WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Doncel, 2022 ONCJ 143

DATE: 2022 03 30

COURT FILE No.: Toronto 20-55001542

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R. v. DIEGO DONCEL

Before Justice Peter N. Fraser

Heard on December 1 & 2, 2021, January 31, 2022, February 1, 2022

Reasons for Judgment released on March 30, 2022

A. Rajan................................................................................................. counsel for the Crown

D. Gravesande...................................................... counsel for the accused Diego Doncel

Fraser J.:

Introduction

[1] Sexual assault cases involving vulnerable members of our society represent a unique challenge to the criminal justice system. In R. v. D.A.I., 2012 SCC 5, the Supreme Court of Canada described that challenge in the following terms:

Sexual assault is an evil. Too frequently, its victims are the vulnerable in our society - children and the mentally handicapped. Yet rules of evidence and criminal procedure, based on the norm of the average witness, may make it difficult for these victims to testify in courts of law. The challenge for the law is to permit the truth to be told, while protecting the right of the accused to a fair trial and guarding against wrongful conviction.

[2] This case gives rise to precisely these concerns. The respondent, Diego Doncel, stands charged that he committed a sexual assault against R.W. on May 27, 2020. R.W. suffers from a mental disability, which severely impacts her ability to testify in a court of law.

[3] Ms. Rajan brings an application on behalf of the Crown, pursuant to s. 6(2) of the Canada Evidence Act, seeking an order allowing R.W. to testify with the assistance of a communication intermediary. This relatively new profession has emerged in Canada to assist people with communication disabilities in a variety of activities and contexts. The participation of a communication intermediary in a criminal trial is a novel legal issue. In this case, the intermediary proposes a combination of visual aids, hand drawn words and sketches, verbal comprehension checks, and physical gestures to assist the witness.

[4] On February 1, 2022, I granted the Crown’s application, with reasons to follow. These are the reasons for my decision.

Factual Background

[5] R.W. suffers from a serious mental disability, which has been characterized variously as global developmental delay, developmental disorder and intellectual cognitive disorder. She also suffers from epileptic seizures. R.W. was 39 years old at the time of the alleged offence. Her cognitive abilities do not correspond precisely to any one particular age, as her strengths are greater in some areas than others. In most respects, her abilities are akin to those of a young elementary school child. In other ways, her deficits are even more profound.

[6] On May 27, 2020, the complainant was with her father at a Shoppers Drug Mart in Toronto. A young man on a bike, alleged to be the respondent, engaged her in conversation and asked if he could take her for ice cream. The complainant’s father requested a name, phone number and address from the man and took a photo of him on his cellular phone. He then permitted R.W. to accompany the man on the bike.

[7] According to R.W.’s videotaped statement to police, the young man lead her into an alley and sexually assaulted her. She returned home after the incident and disclosed the sexual assault to her father.

Procedural History

[8] This application intersects with two other rulings I have made in this case. First, the defence brought a third-party records application, pursuant to s. 278.3 of the Criminal Code. The defence argued that some records sought were relevant to the issue of R.W.’s capacity to testify. In the course of ruling on that application, I reviewed extensive evidence relating to the complainant’s cognitive condition and her ability to communicate the evidence: see R. v. Doncel, 2021 ONCJ 667. I found there was a live issue concerning R.W.’s capacity to testify and allowed the application, in part.

[9] Second, the defence challenged the complainant’s capacity to testify, pursuant to s. 16 of the Canada Evidence Act. I convened an inquiry into that issue in advance of the trial proper. R.W. testified on the inquiry and I ruled that she was competent to testify: R. v. Doncel, 2022 ONCJ 662, February 26, 2022.

Legal Framework

[10] The Crown applies for the assistance of the communication intermediary via section 6 of the Canada Evidence Act. That section provides as follows:

6 (1) If a witness has difficulty communicating by reason of a physical disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.

(2) If a witness with a mental disability is determined under section 16 to have the capacity to give evidence and has difficulty communicating by reason of a disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.

(3) The court may conduct an inquiry to determine if the means by which a witness may be permitted to give evidence under subsection (1) or (2) is necessary and reliable.

[11] There is very little jurisprudence touching on these provisions. That being said, their language and structure reveal something of the standard that ought to apply to their use. Subsection 6(1) addresses people with a physical disability and subsection 6(2) deals with people who have a mental disability. There are two conditions precedent that are common to both subsections: 1) that the witness has a disability and, 2) that the witness “has difficulty communicating” by reason of the disability.

[12] Both subsections go on to permit the use of any means that enables the evidence to be “intelligible.” This language might suggest, in a reflexive way, that a witness would have to be otherwise unintelligible in order to receive the benefit of the section. I find that interpretation is too restrictive. The language of these provisions must be read as a whole and in view of Parliament’s intent (as discussed further on in these reasons). In my view, where the witness has “difficulty communicating” by reason of the disability, it is that condition which controls access to the section. A witness need not be wholly unintelligible in order to be granted assistance.

[13] Subsection 6(2), dealing with mental disability, has the added requirement that the witness “is determined under section 16 to have the capacity to give evidence.” This gives rise to a complex question of statutory interpretation, concerning the relationship between sections 6(2) and 16 of the Canada Evidence Act.

[14] The respondent submits this language represents an additional condition precedent to the use of s. 6(2). The Crown submits that testimonial capacity is not a condition precedent – in other words, the witness need not be found competent to testify first in order to benefit from the assistance contemplated by this section. The Crown argues that sections 6(2) and 16 of the Canada Evidence Act should operate together to allow a mentally disabled witness to be found competent, even where she otherwise would not be.

[15] I am aware of no prior decisions concerning this issue. On their face, the words read like a further condition precedent to the invocation of s. 6(2). The sentence structure appears to make the words conjunctive with the other requirement - that the witness “has difficulty communicating”. In R. v. Osborne, 2017 ONCA 129 at paras. 64-65, the Court of Appeal observed some commonality of purpose as between s. 715.2 of the Criminal Code and s. 6 of the Canada Evidence Act, which were enacted at the same time. The Court found that s. 715.2, which permits a mentally disabled witness to adopt a video recording of her evidence while testifying, was indeed intended to exclude persons who did not meet the minimum threshold of testimonial capacity. In other words, a witness would have to be found competent to testify first, before being afforded the testimonial assistance offered by s. 715.2.

[16] Ultimately, I need not decide this question. The issue came into focus in this case because R.W.’s capacity to testify was challenged by the defence and the Crown applied to have the intermediary assist her at the capacity inquiry itself. I directed that R.W. attempt to testify first without assistance. Having heard her testimony, I found that she met the threshold for testimonial capacity, pursuant to section 16 of the Canada Evidence Act. As a result, the issue of statutory interpretation became moot. R.W. did not require the intermediary to meet the threshold for testimonial capacity. And if capacity is indeed a condition precedent to the use of s. 6(2), the condition is satisfied here.

[17] Some final guidelines can be found in the language of s. 6 of the Canada Evidence Act. The range of available accommodations is broadly defined: the section allows for “any means that enables the evidence to be intelligible.” Subsection 6(3) permits the Court to conduct an inquiry to determine whether the assistance proposed is “necessary and reliable.” The convening of an inquiry is permissive and not mandatory. However, in my view, the language implies a standard of necessity and reliability with respect to the use of the provisions, whether or not a hearing is convened.

Legislative Intent

[18] Section 6 of the Canada Evidence Act was enacted in its current form in 1998, as part of a suite of reforms aimed at increasing access to justice for persons with disabilities. These reforms were introduced through Bill S-5, An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, 1st Sess., 36th Parl., 1997-1998 (assented to May 12, 1998), S.C. 1998, c. 9 ("Bill S-5"). The preamble to Bill S-5 contains the following stated objectives:

Whereas accommodating the needs of persons with disabilities is particularly important to ensure that they can be full participants in and contributors to Canadian society;

And Whereas Parliament is committed to ensuring equal access to the criminal justice system for persons with disabilities.

[19] The Ontario Court of Appeal considered the purpose of these amendments in R. v. Osborne, supra, at paras. 51-58. In that case, the focus was on ss. 715.1 and 715.2 of the Criminal Code, which permit witnesses under eighteen and those with disabilities to adopt a video recording of their evidence while testifying. Those two sections were also introduced by way of Bill S-5. The Court held the sections “share the same overarching mandate, namely, increasing access to justice for vulnerable groups of people and obtaining the best evidence from vulnerable witnesses.” I find that mandate applies equally to s. 6 of the Canada Evidence Act.

[20] These provisions should also be situated more generally within a legislative and jurisprudential trend toward a more inclusive approach to the reception of evidence of vulnerable members of society: R. v. R.W., 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122; R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. D.A.I., supra.

Case Law

[21] I was provided one previous case in which a communication intermediary was permitted. In R. v. Pelton, [2018] O.J. No. 7213 (O.C.J), Epstein J. allowed the complainant to testify at a preliminary inquiry with the assistance of an intermediary, pursuant to s. 6(2) of the Canada Evidence Act. There is very little analysis in that case, as the application appears to have been conceded; with procedural objections effectively deferred to be considered on a point by point basis as the testimony unfolded. That being said, I find there is some precedential value to the decision.

[22] Epstein J. noted the importance of ensuring the evidence came from the witness herself, rather than the intermediary. He proposed a slow and cautious approach and welcomed input from counsel and the intermediary as to what assistance should be offered in each instance. The proposed intermediary in Pelton was Ms. Tychynski-Shimoda - the same person proposed by the Crown in the case at bar. She provided a report and testified on the application in that case, as she did in the case before me, and was found to be qualified to render the proposed assistance.

[23] I am aware of no other case in which the use of a communication intermediary has been contemplated. And s. 6 of the Canada Evidence Act does not otherwise appear to have been used frequently. In R. v. Titchener (2013), 2013 BCCA 64, 333 B.C.A.C. 234 (C.A.), the section was considered as a basis on which the Court could order a sign language interpreter to assist a witness.

[24] In R. v. Carlick, [1999] B.C.J. No. 1144 (S.C.), the Court considered the previous version of the section, which provided that “a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible.” In that case, the two witnesses in question communicated using a unique combination of American-Sign Language, Home-Signing, and other gestures. They were permitted to testify through an interpreter who was capable of employing that same combination of techniques, but who was herself deaf and non-oral. The interpreter then signed to an American Sign Language interpreter, who in turn communicated to the Court in English. The circumstances in Carlick are quite different from those in the case at bar. However, it is an instructive example of the kind of creative accommodation that can be made for a witness with a disability.

Statements Filed on the Application

[25] I have already reviewed much of the evidence filed on this application in connection with the related third-party records application: see R. v. Doncel, 2021 ONCJ 667 at paras. 22-29. These are my observations of the complainant’s statement to police, and those of her father and personal support worker.

[26] According to the complainant’s father, R.W. has an “uneven mixture of maturity and immaturity.” Her reading capability falls at a grade four or five level, but she cannot understand what she reads beyond a single sentence. He reports that, “Her long-term memory is foggy” and that “things shift around.” She can “exaggerate sometimes and can get things mixed up”, but she has no history of lying to him or making up stories. He asserts that the complainant knows right from wrong.

[27] The complainant’s father also states that R.W. “cannot relate to abstract questions.” He has explained that “she doesn’t have a great imagination in that way, but she does tell me what goes on in her life.” He reports that she is “terrible with time and places. She couldn’t tell you where she lives, her address.” He has likened the process of communicating with the complainant to putting together a puzzle. In order to understand her narrative of events, one has to listen to her for a long time and put the pieces together.

[28] The complainant’s personal support worker, C.N., also identified issues surrounding R.W.’s memory. She reports that R.W. is not able to say what she had for lunch the day before, but she is able to remember important events and certain obscure details. C.N. also alluded to R.W.’s difficulty with abstract questions.

[29] My own observations of R.W.’s videotaped statement accord with the information supplied by the complainant’s father and personal support worker. There were obvious cognitive deficits.

[30] R.W. was able to answer certain simple questions in a manner that was responsive and indicated her understanding. However, many other answers were not responsive to the questions asked and raised serious concern about her comprehension. For example, R.W. was asked when in the sequence of events she was pushed down and she answered, “It was the very corner of the wall.” She was asked how long the man’s penis was in her mouth and she answered, “At twelve o’clock in the afternoon.” When asked if it was a short time or a long time, she answered it was “four times.” When asked how tall the man was, she answered, “He’s white.” And she provided a long series of unresponsive answers to repeated questions about how the assault ended.

[31] In general, the complainant had a very difficult time describing events in any kind of chronological sequence. She did not appear to know how old she was, as she deferred this question to her father. Some issues with vocabulary were also apparent. R.W. did not appear to understand the distinction between breasts and nipples. She appeared to confuse the words insult and assault. And she did not know what the word detective meant.

[32] This material previously lead me to conclude there was a live issue as to the complainant’s capacity to testify and to convene a hearing into that issue. The statements clearly reveal that R.W. has great difficulty communicating.

Evidence of the Complainant

[33] R.W. testified before me in person on the inquiry into her testimonial capacity. She testified without the assistance of the communication intermediary. R.W. was questioned by the Crown and by the Court in the manner directed by the governing jurisprudence and by s. 16 of the Canada Evidence Act. The following observations of her evidence, as originally set out in my ruling on capacity, are relevant to this application: R. v. Doncel, 2022 ONCJ 662, February 26, 2022 at paras. 19-22.

[34] R.W. provided her date of birth to the Court. She explained that she attended programming at St. Margaret’s Church on Wednesdays and Fridays, where she engaged in activities such as sewing, baking and cooking. She said that she has friends there and provided their names. She testified that she lives with her father and traveled to the courthouse via two buses that morning. R.W. testified that she liked to listen music and enjoyed songs by Lady Gaga and Britney Spears.

[35] R.W. said she had eggs and toast for breakfast. The Crown asked if it would be right or wrong to say that she had eaten pancakes for breakfast. R.W. said it would be wrong. She rejected the suggestion that her shirt was yellow and correctly identified it as being black and silver. She rejected the suggestion that it was summertime and correctly observed there was snow outside. R.W. correctly indicated there were windows in the courtroom, there was no hole in the ceiling and that my robes were black. All of these answers suggested a basic ability to perceive, recall and communicate events in a courtroom setting.

[36] Some deficiencies were apparent too. R.W. did not understand the nature of an oath or solemn affirmation. She was asked about the victim witness assistance worker seated beside her in court. She claimed to have met this worker for the first time that morning. The Crown acknowledged this was false as the two had met before. This was a cause for some concern (though I note that everyone in the courtroom was masked on account of the COVID-19 pandemic). R.W. was also inconsistent about what she had done over the weekend.

[37] R.W.’s cognitive deficits were apparent in person, just as they had been in her video statement. However, the questions posed at the inquiry were appropriately simple and short, which allowed R.W. to communicate much more successfully: R. v. D.A.I., supra, at para. 78. For the most part, her answers were responsive to questions. She appeared to understand what she was being asked and was able to respond in a way that I could understand.

[38] At the end of the capacity inquiry, I found that R.W. had a basic ability to perceive, recall and communicate the contentious portions of her evidence as required by s. 16 of the Canada Evidence Act and the governing authorities: R. v. D.A.I., supra, at paras. 64, 74-82. I concluded that the deficiencies which were identified should properly dealt with as matters of weight in the context of the trial proper: R. v. Parrott, 2001 SCC 3, at para. 56; R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at paras. 13-14. There is no question that R.W. would have difficulty communicating her evidence to the Court without testimonial assistance.

Evidence of the Communication Intermediary

[39] Bobi Tychynski-Shimoda testified on the application. She is a speech language pathologist, which is a regulated heath profession in Ontario dealing with communication disorders. This profession is governed by the College of Audiologists and Speech Language Pathologists of Ontario and has its own Code of Ethics, which requires members to adopt “fair, equitable and just actions in any given professional situation.”

[40] Ms. Tychynski-Shimoda was designated as a communication intermediary by Communication Disabilities Access Canada (CDAC) in 2013. This designation requires, at minimum, two years of experience as a speech language pathologist and involves a standardized program of education and training. Communication intermediaries are a regulated profession in Canada and are governed by the CDAC. They are bound by a separate Code of Ethics, which requires them to “remain neutral and impartial” in all professional interactions.

[41] Prior to testifying, Ms. Tychynski-Shimoda conducted an extensive assessment of R.W.’s cognitive functioning. She applied an array of standardized tests designed to measure R.W.’s abilities with respect to several areas, including: vocabulary, sentence comprehension, visual and verbal memory, problem solving, semantic relationships, comprehension of narrative sequences and use of tense markers in speech. R.W.’s performance was at an age equivalent ranging from three to six years in each area examined. R.W. scored at the 6th percentile on one instrument used to assess her ability to organize information. She scored within the “severely impaired” range on another measure designed to evaluate cognitive-communication skills. The results of these assessments correspond with my own findings about R.W.’s abilities, based on the balance of the evidence lead on the application.

[42] Ms. Tychynski-Shimoda provided a detailed set of recommendations and proposed strategies in order to assist R.W. while testifying. She recommended that counsel use simple vocabulary and pose questions using simple, short sentences. She recommended an in-person proceeding (rather than remote), frequent breaks, and that R.W. testify in the mornings if possible. Ms. Tychynski-Shimoda proposed that she be seated next to R.W. in court and that she be permitted to use a series of pre-prepared visual aids, hand-drawn sketches, verbal comprehension checks and hand gestures to assist.

[43] Several examples of commonly used visual aids were filed on the application or otherwise described by the intermediary (though several hundred exist). Some of the aids use pictures of human forms to depict physical acts like standing, sitting, touching or having sex. Some illustrate temporal concepts like before and after. Others depict spatial relationships like over and under. One of the visual aids sets out the five “wh” questions (who, what when, where and why) and depicts their respective meanings using pictures. This would be of particular assistance to R.W., given that she has difficulty distinguishing between these words.

[44] I was impressed by Ms. Tychynski-Shimoda. She was a thoughtful witness, whose competence in her field was evident. She demonstrated an understanding of the adversarial process, the need for impartiality, and the importance of interpreting questions in a non-leading manner. She was open to modifying her technique at the direction of the Court in order to respect the special dynamics of the criminal trial process. Ms. Tychynski-Shimoda viewed herself as an officer of the Court, whose role was to offer support to individuals with a communication difficulty and assist the Court in receiving their evidence.

[45] I am satisfied that Ms. Tychynski-Shimoda has particular skills and training that will allow her to assist R.W. in communicating to the Court. I am confident she will act with professionalism and impartiality.

Areas of Concern

[46] The involvement of a communication intermediary gives rise to a number of potential concerns. I would identify those concerns as centering on the following areas: the reliability of the interpretive assistance, interference with the pace and rhythm of cross-examination, the possibility of undue influence by the intermediary herself, and the problem of reviewability.

[47] The first issue has to do with reliability. In many ways, the kind of communicative assistance proposed here is akin to that of an interpreter. However, interpretation between languages involves standardized terms of reference. While different interpreters may convey the meaning of what is said in slightly different ways, there are accepted translations for most words and phrases. What is proposed by the communication intermediary is far more individualized and case-specific. The assistance offered will depend upon the particular circumstances of each exchange between counsel and the witness. Ms. Tychynski-Shimoda’s observations of R.W., and her professional judgment, will factor heavily into what kinds of assistance are given.

[48] As a result, the involvement of a communication intermediary may inject a degree of subjectivity into the proceeding. In my view, this risk can be mitigated almost entirely by confining the intermediary’s involvement to the questions posed by counsel. If the questions are interpreted, and not the answers, the Court will hear the testimony from the witness herself, unfiltered by any interpretive aid. If the witness has not understood the question, that will most likely become clear from the nature of the answer. Any required clarifications can be achieved through further questions.

[49] The second issue is the impact of the intermediary upon the pace and rhythm of cross-examination. The kinds of assistance proposed in this case will no doubt slow the pace of questioning and give the witness additional time to consider and formulate answers. This has the potential to mask uncertainty or prevarication on the part of the witness. I would observe that witnesses routinely testify through interpreters in our courts, which gives rise to the same set of concerns.

[50] I also find that these concerns can be mitigated somewhat by constructing a procedure whereby the witness attempts an answer first, without assistance. If the answer suggests a lack of comprehension, or one of the parties is of the view that assistance is needed, the intermediary can be called upon to assist. This procedure will minimize interruptions and allow for some simple questions to be answered in the normal way. This issue should not prevent the witness from having the assistance she needs to communicate, though the Court should be mindful of these considerations in assessing her evidence.

[51] The third area of concern is the prospect of undue interference by the communication intermediary. As this is a regulated profession with its own code of ethics, licensing standards, and governing body, I find this prospect to be remote. Counsel and the Court would be well positioned to detect any such interference. In the circumstances of this case, I am entirely satisfied that Ms. Tychynski-Shimoda will act with professionalism and impartiality.

[52] The fourth issue has to do with the creation of a complete court record. In order for the proceedings to be reviewable, there has to be clarity with respect to what the communication intermediary does to assist the witness. In my view, this can be accomplished with some planning and care. Any pre-prepared visual aids can be marked as exhibits and identified by number when they are used. Any hand drawn sketches or writings can be done on separate pieces of paper, then numbered and preserved as exhibits. Hand gestures of any significance can be described for the record by counsel or the Court.

Conclusions

[53] I find the purpose of s. 6(2) of the Canada Evidence Act is to increase access to justice for vulnerable groups of people and obtain the best evidence from vulnerable witnesses: R. v. Osborne, supra, at paras. 51-58. The section must be interpreted in a manner that gives effect to this purpose, while also respecting the fundamental right of an accused person to make full answer and defence. In achieving this balance, it should be remembered that the principles of fundamental justice embrace more than just the rights of the accused. Trial fairness also includes “fairness in the eyes of the community and the complainant”: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, para. 72.

[54] I would summarize my conclusions about the operation of s. 6(2) of the Canada Evidence Act in the following terms. Two conditions must be met for the section to be invoked: first, the witness must have a mental disability; second, the witness must have “difficulty communicating” by reason of the disability. These conditions control access to the provision. Despite the wording, a witness need not be wholly unintelligible in order to be granted assistance. Testimonial capacity under section 16 of the Canada Evidence Act may represent a third condition precedent. However, I decline to decide that point, as that issue is moot in the circumstances of this case. The range of accommodations that may be permitted under this section is broadly defined, but the proposed assistance must be “necessary and reliable.”

[55] In the instant case, the conditions precedent are satisfied. R.W. has a mental disability. She clearly has difficulty communicating by reason of the disability. Assuming, without deciding, that testimonial capacity is required, I find that R.W. is competent to testify pursuant to s. 16 of the Canada Evidence Act.

[56] I find the communication intermediary is necessary to facilitate a full and candid account of the acts complained of, and to allow R.W. a fair opportunity to participate in these proceedings and thereby receive equal protection under the law. The nature of the proposed assistance is sufficiently reliable to warrant its use in this trial. The concerns that arise in this context can be sufficiently mitigated by procedures that allow the witness to answer unaided where possible and limit the interpretive assistance to the questions of counsel, rather than the answers of the witness.

[57] I would not discount the possibility that some degree of imprecision is implicit in this process. In my view, however, the use of the communication intermediary will yield far better evidence then what would be received if R.W. were to testify without assistance. And as the Supreme Court observed in R. v. D.A.I., supra, at para. 72, in the context of testimonial capacity, allowing the witness to testify is only the first step in the trial process:

The witness’s evidence will be tested by cross-examination. The trier of fact will observe the witness's demeanour and the way she answers the questions. The result may be that the trier of fact does not accept the witness's evidence, accepts only part of her evidence, or reduces the weight accorded to her evidence. This is a task that judges and juries perform routinely in a myriad of cases involving witnesses of unchallenged as well as challenged mental ability.

[58] For the foregoing reasons, the Crown’s application is granted. R.W. will be permitted to testify with the assistance of a communication intermediary.

Procedure

[59] When I issued my ruling on this matter on February 1, 2022, I set out the procedure by which the communication intermediary would assist R.W. I include the details of that procedure here:

• Questions will first be posed by counsel without any intervention by the communication intermediary.
• The witness will attempt to answer without assistance first.
• If the answer suggests that assistance may be necessary, either counsel may make that request of the Court.
• If I am satisfied that assistance is required, I will ask the intermediary to briefly identify the nature of the assistance she proposes.
• If permitted by the Court, the intermediary will help interpret the question in the manner she has proposed.
• The witness will answer.
• In some instances, the intermediary’s brief description of the proposed assistance, together with her verbal interaction with the witness, will suffice for the purposes of the record. In other cases, where more extensive gesturing is employed, additional comments may be required in order for the record to reflect what has been done.
• Any drawings or notations made by the intermediary will be done on separate pieces of paper and will be numbered sequentially. The number will be noted for the record in each case and the entire package of papers will be made an exhibit at the end.
• Where standard visual aids are used, they will be identified for the record. Any such aids will be made exhibits at the end.
• For the most part, this procedure should take place in the presence of the witness.
• Objections may be registered at any point in the procedure; however, I expect both counsel to assist the Court in receiving the witness’s evidence efficiently and fairly.
• If the intermediary herself is of the view that a question was not understood, and neither counsel has asked for assistance, she may bring the issue to the attention of the Court in the absence of the witness. I would expect these instances to be rare.
• While this process may be cumbersome at first, I expect it will become more streamlined as all parties become accustomed to the witness’s manner of communicating and the various forms of assistance used by the intermediary. Certain kinds of assistance will likely become automatic.
• These directions may be modified as the circumstances require, and in light of the specific manner in which the witness ultimately comes to communicate her evidence to the Court.

[60] This was to be a starting point. My expectation was that modifications would be necessary as the testimony progressed and as all participants came to better understand the nature of the challenge presented to us.

Released: March 30, 2022

Signed: Justice Peter N. Fraser