Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.

This case concerned access to justice for women labelled with intellectual disabilities.

LEAF, in partnership with the DisAbled Women’s Network Canada (DAWN) and ARCH Disability Law Centre (LEAF-DAWN-ARCH), intervened before the Supreme Court of Canada.

Facts

In this case, a woman labelled with an intellectual disability disclosed sexual assault. At trial, defence counsel argued that the complainant’s evidence was unreliable, because her disability made her suggestible (as in, her answers were easily influenced by others). The trial judge did not accept these submissions, and convicted the accused of sexually assaulting the complainant.

The accused appealed to the Court of Appeal and argued, in part, that the judge had failed to adequately explain why he found the complainant reliable. The majority of the Ontario Court of Appeal overturned the conviction and ordered a new trial, finding that the judge’s reasons were not sufficient. In particular, the majority focused on the expert report from the trial that discussed the complainant’s suggestibility, in relation to that of the general population, and held that the trial judge failed to adequately address the issue of the complainant’s reliability and suggestibility in his reasons.

Arguments

LEAF-DAWN-ARCH argued that a substantive equality analysis requires the Court to make assessments based on the actual abilities and individual circumstances of women with disabilities (such as their ability to describe what happened), as opposed to generalizations about disabilities. The majority decision of the Court of Appeal creates an additional barrier to access to justice for women labelled with intellectual disabilities by reinforcing harmful stereotypes about them.

The majority of the Court of Appeal focused on the medical expert’s general opinion over the trial judge’s individualized assessment of the complainant’s evidence. By preferring the expert’s generalized evidence over the complainant’s testimony, the majority’s approach could require trial judges in future cases to address the suggestibility of a complainant labelled with an intellectual disability, even if there is no evidence of the complainant being suggestible during their interaction with law enforcement when they report, or at trial.

Outcome

The Supreme Court heard arguments in this case in November 2020. They gave their decision on the same day, allowing the appeal. They agreed with Justice Peppal’s reasons, who dissented at the Court of Appeal decision, underlining the fact that courts must be careful not to follow expert evidence that relies on generalizations. Rather, courts should look to the individual characteristics of the complainant when weighing their reliability and creditability and be careful not to allow stereotypes to play a role.

LEAF is grateful to Suzan Frazer and Kerri Joffe, counsel for LEAF-DAWN-ARCH in this case, and Nadia Effendi, Ottawa agent for LEAF-DAWN-ARCH.

Download the factum here.

Read the Supreme Court of Canada’s decision here.

LEAF-DAWN-ARCH’s arguments were informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The committee members for this intervention are (in alphabetical order): Shelley Fletcher (People First of Canada), Karine-Myrgianie Jean-François (DAWN), Barb McIntyre (Boost Child & Youth Advocacy Centre), Janet Mosher (Osgoode Hall Law School), Roxanne Mykitiuk (Osgoode Hall Law School), and Tess Sheldon (Faculty of Law, University of Windsor).