Did you go to any school before you went to [name of school]? A. From [name of previous school]. Q. From [name of previous school]. Okay. Did you have a teacher from that school, a Ms. [W.]? A. Ms. [R.]. Q. Oh, [R.]. Okay. And I call her Ms. [W.], do you know what her name is, is it [R.] or is it Ms. [W.]?

A. [R.]. Q. Okay. . . . Q. [K.B.], if I were to tell you that the room that we’re in that the walls in the room are black[,] would that be a truth or a lie, [K.B.]? A. A lie. Q. Why would it be a lie? A. It’s different colours in here. Q. There are different colours in here. What colour are the walls? A. Purple. Q. Purple. Okay. If I were to tell you that the gown that I’m wearing that that is black, would that be a truth or a lie? A. The truth. Q. And why is that? A. I don’t know. Q. You don’t know. Is it a good thing or a bad thing to tell the truth? A. Good thing. Q.

Is it a good thing or a bad thing to tell a lie? A. Bad thing. (A.R., vol. I, at pp. 111-13) However, the trial judge went on to question K.B. on her understanding of the meaning of truth, religious concepts, and the consequences of lying. [THE COURT:] [Q.] Do you go to church, [K.B.]? A. No. Q. No. Have you ever been taught about God or anything like that? A. No. Q. No? All right. What happens if you steal something? A. I don’t know. Q. You don’t know. If you steal something and no one sees it, will anything happen to you? Nothing will happen. Why won’t anything happen? A. I don’t know. Q. You don’t know.

Tell me what you think about the truth. A. I don’t know. Q. You don’t know.

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