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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Her Majesty the Queen v. Diego Doncel, 2022 ONCJ 662

ONTARIO COURT OF JUSTICE

DATE: 2022 02 26 COURT FILE No.: Toronto 20-55001542

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DIEGO DONCEL

Before: Justice Peter N. Fraser

Heard on: January 31, 2022 Reasons for Judgment released on: February 26, 2022

Counsel: A. Rajan................................................................................................. counsel for the Crown D. Gravesande...................................................... counsel for the accused Diego Doncel

Fraser J.:

[1] The applicant stands charged that he committed a sexual assault against R.W. on May 27, 2020. The defence challenged R.W.’s capacity to testify, pursuant to s. 16 of the Canada Evidence Act. I found there was an issue as to the capacity of this witness and convened an inquiry into the matter.

[2] On January 31, 2022, I ruled that R.W. was competent to testify, pursuant to s. 16(3). Specifically, I found that she did not understand the nature of an oath or solemn affirmation, but she was able to communicate the evidence and could testify on promising to tell the truth. These are the reasons for my decision.

Factual Background

[3] R.W. suffers from a severe 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 accurately to any one particular age range, as her strengths are greater in some areas than others. In many respects, her abilities are akin to those of a young elementary school child. In other ways, her deficits are even more profound.

[4] 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 applicant, 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.

[5] 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.

The Test for Capacity

[6] Capacity to testify is governed by section 16 of the Canada Evidence Act, which provides as follows:

Witness whose capacity is in question

16 (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and

(b) whether the person is able to communicate the evidence.

Testimony under oath or solemn affirmation

(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

Testimony on promise to tell truth

(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

No questions regarding understanding of promise

(3.1) A person referred to in subsection (3) shall not be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.

Inability to testify

(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

Burden as to capacity of witness

(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

[7] Section 16(3) above represents the minimum standard for testimonial competence involving an adult witness with a mental disability. The section imposes two requirements: (1) the ability to communicate the evidence and (2) a promise to tell the truth. There is no additional requirement that the witness demonstrate, in the abstract, an understanding of the nature of the obligation to tell the truth. The inquiry into the witness’ ability to communicate the evidence requires the trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions: R. v. D.A.I., 2012 SCC 5 at paras. 64, 74, 82.

[8] The Supreme Court has held that the phrase “communicate the evidence” in s. 16 of the Canada Evidence Act indicates more than a mere verbal ability. Instead, testimonial competence requires: (1) the capacity to observe (and interpret); (2) the capacity to recollect; and (3) the capacity to communicate. The threshold is not a high one. What is required is the basic ability to perceive, remember and communicate regarding the contentious parts of the witness’ evidence with some independence and not entirely in response to suggestive questions. This being established, deficiencies of perception and recollection of the events at issue may be dealt with as matters of weight: see R. v. D.A.I., supra, at para. 72; R. v. Marquard, [1993] 4 S.C.R. 223 at paras. 13-14; R. v. Parrott, 2001 SCC 3 at para. 56, R. v. Caron, [1994] O.J. No. 1591 at para. 12.

[9] In R. v. D.A.I., supra, at para. 72, the Supreme Court warned against the setting the threshold for testimonial competence too high for adults with mental disabilities:

This reflects the fact that such witnesses may be capable of giving useful, relevant and reliable evidence. It also reflects the fact that allowing the witness to testify is only the first step in the 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.

Evidence Filed on the Capacity Inquiry

[10] I have already reviewed much of the evidence lead on this competency inquiry in connection with a related third-party records application: see R. v. Doncel, 2021 ONCJ 667 at paras. 22-29. I reproduce here my observations of the complainant’s statement to police, and those of her father and personal support worker. This material lead me to conclude there was an issue as to R.W.’s capacity to testify.

[11] 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.

[12] 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.

[13] The complainant’s personal support worker also identified issues surrounding R.W.’s memory. C.N. 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. She also alluded to R.W.’s difficulty with abstract questions.

[14] 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.

[15] 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.

[16] 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 know what the word detective meant. She appeared to confuse the words insult and assault. And she did not appear to understand the distinction between breasts and nipples.

[17] This evidence raises concerns about R.W.’s testimonial capacity, but it is certainly not determinate. The primary source of evidence in this inquiry is the performance of the witness herself: R. v. D.A.I., supra, at para. 78.

Testimony of R.W.

[18] R.W. testified before me in person. She testified without the assistance of a communication intermediary – which is the subject of a separate application for testimonial assistance. 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.

[19] 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 Ga Ga and Brittany Spears.

[20] 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.

[21] 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.

[22] 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.

[23] Taking into account all the evidence lead on this inquiry, I find that R.W. has a basic ability to perceive, recall and communicate the contentious portions of her evidence. The weaknesses I have identified do not lead me to conclude that she is unable to communicate the evidence for the purposes of s. 16 of the Canada Evidence Act. Instead, I find that these are the kinds of deficiencies that are properly dealt with as matters of weight in the context of the trial proper: R. v. Parrott, supra, at para. 56; R. v. Marquard, supra, at paras. 13-14.

[24] I find that R.W. does not understand the nature of an oath or solemn affirmation; however, she is able to communicate the evidence to the standard required for testimonial competence. She will be permitted to testify on promising to tell the truth.

Released: February 26, 2022 Signed: Justice Peter N. Fraser