DAI Case

In February 2012, the Supreme Court of Canada decided that people with intellectual disabilities should be allowed to testify.  Specifically, the question before the Court was whether people with intellectual disabilities are required to demonstrate an understanding of the concept of a “promise to tell the truth” in order to be permitted to testify.


The case before the Supreme Court of Canada involved a woman with an intellectual disability who claimed to have been repeatedly sexually assaulted by her mother’s ex-partner. Before she testified about the alleged assault, the lawyer for the accused sought to exclude her testimony on the basis that she was not mentally capable of “promising to tell the truth”. Though she promised to tell the truth to the court, the trial judge asked her a series of complex and abstract questions about the concept of truthfulness and falsity. For example, he asked her whether she believed in God and whether she went to Church. The woman was also questioned about the legal consequences of lying when testifying in a court. Peoples who do not have intellectual disabilities are not required to answer such questions in order to testify in court.  The trial judge, who was not satisfied by the answers she provided, decided that the woman should not be allowed to testify. As a result of this, the accused was acquitted.


The Council of Canadians with Disabilities intervened in this appeal before the Supreme Court of Canada. The CCD argued that people with disabilities should not face additional barriers when testifying in court and should have equal and meaningful access to justice.


The Chief Justice of the Supreme Court of Canada and three other judges agreed with the CCD and overturned the decision of the trial judge. The judges held that people with disabilities who promise to tell the truth to the court ought to be permitted to testify.  


The Court’s decision is a major victory for the rights of persons with disabilities for many reasons. Firstly, the decision ensures that all Canadians, including people with disabilities, have access to justice and are treated equally before the courts. Because of this decision, people with intellectual disabilities will be permitted to testify, just like all other individuals, and have their voices heard in court.


Secondly, the decision refutes a negative stereotype that people with disabilities are more likely to lie than people who do not have disabilities. In this case in particular, there was no basis to assume that the woman was less credible or honest than any other witness.  In fact, her teacher testified that it was not in her nature to lie.


Finally, the decision offers much needed protections to women with intellectual disabilities in criminal cases. Women with disabilities are nearly twice as likely to be sexually assaulted than women who do not have intellectual disabilities. Criminal proceedings involving women with disabilities must be accessible and must allow the voices of women to be heard so that those who commit such crimes can be brought to justice. ~ Anne Levesque, Co-chair CCD Human Rights Case