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

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.