By Linda McKay-Panos

Reposted from LawNow 45(3) with permission

A recent Supreme Court of Canada (SCC) case, R v Slatter, 2020 SCC 36, provided a strong statement about the treatment of evidence provided by witnesses who have intellectual or developmental disabilities.

Thomas Slatter was convicted at trial of sexually assaulting an intellectually disabled 21-year-old woman (J.M.). The defense appealed the decision to the Ontario Court of Appeal (ONCA). They argued, among other issues, that the trial judge erred by: “not properly assessing the reliability of J.M.’s evidence and failing to address the expert evidence of her suggestibility” (para 56).

At the OCNA, the defence counsel argued that, “while the trial judge thoroughly examined J.M.’s credibility, he failed to address his mind to the reliability of her evidence, especially her propensity for suggestibility” (para 57). The defence asserted that the trial judge’s reasons were therefore insufficient (para 57).

At trial, the Crown introduced evidence from expert Dr. Jones to prove elements of the two offences for which Mr. Slatter had been charged. However, defence counsel thoroughly cross-examined Dr. Jones on J.M.’s suggestibility (para 61). Further, in his closing submissions, defence counsel repeatedly stressed the importance of this aspect of Dr. Jones’ evidence (para 62).

The majority of the ONCA stated (at para 70):

As the Crown correctly submits, a trial judge’s findings on the credibility and reliability are entitled to deference … The problem in this case is that there is nothing upon which to defer on the issue of suggestibility. The trial judge made no finding. He may have found this evidence to be inconsequential. He may have inadvertently overlooked this aspect of Dr. Jones’ evidence. It is a matter of speculation. The Crown essentially asks this court to review the record and, even in light of Dr. Jones’ evidence, find that J.M.’s reliability was not compromised by her suggestibility during the early stages of the investigation. This was a matter for the trial judge. It is beyond the scope of proper appellate review.

The ONCA majority allowed the appeal and ordered a new trial.

Madam Justice Pepall (ONCA) dissented. She noted that, in particular, the appellant relied on the testimony of Dr. Jones that people with intellectual disabilities are more likely to be suggestible, especially when the questioner is in a position of authority or trust.

Justice Pepall continued (at para 121):

Dr. Jones’ evidence was that the complainant was suggestible to biased questions as compared to the “normative” population at the 75th percentile. An average “normal” person is at the 50th percentile; the complainant was at the 75th percentile. Dr. Jones also testified that if the information is personal, significant, and emotive, a person with an intellectual disability is less suggestible. A sexual assault would decrease suggestibility because it is not only personal and significant, but it is also highly emotive.

In concluding that this ground of appeal should not succeed, Justice Pepall provided five reasons (para 151):

(1) a review of defence counsel’s closing submissions reveals that the trial judge was alive to the issue of the complainant’s reliability, and its subset of suggestibility; (2) a review of the trial judge’s reasons also reveals that the trial judge was alive to the issue of the complainant’s reliability, of which suggestibility is a subset; (3) a review of the transcript of evidence at trial undermines the allegation of suggestibility; (4) there was a paucity of evidence to form the foundation for suggestibility; and (5) the evidence of the BBQ incident lends support to both the accuracy and veracity of the complainant’s testimony.

The Crown appealed the ONCA majority’s ruling to the SCC.

In allowing the appeal, SCC Justice Moldaver (speaking for seven justices) stated:

We are all of the view that the appeal must be allowed, for the reasons of Justice Pepall, with which we agree.

We would simply underline that when assessing the credibility and reliability of testimony given by an individual who has an intellectual or developmental disability, 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.

The SCC’s judgment has been viewed favourably by equality and ability advocates. For example, Kerri Joffe, staff lawyer at ARCH Disability Law Centre and co-counsel with Suzan Fraser on the intervention, told Canadian Lawyer:

The Supreme Court’s reasons really highlight the key principle that this coalition wanted to establish, namely that judges must assess the reliability and credibility of evidence given by women labelled with intellectual disabilities based on that woman’s own individual ability to recall and recount the events, and not based on expert evidence that generally having an intellectual disability makes a person less reliable.

Again, substantive equality requires that each witness be assessed based on their individual capacities rather than stereotypical generalities about people with disabilities.