Testimony
Continued From Page 1
interpret the Charter’s fair trial
guarantee. “The majority judgment unacceptably dilutes the
protection Parliament intended
to provide to accused persons,”
Justice Binnie wrote for the
minority.
Condemning the majority for
turning the promise to tell the
truth into “an empty formality,”
the dissenters warned of “unfair
prejudice to the accused” due to
the court’s “marked departure”
from its previously “balanced
approach” between ensuring fair
trials and bringing sexual abusers to justice.
The ruling was hailed by the
intervener DisAbled Women’s
Network Canada and the
Women’s Legal Education and
Action Fund (LEAF) as a necessary stepping stone to prosecuting successfully those who sexually abuse vulnerable women.
“The Supreme Court’s judgment clarifies that the Canada
Evidence Act was never intended
to exclude the testimony of
mentally disabled witnesses
who can describe their experiences,” said LEAF’s counsel Joanna Birenbaum.
Birenbaum
Birenbaum said witnesses’
credibility is a matter for examination, cross-examination, and
assessment of the evidence by
the judge or jury. Yet, before
D.A.I., “judges and juries were
deprived of the relevant testimony of persons with mental
disabilities, simply because these
witnesses couldn’t fully articulate abstract concepts like ‘truth,’
‘falsehood’ and ‘promise’ —
concepts which are difficult for anyone to explain,” she said.
Counsel for D.A.I., Howard
Krongold of Ottawa’s Webber
Schroeder, said the decision
illustrates a troubling trend. “It
seems that perhaps more and
more, where there is a conflict
between the interests of a crim-
inal accused and some other
party, the accused’s interests
are prevailing less and less in
that balance,” he told The Law-
yers Weekly.
Certainly, there is
a concern that we
may lose some of
the balance that we
presently have on
the court, and that
we’ve had in the past.
Howard Krongold,
Webber Schroeder
to you?’ Any of us asked that
question would have a hell of a
trouble with it.”
Brendan Crawley, a spokes-
man for the appellant Ontario
Crown, declined to comment
because of the possibility of a
new trial.
Section 16( 3) of the Canada
Evidence Act, relaxes the normal
rules of testimonial capacity for
adults with mental disabilities. A
person who does not understand
the nature of an oath or a solemn
affirmation may provide unsworn
testimony if he or she is able to
“communicate the evidence” and
promises “to tell the truth.”
Observing that “sexual assault
is an evil,” Chief Justice McLachlin
wrote that “to set the bar too high
for the testimonial competence of
adults with mental disabilities is to
permit violators to sexually abuse
them with near impunity.”
She concluded that “the word-
ing of s. 16( 3), its history, its
internal logic and its statutory
context all point to the conclu-
sion that s. 16( 3) should be read
as it stands, without reading in a
further requirement that the wit-
ness demonstrate an under-
standing of the nature of the
obligation to tell the truth.”
She said there is “ample pro-
tection” for the accused’s right to
a fair trial in the rules governing
admissibility, and in the judge or
jury’s duty to carefully assess and
weigh the evidence.
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Renewed call for ‘judicial safety valve’
Pushback
Continued From Page 1
ment” when he posed in 2009 for
a photo with a loaded illegal
handgun to impress his friends
on Facebook. However, he had no
other criminal intent, she found.
To sentence him to three years
in prison for “his single act of bad
judgment and foolishness”—tri-
ple what he would otherwise
get — would be “fundamentally
unfair, outrageous, abhorrent
and intolerable,” she held. “To
impose such onerous punish-
ment would, in my view, be
grossly disproportionate to what
Mr. Smickle deserves.”
Toronto defence counsel Paul
Calarco, a member of the Can-
adian Bar Association’s criminal
justice section, told The Lawyers
Weekly the association finds it
“heartening” that the judge zeroed
in on the same general flaws high-
lighted by the CBA, criminolo-
gists, and other critics of manda-
tory minimum sentences.
“This case does show that the
plans for crime legislation
brought forth by Parliament are
very ill-thought out and really do
not respond to the needs of Canadian society now,” he said.
Calarco predicted the successful Charter attack will
The problem with the Crown’s argument
is that, regardless of its objective, the existing
legislation breaches Charter rights.
“
Ontario Superior Court Justice Anne Molloy
Derstine
embolden criminal lawyers to
mount other Charter challenges
to the raft of drug- and sex-crime mandatory minimums
contained in the Harper government’s omnibus crime Bill C- 10,
which is currently under study
in the Senate.
The decision “won’t have the
direct impact [on those senten-
ces] because each law is going to
have to be analyzed on its own,”
he said. “But I have no doubt that
many of the minimum sentences
are going to be challenged, and I
have no doubt that a number of
them are unconstitutional.”
Following the ruling, Ontario
Premier Dalton McGuinty said he
supports mandatory minimums
for gun crimes, but at press time,
the Crown had yet to announce
its next move.
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