Actual Abilities of Witnesses Matter; Not Stereotypes

  • November 13, 2020
  • Anoop Kalsi

In the November 6, 2020 decision of R. v. Slatter, 2020 SCC 36 (link), the Supreme Court of Canada (SCC) confirmed that it is the actual ability of witnesses to recall and recount events that matter most when assessing credibility; this is the case whether the witness has a disability or not. The case involved the sexual assault of a person with a disability. In its decision (link) the Court of Appeal overturned the conviction based on expert evidence that the complainant’s disability may make her susceptible to suggestion. The SCC ruled that the complainant’s actual ability to recall and recount the events is what mattered and that the Trial Judge properly focused on this. The SCC restored the conviction and issued a caution on the reliance on expert evidence pertaining to credibility when dealing with an individual who has an intellectual or developmental disability.

The SCC cautioned against the use of evidence that attributes general characteristics to an individual rather than focusing on the individual’s capabilities. The Court stated that over-reliance on such generalities can “perpetuate harmful myths and stereotypes about individuals with disabilities”. Applying these stereotypes jeopardizes access to justice. Not only would witnesses with disabilities have to meet the usual standards for credibility but they would also have to overcome the stereotypes applied to them because of their disability. The SCC’s ruling affirms that this barrier should be eliminated. While this decision deals with a criminal matter, the SCC’s recognition and denunciation of this barrier plays an important role in any matter involving a credibility assessment of a witness with a disability.

Bakerlaw has assisted many clients with disabilities in preparing for, and testifying in their case. We assist clients in securing the accommodations so that they can testify safely and in a manner which accommodates their disability related needs. Click here (link) to see a decision from the HRTO where we secured accommodations for our client while testifying in the form of: testifying in a separate room, accompaniment of a support person, and taking breaks as required during her testimony. These accommodations can be especially important in cases involving sexual harassment and sexual assault.

At bakerlaw, we are dedicated to access to justice. This might look different for different clients. Not sure if we can help? Visit our legal services page here (link) to see some of our previous work. Ready to get in touch? Visit our Retaining bakerlaw page here (link) or fill in our online confidential intake form (link).

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