For immediate release – November 5, 2020
Tomorrow, on November 6th, the Supreme Court of Canada will hear arguments in a sexual assault case from Ontario that has significant access to justice implications for complainants in sexual assault trials who are labelled with intellectual disabilities. The coalition consisting of LEAF, DisAbled Women’s Network Canada (DAWN), and ARCH Disability Law Centre (ARCH) are intervening in the appeal to highlight how substantive equality requires the court to assess a complainant’s reliability based on her own conduct and capacity on the stand, as opposed to generalizations and stereotypes about her disability.
This case is about a woman labelled with an intellectual disability who disclosed sexual assault. At trial, defence counsel argued the complainant was unreliable, because her intellectual disability made her suggestible – meaning that she was easily influenced by suggestions made 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 did not provide sufficient reasons explaining why he found the complainant reliable. The majority of the Court of Appeal for Ontario overturned the conviction and ordered a new trial, finding that the judge’s reasons were not sufficient. 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.
LEAF-DAWN-ARCH will argue that a substantive equality analysis requires the Court to make assessments of reliability based on the actual abilities and individual circumstances of women with disabilities (such as their ability to describe what happened). By preferring the expert’s generalized evidence over the complainant’s testimony, the majority’s approach could require trial judges in future cases to assess the suggestibility of any complainant labelled with an intellectual disability regardless of their actual capacity. This would effectively create a different and heightened standard for complainants labelled with intellectual disabilities, even when there is no evidence of a complainant being suggestible during their interaction with law enforcement when they report, or at trial.
“Substantive equality demands that complainants in the criminal justice system have their evidence evaluated based on their testimony – and not based on stereotypes, generalizations, or even unconscious biases about those labelled with intellectual disabilities,” says Megan Stephens, Executive Director and General Counsel of LEAF.
“I am highly troubled by the systemic ableism in the justice system that acts as a barrier to complainants with disabilities having their evidence assessed on the same standard as others,” says Bonnie Brayton, Executive Director of DAWN. “While the Supreme Court’s decision in D.A.I. [in 2012] sent a welcome message to women with disabilities that they can tell their stories in court about the abuse they experience, this decision suggests that they will face additional hurdles when they do so.”
“Ableist generalizations about women labelled with intellectual disabilities create additional barriers to justice; women must overcome those generalizations in order to be found to be reliable witnesses. Consequently, women with disabilities may be more reluctant to report sexual assault for fear that their testimony will not be believed or that medical and sensitive information about their disability will become public. This case presents an important opportunity to guard against harmful stereotypes and promote equal access to justice for sexual assault complainants labelled with intellectual disabilities,” says Robert Lattanzio, Executive Director of ARCH Disability Law Centre.
The hearing at the Supreme Court will take place on November 6th at 9:30am EST, which can be viewed by live webcast here.
Case committee and Counsel
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).
The LEAF staff who contributed to the case were Megan Stephens, Rosel Kim, and Nicole Biros-Bolton.
For background and judicial history of the case, see our earlier announcements when LEAF-DAWN-ARCH submitted its written submissions to the Supreme Court of Canada.
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For media inquiries, contact:
Suzan E. Fraser
Fraser Advocacy
T : 416 703 9555
E : [email protected]
Kerri Joffe, Staff Lawyer
ARCH Disability Law Centre
E: [email protected]
Rosel Kim, Staff Lawyer
Women’s Legal Education and Action Fund
E: [email protected]
About Women’s Legal Education and Action Fund (LEAF)
The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, LEAF has intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.
To support our work to protect the equality rights of women and girls, please consider donating today.
About DisAbled Women’s Network Canada (DAWN)
Established in 1985, DAWN is a national, feminist, cross-disability organization that has provided opportunities for self-determination and leadership development for women and girls with disabilities for 35 years. DAWN’s mission is to end the poverty, isolation, discrimination and violence experienced by Canadian women with disabilities and Deaf women. DAWN works towards the advancement and inclusion of women and girls with disabilities and Deaf women and girls by creating change at a systemic level. DAWN has intervened before the Supreme Court of Canada on its own, or in coalition with LEAF, in numerous criminal and human rights-related cases.
About ARCH Disability Law Centre (ARCH)
ARCH is a specialty legal clinic, with a 40-year history of defending and advancing the equality rights and inclusion of persons with disabilities. ARCH is governed by a community-based board of directors, the majority of whom are persons with disabilities. ARCH provides legal advice directly to persons with disabilities in Ontario, conducts test case litigation before all levels of courts and tribunals, and maintains an extensive law reform practice. ARCH has particular expertise in human rights law, equality rights law and access to justice for persons with disabilities.
