IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           CPR is charged with sexually exploiting BM, a person with a mental disability while being in a relationship of trust or authority with her between May 2005 and October 2013, and also with sexually assaulting her between these same dates.  His preliminary inquiry on these charges commenced on May 25, 2015.  At the start of this hearing defence raised the issue of the testimonial competence of BM.  Crown agreed there was a valid issue on this point and I declared a voir dire to determine whether BM is competent to testify under s. 16 of the Canada Evidence Act.

[2]           It is agreed by Crown and Defence that BM does not have the capacity to understand the nature of an oath or solemn declaration and thus the issue in terms of BM’s competence is whether she is able to communicate the evidence as provided for in s. 16(3) and if so she may testify on a promise to tell the truth.

[3]           I  heard evidence on the voir dire from TR who was qualified to give expert opinion evidence on the functional communication behaviour of BM as a person with intellectual and developmental disabilities including how  best to communicate with her.  I also heard evidence from two persons who have worked closely with BM, LB and SB, and from BM herself.

[4]           BM testified from outside the courtroom by video with a support person present. In response to questions from the Crown she told us that she lives in Smithers near the courthouse and named the people she lives with.  She could not remember the name of the street she lives on.  She told us how old she is, (50), and was able to say where she lived before she moved to her current residence and who she lived with there.  She spoke of activities she likes to do and spoke of what she does in the winter and what she does in the summer.  She mentioned the gardening work she does locally including where she works, what is grown in the garden and that is taken to a local store to be sold.

[5]           She was asked about LB, another witness who has worked with her in the past and she told us that LB used to work with her at her previous residence and spoke of some of the things they did together.

[6]           She was asked where she had gone to school as a child and she named the school she had gone to, two of her teachers and another student who had gone to school there.

[7]           In terms of her understanding of truth and falsehood she was asked if there was a hole in the wall of the room she was testifying from, she said that there was.  She was then asked if it would be true if the prosecutor told someone that she had put the hole there.  She said this would not be true.  She was asked if the prosecutor promised her a cup of coffee did she have to keep her word.  BM stated that you have to keep a promise.  She could not remember what would happen if the Crown didn’t keep her promise but she would feel angry if this happened.

[8]           In cross examination defence counsel explored her ability to distinguish fact from fiction.  He asked her about stories she had read, (or been read), and she spoke of Clifford the Big Red Dog and Snow White and the Seven Dwarves.  She was asked if Clifford is a real dog and first said no he isn’t and then said he is a real dog.  She said he is the only dog who talks.  She said Snow White is a real person as are the dwarves. Though they have not been to Smithers she would like it if they did come here.  She was asked what defence counsel’s job was and she said it was to take care of people and to take care of her.

[9]           She spoke of other animals she likes including koala bears and said that koala bears do not talk.  She did not know what “pretending” was and stated she could not remember when asked what an imagination is.

[10]        In redirect she was asked what “real” means and said she did not know.

[11]        TR works with persons with disabilities as a behavioural consultant.  He has known BM since 1994 though it appears that he did not spend a lot of time with her but rather with persons who worked with her - assisting them with strategies to help her in her day to day life with skill development and behavioural issues.  Prior to September 2013 he would see her from time to time in group settings and would have incidental conversations with her.  He knew her, and how and what she was doing, through others.

[12]         In September 2013 he did a behavioural assessment of BM in the course of which he observed her interactions with others on six different days.

[13]        He described her as a person with a moderate to severe intellectual disability. She is a concrete learner and instructions, information or questions must be put to her using simple, clear and concrete language.  Short sentences are important and she must be given time - sometimes up to three minutes, to respond to questions so she can process what has been said.

[14]        Time is an abstract concept which is not meaningful to her but she does place events in a context - such as “when I woke up I had breakfast”.  She can express herself with words but may just jump into something so the context is not initially clear to listeners.  Her short term working memory is weak but improves if she is given information in short steps and visual cues are used rather than just words.  She has a good long term memory and he has not observed her to have difficulty distinguishing fact from fiction.

[15]        He said that BM’s IQ is somewhere around 40 and probably higher than when it was last tested 20 years ago at a time when she was living in a very stressful environment and when it was measured at 36.  He agreed that she has difficulty with sequencing in terms of repeating a story that she has been told or in describing a procedure such as how to make a sandwich.  She would give an abbreviated version of the task such as “you get a slice of bread and then you eat it”.

[16]        BM is very dependent on her caregivers.  She is impressionable and influenced by the opinions of others, though in a situation where she has a strong feeling she may not be suggestable by others.

[17]        Most of the time, in his experience, BM can cognitively present her own experience.  He has seen her describe events that happened to her but also said there were times when he has seen her not be able to do this.  He then clarified this by describing a situation where he said it was hard to know if she was able to distinguish between an event that happened to her and an event someone else had experienced.

[18]        By agreement of Crown and Defence I was provided a statement of opinion by Dr. H, who had met with and tested BM back in 1994 to the effect that:

[19]        LB is the manager of a group home in Smithers and has worked with adults with intellectual disabilities for 19 years.  She has known BM for 19 years and began to work with her in 2007.  She worked one on one with her and also in small group settings and saw her about 7 times each week from 2007 - 2011.  She worked with BM on socialisation and exercise.  After 2011 she became the director of the [omitted for publishing].  BM began to live there in the fall of 2012 and over the next year and half she saw BM daily, making meals for and with her and taking her to various activities during the day.  She engaged her on a daily basis in conversation about the day to day, i.e. “what she is feeling and what’s happening in her life”.

[20]        She described BM as having a good long term memory and said that she would often relay things that happened many years before.  BM spoke a number of times about having experienced a miscarriage in the past and she subsequently learned from the comment of another person who spoke to BM that this event had in fact happened. It was put to her in cross that without the confirmation of a third party she did not consider BM’s references to things past to be accurate - or at least doubted their accuracy.  Ms B. said she while had no reason to doubt BM’s account - it was important to her to confirm that the event BM had referred to so often had indeed occurred.

[21]        She has a good rapport with BM and described her as a bubbly and talkative person but that she has a dark side and can just shut down if she is upset.  She said honesty was never a problem with BM and in her experience she did not confuse fact with fiction.  BM is a concrete thinker - i.e. what has happened - what is happening. Time is a difficult concept for her.  She would not be able to say what “last month” was. But she would know what had happened in the past.

[22]        She said that in her experience BM has the ability to remember what she has perceived and what people tell her and in her experience BM can distinguish between these. She said BM relates mostly through her own experience i.e. “This is what happened. This is what I did”.  To her knowledge BM has not been mistaken about past events.  BM will initiate conversation about events from the past.  BM knows they happened in the past but cannot give a specific date as to when they occurred.

[23]        SB is a community support worker who has also worked with BM.  She has known BM since she was a child and they both went to school in Telkwa, with BM attending the special needs program.  She worked with BM Monday to Friday each week from the summer of 2013 to the summer of 2014 when BM left the [omitted for publishing] to live elsewhere.  She has had conversations with BM about family, fishing, going to Church or other activities BM does.  She asks her open ended questions and lets BM give her the information.  BM will shut down if you are too wordy with her.  She said that in her experience BM does not confuse fact with fiction and that she has a pretty good memory.  She was unsure as to whether BM could distinguish what she has experienced from what others have told her that she or others have experienced.

[24]        She said that BM understands what make believe is, when telling a story from pictures when the book is in front of her.

[25]        The Supreme Court of Canada has considered the issue of testimonial competence in the context of an adult witness with mental disabilities in R. v. D.A.I., 2012 SCC 5 (CanLII), [2012 1 S.C.R.149.  In that case the Court held that testimonial competence seeks a minimal requirement - that as a condition of being heard by a judge or jury evidence must meet a minimal standard of reliability which is generally met by establishing that a witness has the capacity to understand and answer questions put to her and by bringing home the need to tell the truth by securing a promise to do so.

[26]        The threshold for testimonial competence should not be set too high for persons with disabilities as they may be able to give useful and reliable evidence which will be tested by cross examination and be subject to the other considerations going to the weight to be attached to their evidence.

[27]        The Court observed that a competence voir dire should be brief, though all relevant evidence should be heard before preventing a witness from testifying.  The primary source of evidence regarding the witness’s competence is the witness herself and questioning requires accommodation of her needs.  Other persons who are familiar with the witness in her day to day life may be called as well as properly qualified experts - though preferably those who have had personal and regular contact with the witness.

[28]        In terms of capacity to communicate evidence a judge must explore in a general way whether she can relate concrete events by understanding and responding to questions.  It may also be useful to determine if she can differentiate between true and false statements regarding an everyday situation.

[29]        In DAI the court makes reference to the Ontario Court of Appeal decision in R. v. Farley (1995), 1995 CanLII 3501 (ON CA), 99 CCC (3d)76 in which that court held that the cognitive and communicative components of s. 16(3) set a relatively low threshold for testimonial competence.  A witness must have the capacity to perceive, remember and recount.  Any deficiencies in their particular perception, recollection or narration go to weight and not competence.  Perception entails an ability to differentiate between what a person has perceived and what they may have imagined or been told by others.  Remembering requires an ability to maintain a recollection of one’s perception of events.  The witness must also be able to understand and answer questions.

[30]        Defence submits that testimonial competence and the meaning of the ability to communicate the evidence must be informed by an accused’s right to a fair trial, a lynch pin of which is the ability to meaningfully cross examine a witness.

[31]        He argues that BM does not meet the test set out in R. v. Farley regarding an ability to communicate the evidence because there are significant concerns about her capacity to accurately perceive and recall events from her past given:

[32]        He points to the evidence regarding her recollection of past events as very general and to TR’s evidence that she may have confused her own experience with that of another in recounting a past event.  He says it is very telling that LB, who has worked with her over a number of years and knows her well, was unsure if she could rely on BM’s account of a past event until she had received some confirmation of this event from another person.

[33]        He argues that it is not possible to effectively cross examine someone who thinks that Snow White is a real person and for whom it may be difficult to remember how she perceived an event that occurred in the past.

[34]        I agree with defence that the test for testimonial competence is the same whether at trial or at a preliminary inquiry and that the accused’s fair trial interests regarding the admissibility of evidence at preliminary hearing or no less stringent or compelling than at a trial.

[35]        I was not directed to any authority as to who bears the onus of establishing competence - or its absence - once it has been shown by defence that there is an issue as to a witness’s capacity.  As suggested by defence I approach this issue as a judicial inquiry wherein I must be satisfied that BM meets the threshold set out in s. 16(3).  By “satisfied” I mean that I find it more likely than not.  (The test may not be this high - it may be - that unless I am satisfied (i.e. it is more likely than not) that she is not competent, then I should find that she is - but this is not the approach I am taking.)

[36]        In accordance with the decisions in R. v. DAI and R. v. Farley I must determine whether BM is capable of perceiving, remembering and recounting events.  In accordance with DAI I start my consideration of this with BM herself.  She was able to understand and answer questions about herself, where she lives, what she does and who she does it with.  She was able to provide information about her past.  She understood the difference between truth and falsehood in terms of the factual question as to whether she was responsible for putting a hole in a wall in the witness room.  She understood a promise as something one should keep.

[37]        The fact that she stated that storybook characters she was asked about are “real’ does not persuade me that she is unable to perceive and recall events in her own life experience.  There was neither evidence nor any suggestion that she thinks or has ever thought that she had engaged with and had experiences with any storybook character. Her view of the reality of Clifford or Snow White - can be seen as akin to the belief of a child that Santa Claus or the Easter Bunny is real.  This belief does not have any necessary or logical relationship to a person’s ability to know and recall what they have done and seen and heard in their own lives.

[38]        LB stated that in her experience BM has not been mistaken about past events.  While she was unsure in her own mind about whether the miscarriage which BM had spoken of a number of times had actually occurred, until she received what she considered to be verification of this event from another person, this was not based on her experience that BM is untruthful or makes up stories or is mistaken about her recollections of her past.  It may well be that her doubt was a reflection of her own underlying assumptions or uncertainties about BM’s capacity as a person with intellectual disabilities - but it was not based on observing that BM was confused about past events, or related events as if they had occurred to her when they had not.

[39]        The fact that there is a risk that, as a “general proposition”, persons with a moderate intellectual disability may confabulate events in the past is not particularly helpful to me in this inquiry since I do not know what the degree of this risk is.  There is no evidence that BM has confabulated in the past.  TR’s specific evidence in this regard was to the effect that he was unsure on one occasion if she had confused her own experience with someone else’s.  LB and SB who have worked with BM over a long time period said that in their experience with BM she does not confuse fact and fiction and she can speak of and remember her own experience.

[40]        The fact that she may have difficulty recalling how she perceived a past event is also a general proposition at this point.  None of the witnesses described this as a problem.  I appreciate that this is of concern in a criminal trial to a much greater degree than in day to day life and conversation - particularly in the context of a sexual assault or sexual exploitation prosecution.  However I find that this can be explored on cross examination.

[41]        In this regard I do not accept the defence contention that it would not be possible to conduct a cross examination of BM.  There is no doubt that questions will need to be short and clear.  If propositions are going to be put to her they will need to be phrased in concrete terms.  She will need time to process questions and respond to them.  She may need breaks.  All of these are reasonable accommodations for a witness with mental disabilities.  She was able to respond to defence questions on the voir dire and to the extent that she responds to questions, as she did occasionally on the voir dire by saying she did not know or she could not remember then this will go to the weight which can be attributed to her evidence.

[42]        The fact that she does not have a sense of time in terms of the date or month when an event occurred does not mean she cannot relate the context of an event - and TR said that this is in fact what she does. The concern that she is suggestable and easily influenced can also be explored on cross examination or through other witnesses, and will also go to weight.

[43]        I am satisfied on the evidence I have heard that BM can perceive events in her own life, she can remember them and she can speak of them in answer to questions. To place the bar for testimonial capacity at a level where a general risk of confabulation or a possibility that a witness may have an issue with recalling how she perceived an event at the time it happened is to place it too high and certainly outside the range contemplated by the Supreme Court in R. v. DAI.

[44]        For these reasons I find that BM is a competent witness and may give evidence on promising to tell the truth as provided for in s. 16(3) of the Canada Evidence Act.