The Intellectually Disabled Witness and the Requirement to Promise to Tell the Truth

Dalhousie Law Journal, Volume 40, Number 1, Spring 2017

41 Pages Posted: 20 Jun 2018

See all articles by Jonas-Sébastien Beaudry

Jonas-Sébastien Beaudry

McGill University - Faculty of Law; McGill University - Institute for Health and Social Policy

Date Written: June 2, 2018

Abstract

Mentally disabled victims of sexual crimes may be prevented from acting as witnesses in a criminal trial if their mental capacity is challenged. They face an important obstacle to access justice if the case against their alleged aggressor mostly relies on their testimony. In R. v. D.A.I., in 2012, the Supreme Court of Canada revisited the Canada Evidence Act’s requirement of promising to tell the truth and lowered the previously ambiguous threshold of cognitive capacities required to satisfy this requirement. The Evidence Act has been amended in 2015 to reflect the Court’s decision. While apparently facilitating people with mental disabilities’ (PMD) access to justice, I propose that the Court’s interpretation of the Evidence Act contains a problematic normalizing outlook on PMD qua legal subjects, leaves some problems untouched, and could potentially deflate the political urgency of addressing them.

Suggested Citation

Beaudry, Jonas-Sébastien, The Intellectually Disabled Witness and the Requirement to Promise to Tell the Truth (June 2, 2018). Dalhousie Law Journal, Volume 40, Number 1, Spring 2017, Available at SSRN: https://ssrn.com/abstract=3189427

Jonas-Sébastien Beaudry (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

McGill University - Institute for Health and Social Policy ( email )

Charles Meredith House
1130 Pine Avenue West
Montreal, Quebec H3A1A3
Canada

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